Memorandum—urgency hearing re Dairy Board restructuring
OTHER COURTS AND TRIBUNALS
High Court—Mäori land and the RMA 1991
High Court—preventing sale of family land
High Court—rating of Mäori land
Environment Court—Mäori marine farming applications
District Court—traffic conviction, blood sample refused as tapu
Resource Management Amendment Bill 1999
Law Commission—Coroner review
MÄORI LAND COURT & APPELLATE COURT
No items this month.
Tamati & Others for Parininihi Ki Waitotara Incorporation and dairy industry restructuring
Wai 790. Memorandum re urgency. 24 September 1999
Parininihi Ki Waitotara (PKW) is an incorporation managing the leasing of Mäori freehold land to farmers in Taranaki, including 250 leases (14,000 of 20,354 hectares) to dairy farmers and a further 104 leases to sheep and cattle farmers. The leases have for many years contained conditions imposed by legislation which are disadvantageous to the Mäori lessors and highly advantageous to the lessees. The Mäori Reserved Land Amendment Act 1997 provided for the gradual change in those conditions, including a move to 7 yearly rent reviews at market rental based on the unimproved value of the land, and compensation to the lessors for an extended period of delay in moving to a market rental system (see Mäori LR Dec 1997/Jan 1998, November 1997). The amendment also provided that the lessors should have first right of refusal whenever a lessee sought to sell their interest. The amendment did not make any settlement for the historic inability of the Mäori lessors to obtain a market rental for their lands. The 1997 amendment explicitly recognised that that was a matter for separate settlement negotiations – which were ongoing when this urgency application was received.
This urgency application concerned the Dairy Industry Restructuring Act 1999 which removed the monopoly of the NZ Dairy Board and allowing existing dairy co-operatives to merge into one large co-operative. The changes included the “unbundling” of the return paid by co-operatives to dairy farmers to separate the price of the milk supplied from the dividend on the shares held by the farmer in the co-operative. This would allow farmers to distinguish the true value of the milk they supplied from the value of other activities the co-operatives undertook on their behalf.
According to PKW, the results of this change would be:
• Reduced prices or values for dairy farms;
• New entrants paying less for such farms – but more for the shares associated with the farms;
• The value of nearby sheep and cattle farms would drop with the drop in value in dairy farms.
It was claimed that the lower land values would mean lower income through rents to PKW as lessor and therefore a diminished capacity to exercise the first right of refusal as leases came up for sale. At the same time, the cost of buying the co-operative company shares associated with each farm would increase.
PKW, while not opposed to the restructuring, argued that compensation was due (possibly in the form of shares in the new single co-operative) for the change in circumstances since the 1997 legislation—which was passed on the basis that the market structure would remain substantially as it was at that date.
The Crown argued that no urgent hearing was required since, among other matters, the effects of the restructuring would not be known for some time, the 1997 legislation accepted that there would have to be further hearings in the future about remedies for the loss of historic rentals in any event, Mäori had been aware of and participated in select committee hearings which considered the dairy industry restructuring legislation, and any financial effects resulting from the separation of returns paid to farmers were not actually Crown actions.
The tribunal thought that the key issue was whether the Crown was obliged to take steps to alleviate any outcomes from the dairy industry restructuring which might further reduce the ability of the Mäori owners to recover possession of their lands. It considered that, in light of the Taranaki Report, which found that Mäori had been wrongly denied possession of reserves, there was a “compelling case” that the Crown is obliged to assist Mäori to recover possession of their lands—and the 1997 amendment was a step towards that end.
It may be that in such circumstances that the Crown has a continuing obligation to promote the repossession of land by Mäori where this is not unfair to other parties, until Mäori have achieved possession in fact. The 1997 amendment was not to effectuate a settlement with Mäori to recover possession, but to achieve the best arrangement to facilitate eventual recovery in the circumstances that then prevailed. Arguably, the Crown should review its position in the light of new circumstances.
The tribunal urged the parties to consult over the matter. The matter would be heard urgently if those discussions failed or did not eventuate. The claimants remained prejudiced by the Crown failure to deliver land for more than a century. “There is a strong case that the failure to address certain issues resulting from the unbundling of dairy co-op shares will worsen their chances of recovering possession in future, and that the Crown should investigate all possibilities to alleviate any likely consequences. There is a strong case that that investigation should be conducted now.”
[Ed: although brief, this memorandum arguably suggests a new Crown duty under the Treaty, or an extension of existing duties. That is, the Crown may be obliged to revisit schemes which provide for the eventual return of land or assets to Mäori, if those schemes are in danger of failing in their objective because of a change in circumstances since the time when the scheme was set up.]
OTHER COURTS AND TRIBUNALS
Hastings District Council v Mäori Land Court & McGuire, Makea
CP 11/99. High Court Napier. Goddard J
This appeal concerned an interim injunction issued by the Mäori Land Court under s19(1)(a) Te Ture Whenua Mäori Act 1993 (TTWMA 1993) preventing the Hastings District Council from proceeding to designate certain Mäori lands as part of a route for a new highway under the Resource Management Act 1991 (RMA 1991) (see Mäori LR July 1999). The essential questions were whether the Mäori Land Court has power to prevent a territorial authority from exercising powers given to it under the RMA 1991 (s168A), to notify a requirement for a designation where that would affect Mäori freehold land, on the basis that the action of the authority might be an “actual or threatened trespass or other injury to Mäori freehold land” (s19(1)(a) TTWMA 1993).
Held: The Mäori Land Court did not have the power claimed. Examining the relevant provisions of the RMA 1991 it could be seen that:
• The use of land, an important natural resource, is subject to regulation by the RMA 1991 with the primary purpose of sustainable management.
• Oversight of resource management matters is the responsibility of the Environment Court – including resource management matters relating to Mäori land.
• A number of provisions of the RMA 1991 (s6(e), s7(a), s8) expressly provide for Mäori values to be accorded weight in relation to resource management issues affecting Mäori land. The importance of Mäori customary law is also expressly recognised (s14(3)(c) re geothermal water & 39(2)(b) re tikanga Mäori in respect of procedure). Mäori aspirations, values and processes must be afforded protection whenever the RMA 1991 is applied.
• There are also duties under the RMA 1991 to consult and/or notify tangata whenua in planning (s64(1), cls 2(2) & 3(1)(d) Part I First Schedule, ss 60(1), 65(1), 61(2)(a), 66(2)(c), 73(1), 74(2)(b)) and for resource consents (s93(1)(f), s93(1)(e)). While there is no statutory requirement to consult about a requirement for a designation, consultation may occur (s168(3)(e)/1991).
• Significantly, the RMA 1991 intends that the Environment Court has available to it expertise in matters relating to Mäori customary law. Environment commissioners of the Environment Court may be appointed on account of their expertise in matters relating to the Treaty and kaupapa Mäori (s253(e)/1991).
The designation procedure under the RMA 1991 (ss168A & 171) provides for:
• Public notification of the requirement for a designation;
• Public submissions and hearings;
• A decision by the territorial authority;
• A right of appeal from that decision.
In the period after notification, and until a designation is approved or withdrawn, no one may use the land in any way which would hinder the project or public work without prior written authorisation from the requiring authority (s178(3)/1991).
Once a designation comes into effect, the requiring authority can do anything on the land in accordance with the designation, and can prevent other persons using the land in a way which would hinder the work. An owner of land affected by a designation may ask the Environment Court to order that the land be taken by the requiring authority if its worth to the owner has been diminished by the designation. The Public Works Act applies in such situations.
On the other hand, while TTWMA 1993 (Preamble, ss2 & 17) provides that the retention use, development and control of Mäori land by Mäori is a guiding principle of the 1993 Act, there are express provisions in the Act which clearly anticipate the loss of Mäori land under other legislation. Mäori freehold land could lose that status where another Act expressly provides for that to occur (s130/1993). The Public Works Act and RMA 1991 are such Acts.
In addition, TTWMA 1993 makes reference to the RMA 1991 and the Public Works Act, namely s301/1993 dealing with the subdivision of land and subdivision provisions of the RMA 1991. This includes appeals to the Environment Court about decisions of consent authorities over the subdivision of Mäori land. And s303/1993 provides for the Mäori Land Court to make all necessary orders to ensure that contributions to reserves and roads are made from Mäori land where a subdivision over the land occurs. A territorial authority may specifically waive reserve requirements (s305/1993) and there are specific exemptions of some Mäori land from reserve requirements (s302/1993).
The district council argued that the RMA 1991 was a complete code in its own right, and that Parliament had clearly intended that the two Acts were prima facie distinct, except where they specifically provided for some interface between them. The Mäori respondents argued that there was nothing to limit the application of TTWMA 1993 to the RMA 1991. In addition, there was in the RMA 1991 no right of appeal against a decision to notify a requirement (as opposed to the hearing about the requirement itself), even though notification had an immediate effect on the use which can be made of the land (through the operation of s178(3)/1991).
However, the High Court found that the Mäori Land Court is a creature of statue and has no inherent jurisdiction. In AG v Mäori Land Court  1 NZLR 689 at 698 (see Mäori LR July 1999 p2) the Court of Appeal considered the major provisions governing the jurisdiction to the land court and that analysis emphasised the particularity with which Parliament defined the scope of TTWMA 1993 and the jurisdiction of the land court. Section 287/1993 gives the land court exclusive jurisdiction to make partition, amalgamation and other orders. However, that broad power is expressly limited to the purpose of assisting Mäori to make best use of their land (s286/1993).
“… the careful manner in which Parliament has defined the Mäori Land Court’s role and the expressly provided interface between the Whenua Mäori Act and other legislation leads to the irresistible view that, on the plain face of the statute, the Mäori Land Court has not been granted jurisdiction to make interim orders in relation to lawful designations under the RMA. If such jurisdiction had been contemplated, one would expect Parliament to have expressly provided a clear interface between the two pieces of legislation accordingly: no such interface has however been prescribed.”
The Preamble and s2/1993 are general provisions and do not provide any specific powers. They can be given weight in applying other provisions of the 1993 Act, but do not allow a court to take the language of other sections of TTWMA 1993 beyond their plain language.
There was no way in which the decision to notify the requirement was a trespass or some other injury to land (under s19(1)(a)/1993), since the action would have to be unlawful to constitute a trespass or injury. The simple decision of the territorial authority to notify could not be unlawful. Thus no serious question for further hearing arose, and the land court should not have issued the injunction. It was however conceivable that, if a flaw in the process of making the decision to notify could be shown, then a council could be said to be acting unlawfully, but that was not the case here. No questions about the adequacy of consultation or a flaw in procedure were in issue.
The RMA 1991 explicitly accommodates Mäori issues and requires that Mäori values be taken into account. Part VIII/1991 which deals with designations is a comprehensive and exhaustive code and must be construed as encompassing and embracing the principles of protection of Mäori land as a taonga tuku iho of special significance to Mäori people and thus in accordance with the principles and object of TTWMA 1993. Consequently, the “special relationship” between Mäori and land referred to in TTWMA 1993 is not “injured” by lawful actions under Part VIII/1991.
The argument that there is no procedural safeguard against the decision to notify—since there is no right of appeal from such a decision—should also be disregarded. The RMA 1991 provides procedural safeguards in provisions relating to consultation before a requirement is notified, provisions relating to public notice of the requirement for a designation and public hearings, express rights of appeal to the Environment Court and the express anticipation that the Environment Court will have specialist expertise available to it wherever matters relating to the Treaty of Waitangi and kaupapa Mäori are raised.
Although in this situation the body seeking the designation (the Hastings District Council) was also the body able to grant it, that decision was appealable to the Environment Court which would hear the matter afresh and was not limited to evidence which had been produced when the council considered the issue.
In addition, the actual decision to notify could be reviewed in the High Court under the Judicature Amendment Act 1972 if it was flawed in a procedural sense (this, despite s296/1993, which provides that, if there is a right of appeal about any matter under the RMA 1991, that right must be exercised in the Environment Court before the matter can be taken to the High Court). The High Court was the appropriate body to consider any issues about the adequacy of the council procedure.
In conclusion, not only does TTWMA 1993 not provide jurisdiction for the Mäori Land Court to overrule actions taken lawfully by territorial authorities under the RMA 1991, but any alleged unlawful actions of a territorial authority are the responsibility of the Environment Court on appeal and the High Court on review if no right of appeal lies in the Environment Court.
[Ed: this decision overrules the Mäori Land Court decision noted at Mäori LR July 1999 p1. The judgment raises the intriguing possibility that, where a territorial authority makes a decision under the RMA 1991 affecting Mäori land, and there is some procedural error in its decision-making, that matter may be taken to the Mäori Land Court. However, the judgment appears to close the door on that possibility with its conclusion that, at least in the case of designations, the High Court is the appropriate body to consider procedural errors under the RMA 1991.]
Apatu, Fisher, Apatu v Registrar General of Land
M59/99, M60/99, M61/99. High Court Napier. Master JCA Thomson
This case concerned 8.7766 hectares which had been in the ownership of the Apatu family for many years and had spiritual significance for the family. In 1990 the land was purchased by Wilson Apatu, from his father, Ashley Apatu. Wilson’s brother, Royston, told the Court that it had been agreed by the family that he (Royston) should be the caretaker or kaitiaki of the land. He would have occupation rights and the ability to purchase from Wilson in the future if he wished. Royston grew asparagus on the land.
Wilson did not live on the land and got hopelessly in arrears in respect of 2 mortgages over the land. A mortgagee sale by public auction was arranged. Ashley Apatu applied to the Mäori Land Court for an interim injunction, arguing that the land should change its status to Mäori land. While an interim injunction was obtained, it was dismissed at a full hearing in the land court. The auction was however abandoned.
The first mortgagee then arranged a private sale, conditional on the first mortgagee ensuring that the registration of the transfer to the new owner was completed, and opposing any attempts by the Apatu family to uphold caveats against dealings which they had lodged over the land.
The second mortgagees, who were the aunt and uncle of Wilson Apatu, also supported a forced sale. They had advanced money to prevent an earlier mortgagee sale, but now believed that it was not possible for the family to hold on to the land. There had been seven purported conditional sales arranged for the land—some coinciding with past efforts by mortgagees to force a sale. None had been completed.
Royston Apatu argued that the caveat over the land should remain because of a written agreement between himself and Wilson that Royston would occupy the property, with an option to purchase, and that he would care for waahi tapu and ancestral burial sites on the land. This agreement, it was argued, gave him a beneficial interest in the land—namely a lease and an option to purchase.
The Court rejected this argument on the basis that, while the document might be viewed as an informal lease, any such lease was obviously conditional on Wilson meeting the mortgage payments, the purported lease had not been notified to the mortgagees when money was obtained from them, and there was definitely no actual consent of the mortgagees to the lease as is required under the Land Transfer Act 1952 (s105). In any event, a lease for more than 3 years is not binding unless registered.
Even if Royston had had an arguable case for a beneficial interest, the Court would have exercised its discretion in favour of the first mortgagee on the basis of the balance of convenience. Wilson had not opposed the sale of the land, and the sale was supported by his own aunt and uncle who had previously tried to assist in preventing the loss of the land. Royston had not advanced, and apparently had no money to purchase the land. Accordingly, the caveats would be removed.
P Te Whata v Western Bay of Plenty District Council
AP15/99. High Court Tauranga. 13 September 1999. Chambers J
The respondent, the Western Bay of Plenty District Council, had obtained in the District Court a judgment by default against the appellant, Mr Te Whata, for unpaid rates in relation to land that was Mäori freehold land in multiple ownership. Mr Te Whata appealed the decision in the High Court.
The relevant statutory provisions were contained in Part XIII of the Rating Powers Act 1988. Section 182(1)/1988 provides that Mäori freehold land is liable for rates in the same manner as if it were general land, except where Part XIII provides otherwise and subject to s6/1988 (which provides that certain lands are deemed to be non-rateable).
Mr Te Whata contended that Part XIII did provide an exception in that the land in question was covered by s 185/1988, which establishes a special rating regime where a person is in actual occupation of the land. In particular, Mr Te Whata wished to take advantage of a partial dispensation provided by s185(5)/1988:
“Where in any action for the recovery of rates under this section the Court hearing the action is satisfied that the person from whom the rates are claimed was not in occupation of the whole of the land for which the rates are claimed for the whole of the relevant rating period, the Court, if it is satisfied that the amount of the rates claimed is disproportionately large in relation to what would be a reasonable rental or payment for the actual occupation, may give judgment for such portion of the amount claimed as it considers to be reasonable in the circumstances.”
However, that provision only applied to land which was (1) Mäori freehold land in multiple ownership, (2) not vested in a trustee and (3) where the name of the occupier had not been entered in the valuation roll. (s185(1) & (3)/1988).
There was no dispute that the first two of these requirements were met. It was also accepted that Mr Te Whata’s name was entered as occupier in the occupier’s column of the valuation roll. However, he disputed that his name had been properly entered. Part owners in Mäori freehold land with multiple owners may not be put on the roll unless they have some interest other than simply being an owner (s183(2)/1988). Accordingly, he argued that s185(5)/1988 regarding relief where there is partial occupation of the land only applied.
Held: the term “occupier” is defined under s2/1988 as:
“‘Occupier’, in relation to any land, means the owner thereof, except where a person other than the owner has a right to occupy the land by virtue of a tenancy granted for a term of not less than 12 months certain, in which case the term “occupier” means that other person; and includes any person having a right to occupy the land by virtue of a lease, licence, or other authority to which section 4 of this Act applies.”
Mr Te Whata would therefore be an occupier otherwise than by virtue of being an owner only if he was a tenant for a term of not less than 12 months certain or if he had the right to occupy the land by virtue of a lease, licence or other authority to which s4/1988 applied. Neither possibility had been suggested. Although Mr Te Whata was a part owner and by virtue of the definition in s2/1988 was an occupier, the effect of s183(2)/1988 was that his name should not have been entered in the occupier’s column of the valuation roll as being person liable for the rates. He should therefore have the opportunity to satisfy the Court that he was not in occupation of the whole of the land at the relevant time, and seek to have some reduction in liability for rates.
The court also dismissed the respondent’s argument that, even if Mr Te Whata had a substantial defence, it was correct to have rejected his application because he had failed to reasonably explain his delay in moving to set aside the judgment. Although the High Court found Mr Te Whata’s explanation for the delay to be “rather weak”, it refused to accept the respondent’s submission for three reasons. First, as a public body, the Western Bay of Plenty District Council “would never wish to collect rates to which it was not entitled or to deprive a ratepayer unfairly of a defence which may be available to him or her”. Secondly, the council’s position was protected in that, if Mr Te Whata ultimately failed under s185(5), he would have to pay not only the unpaid rates but also the penalties that had accrued. Thirdly, it was doubtful that the error in the valuation roll was Mr Te Whata’s fault. Justice required that he should have the opportunity to defend the claim for unpaid rates.
The appeal was allowed and the judgment in the District Court was set aside.
Kaikaiawaro Fishing Company Limited v Malborough District Council
W84/99. Environment Court. 18 August 1999 Kenderdine, R Bishop, J Rowan
This was an appeal under the RMA 1991 against decisions of the Malborough District Council to refuse applications for coastal permits for two marine farms to be established at Kaitangata and Waimatete Bays at Cape Jackson. The proposals were to establish two farms covering 8 and 8.77 hectares respectively of the waters of each bay. Mussels, scallops, oysters and cockles would be grown on 50 standard surface longlines at each farm. Buoys would hold the lines and marks the limits of the farms and flashing lights would be at the seaward corners to alert ships to the presence of the farm. Harvesting would take place once a year.
The Kaikaiawaro Fishing Company was owned by Te Runanga o Ngäti Kuia Charitable Trust Incorporated, and its purpose was to establish an economic base for Ngäti Kuia. The proposals were advanced because marine farming was economically sound, the sites had clean water ideal for marine farming, and the iwi had traditional links with the sites. The district council rejected the applications because:
• A large number of submitters to the proposed Malborough Sounds Resource Management Plan had sought to make marine farming a prohibited activity in the area and therefore a precautionary approach was required (marine farming was a discretionary activity when the applications were lodged, but was made a prohibited activity in the proposed plan).
• While iwi relationships to the area were a matter of national importance (s6(e)/1991), that had to be balanced against the preservation of the natural character of this relatively untouched area for all persons, which was also a matter of national importance (s6(a)/1991).
• Unique coastal geological features and remnant podocarp forest contributed to the exceptional natural character of the area.
• The area had potential development as a wilderness recreation area and should be left bare of man-made structures accordingly.
• The area had an existing use as a safe anchorage in southerly storm conditions.
• The lines and buoys of marine farms could come adrift in extreme north westerly conditions.
• Access for recreational and commercial fishers would be affected, and the farms could adversely affect the habitats of fish in the bays.
In their appeal, Ngäti Kuia argued that, among other matters that:
• The number of submissions seeking to make marine farming a prohibited activity should not be considered, since the applications for coastal permits had been lodged before the Management Plan was even notified.
• It was incorrect to assume that preservation of the natural landscape (s6(a)) was an issue of greater national importance than iwi links to the area (s6(e)).
• The role of Ngäti Kuia as kaitiaki (guardians) of the area required consideration (7(a)).
• Granting the applications would be in accordance with the principles of the Treaty of Waitangi (s8/1991) in that it would allow Ngäti Kuia to exercise their traditional authority or rangatiratanga over the area and redress their past alienation from their traditional resources.
• Granting the application would enable Ngäti Kuia to provide for their social, economic and cultural well-being. There were few sites left in the area where Ngäti Kuia could undertake marine farming, and the sites had been chosen for their significance to Ngäti Kuia.
• Planning instruments took very little account of iwi concerns, and those provisions which did should be interpreted both to protect iwi when they had concerns about proposal but also to allow iwi to undertake development to further the values recognised.
The Director-General of Conservation appeared in support of the council.
Held: the decision of the district council to refuse the permits should be upheld. The court examined the activities as discretionary under the proposed plan – ie as if public submissions had not been received.
The court concluded that the proposed farms would introduce foreign elements into a wild and outstanding landscape, creating adverse effects for viewers (mainly eco-tourists on tracks above the coast). They would significantly affect the wilderness experience of the whole Cape Jackson landscape.
The area was one of high natural character – despite some pastoral uses of the land in the past. Sixteen hectares of marine farm development would be a major adverse effect on the natural character of the area.
Since the farms would have an adverse effect on the natural character of the two bays, there would be adverse effects on the amenity values for the general public. However, it was clear that the Ngäti Kuia appreciation of the amenity of the area involved a cultural aspect which went well beyond such matters as pleasantness and aesthetic coherence included in the definition of amenity (s2/1991). The amenity of the area for Ngäti Kuia included:
• The spiritual approach which the iwi took to matters – they were known as “He iwi karakia” the “spiritual iwi”.
• The fact that Ngäti Kuia was the iwi with the longest continuous historical occupation of the area. This included extensive use of the fisheries of the area for generations and the presence of burial grounds (urupä) and other tapu places in the area.
• The importance of the area as the landing place of Kupe in the South Island.
• The fact that members of the iwi had and continued to use the bays concerned as traditional fisheries.
On this basis it was argued that the iwi saw the area not as a remote wilderness but as a place with many uses and associations for the tribe. In this context, the marine farms would be an appropriate modern expression of the values which the iwi held, and would be an interesting cultural experience for tourists coming to the area.
The court found that, in terms of amenity values, any adverse effects felt by those seeking to enjoy the wilderness aspects of the area were offset by the positive amenity effects for Ngäti Kuia.
The Court accepted evidence that extreme weather conditions which occurred not infrequently in the bays could result in the buoys anchoring the farms coming loose. The weather conditions also meant that there would be greater shell drop-off than normal from the farms. The ecological evidence and the use of the area as a traditional fishery suggested that the seas beneath the cliffs of the bays were rich fishing areas, and these would be affected by the shell drop-off, altering the natural character of the benthic environment. Moving the farms further out to sea would not ease this problem.
The proposals would have the positive effects of increased productivity from marine farming in the area and would consequently assist the regional economy. They would also reaffirm the role of Ngäti Kuia in the area and provide a basis for economic development for members of the iwi.
The proposed plan specifically specified the bays as areas of outstanding landscape with outstanding values, with an emphasis on policies that would preserve areas of uncompromised natural character. The proposed plan also stressed the need to prevent adverse effects on marine habitats. The proposed plan also reaffirmed the regional policy statement and the NZ Coastal Policy Statement in recognising Mäori as kaitiaki of the area. It provided specifically that areas of significance to Mäori should be protected, and prohibited marine farming from some parts of the coastal marine area as a way of allowing tangata whenua access to traditional coastal resources. It was argued by the council that these policies and objectives did not allow for iwi to develop resources where that was contrary to other parts of the plan. Rather, they reinforced the stewardship and protective role of Mäori.
The court did not receive any expert planning advice from Ngäti Kuia. While legal counsel argued that the planning documents were deficient in the way in which they provided for iwi values, Ngäti Kuia had not appealed the plans when they were notified. The court found that the references in the proposed plan to Mäori interests could not be interpreted as requiring the council to take a proactive approach to the development of marine resources by Ngäti Kuia. The references were concerned with protecting the tangata whenua from undesirable development applications lodged by persons other than tangata whenua themselves. The court did not agree that the use of traditional terms such as “mätaitai” (food resources from the sea s2/1991) in the plan meant that the plan was only concerned with traditional resources (this proposal, it was argued, was a non-traditional use of the resource). However, it was still clear that the plan provided a protective shield rather than a developmental “sword” in its references to Mäori resources. In other situations the court had heard from Mäori appearing in opposition to marine farms on sensitive sites on the grounds of their associations with their tribal lands and effects on access to traditional fishing grounds. In those cases the plan provisions had clearly acted as a shield to their interests.
There was one exception in the section of the plan dealing with kaitiakitanga, which referred to such matters as efficient use of resources. But that was not sufficient to override the many other references. The two marine farm proposals were therefore contrary to most of the relevant provisions of the proposed plan.
The court found that the proposals were similarly not supported in other planning instruments such as the regional policy statement and the NZ Coastal Policy Statement. The latter, like the district plan, referred to kaitiakitanga, but it was couched in protective terms and accordingly was probably not relevant to these proposals.
Part II matters
After examining various arguments under this heading, the court expressed its disappointment that witnesses for the council and the Director-General of Conservation had shied away from giving any specific evidence on the effects of the proposals on Ngäti Kuia, even though the Environment Court has constantly reiterated that consultation with iwi is important, and Mäori values fall to be considered in s5(2), 6(e), 7(a) and 8/1991.
Any consideration of such applications is “subject to” Part II considerations, and the council could not rely simply on the provisions of the plan, since they also are subject to Part II. In this case the point was important because the plan provisions seemed to focus on protective matters only, and the only policy which affirmed the access of the iwi to their traditional resources did not have a corresponding method to implement the policy.
Consequently, the iwi evidence on such matters was basically uncontradicted and the court found as a fact that granting the consents for marine farming would provide for the iwi relationship with their traditional waters (s6(e) and for kaitiakitanga (s7(a)) and be in accordance with the principles of the Treaty of Waitangi (s8). The proposals would also provide for the economic, cultural and social well being of Ngäti Kuia (s5(2)).
However, this had to be considered against the fact that retention of the two bays in unmodified form would sustain the potential of those coastal areas to meet the reasonably foreseeable needs of the future generations (s5(2)(a)) and be in accordance with two matters of national importance (6(a) preservation of the natural character of the coastline and 6(b) protection of outstanding natural feature and landscapes). Sixteen hectares of marine farms in the bays would not contribute to the sustainable management of the physical resources of the iwi’s rohe. In addition, the iwi had not shown that the marine ecosystem would be safeguarded if the proposal went ahead (s5(2)(b)). And the potential adverse effects on the natural character of the area, outstanding landscapes and ecosystems could not be avoided, remedied or mitigated (s5(2)(c)).
The fact that the appellant was an iwi fishing company and would be operating in traditional fishing grounds and providing resources for the iwi could be sustainable management in suitable circumstances – but such circumstances did not exist here. In 1998 Ngäti Kuia successfully opposed two marine farm permits in areas of historical and cultural importance to them. They were able to do this under the RMA 1991 and their cultural well being and the sustainable management of the resources concerned was thereby promoted and their mana was upheld.
“It is now under the same legislation that Ngäti Kuia come to promote the development of their fisheries through modern technological methods. We do not deny their rights to development. The legislation enables the iwi to do just that under s5(2). But what Ngäti Kuia are now saying under Part II, that if the provisions of s6(e), s7(a) and s8 are not sufficient to support their applications in the context of s5, then their relationship with their ancestral lands and waters is not being provided for, and Treaty principles are not properly accounted for. We do not agree with that conclusion.
For the restrictions of s5 of the Act circumscribe even the development of resources by iwi in their traditional territory in order to promote sustainable management. The approach imposed by the legislature in relation to the sustainability of resources is intended to benefit the long term interest of the iwi as well as the general public into the foreseeable future.”
[Ed: this is a very important case because it raises directly the tension between iwi development, which is supported by the Treaty of Waitangi and is a part of Mäori relationships with their ancestral lands and waters, and the general interest in the protection of natural resources from unsustainable development. In this case, the planning documents seemed to be almost exclusively concerned with shielding local iwi from the adverse effects of developments. Yet the RMA 1991 with its references to Mäori values seems to contemplate that the reinstatement of iwi as strong social and economic entities is a positive effect on the environment.
In its Manukau Harbour Report 1985 the Waitangi Tribunal emphasised that the spiritual approach of Mäori to the natural environment does not mean that Mäori values are inimical to development. Rather, it means that modifications to the environment are allowed only after appropriate incantations or precautionary steps have been taken (para 9.3.5).]
Police v Cooper
CRN 9055011094. District Court Papakura. 1 July 1999. Simpson J
The defendant was stopped at a compulsory breath test check point. When she failed to give a sufficient sample of breath, she was asked to provide a blood sample for analysis. She refused, and faced a charge of refusing to give a blood specimen. She pleaded guilty but submitted that there were special circumstances to justify not imposing the minimum six-month disqualification in that she considered that the giving of a blood sample was against her cultural beliefs because blood was part of the body and, for that reason, tapu.
Held: where there was a conflict between cultural values and legal principles, the court was required to give priority to legal principles (Police v Rapana AP 63/94 HC Hamilton 11 July 1994; also Mitchell v Department of Social Statistics CA 54 & 55/93 2 April 1993, in which it was held that the Treaty of Waitangi did not override the principles of modern law). There were no special circumstances to justify the non-imposition of the qualification.
Resource Management Amendment Bill 1999
This bill does not overtly deal with any matters of major significance to Mäori. Major changes regarding issues such as consultation with Mäori are part of a separate discussion process (see Mäori LRFebruary 1999 p8). However, the following matters are of interest:
• The bill introduces a new definition of “historic heritage” which means “natural and physical resources that possess architectural, cultural, historic, scientific, or technological importance” and includes “historic sites, structures, places and areas, historic gardens, archaeological sites, and sites of significance to Mäori. In addition, “the protection of historic heritage of special value to people and communities” will become a matter of national importance under s6 RMA 1991.
• The current provisions controlling subdivision of land (s11/1991) has been redrafted so that subdivision is permitted unless a rule requires a resource consent to be obtained. The opportunity has been taken to clarify the provision which provides that subdivision of Mäori land shall not be affected by the RMA 1991 unless the Te Ture Whenua Mäori Act 1993 specifically provides that the RMA 1991 applies. It is proposed that the RMA 1991 now provide that “This Act does not apply to the subdivision of land that is Mäori land … unless Te Ture Whenua Mäori Act 1993 provides that this Act applies.”
• The Secretary for the Environment may appoint hearings commissioners who will hear applications for resource consents or requirements for designations where that is requested by a local authority, a developer or a submitter on a development. This raises the possibility that Mäori commissioners might be appointed. There is however no requirement for the secretary to consider particular attributes of persons who might become commissioners, they must simply be “suitable” in the opinion of the secretary.
• The bill would clarify functions between regional and district councils, including a provision that the latter would be responsible for any controls on the subdivision of the beds of lakes and rivers.
• National Policy Statements, including the National Coastal Policy Statement, would in future be prepared by an advisory committee reporting to the Minister rather than the current process via a board of inquiry. Such policy statements could require regional and district councils to amend their plans to accord with a national policy statement, rather than simply avoiding being inconsistent with such a statement as at present.
• Regional policy statements, which currently are mandatory and must state resource management issues of significance to iwi authorities in a region, would become optional provided that regional plans cover the matters that a policy statement would otherwise cover.
• The bill proposes an amendment whereby territorial authorities “must, when preparing or changing a district plan, take into account any planning document recognised by an iwi authority affected by the district plan”. Currently, such authorities must simply “have regard to” iwi planning documents.
• All rules in existing plans which provide for “non-complying” activities would be altered, making them discretionary activities, and creating a new category of “restricted discretionary activity” – ie where the power to decline a resource consent is limited to matters specified in the plan.
• With certain limited exceptions, prospecting, exploring or mining for Crown owned minerals in the internal waters of the Coromandel Peninsula would become a prohibited activity.
• The bill would further extend the situations in which applications for resource consents would not be required to be publicly notified. However, when forming an opinion about public notification and whether any persons might be adversely affected by a development, consent authorities would still be required to “have regard” to any statutory acknowledgments under the Ngäi Tahu Claims Settlement Act 1998.
• Currently, when considering whether to issue a resource consent for any type of activity, consent authorities must consider Part II matters, including s6(e) Mäori relationship with sites etc, s7(a) kaitiakitanga, and s8 Treaty of Waitangi matters. The bill proposes that Part II would only be considered in applications for discretionary activities.
• In cases where an application for a resource consent involves matters of some urgency, or a matter of public importance or a complex or controversial issue, the Environment Court may hear the application directly, rather than on appeal from the local authority.
• The current rules which allow persons other than the parties to an appeal before the Environment Court to make submissions to the court would be amended. Included in these amendments is the requirement that, when the court is deciding whether to hear from a person who claims to have an interest in the proceedings greater than that of the general public, it shall have regard to any statutory acknowledgments under the Ngäi Tahu Claims Settlement Act 1998. However, the bill would also allow the court to award costs against such persons (currently it can only award costs against “parties” ie an applicant and any appellants).
• The provisions dealing with enforcement orders and abatement notices would be altered to provide that such an order or notice might still be issued even if a person is acting in accordance with a designation or consent if the court thinks that a considerable time has elapsed since the designation or consent was granted, and circumstances have changed in the meantime. This appears to cater for the situation in theMinhinnick case, where a council relied on a designation for a sewage pipeline made many years before the RMA 1991 (see Mäori LR November 1997).
• The Second Schedule to the Act, which currently contains references to the need to cater for minority groups in any plans and for the protection of “waahi tapu”, would be repealed
[Ed: despite comments from the Minister for the Environment that any substantive Mäori issues would be dealt with separately, this proposed legislation does have quite significant impacts on Mäori participation in the resource management process. For example, where a consent authority or the Environment Court was considering whether to grant resource consent for an activity which is controlled or restricted discretionary, it would no longer be able to consider Part II matters, but only consider Mäori concerns and issues to the extent that they had made their way into the relevant district or regional plan. In the recent Kaikaiawaro Fishing case (see above) the Environment Court noted that it was important to be able to consider Part II matters in situations where plans had plainly failed to take account of the full range of Mäori concerns.
In addition, the Bill would convert all activities which are currently listed as “non-complying” in plans into “discretionary” activities. This in effect “writes down” the environmental effects from activities which were the reason for putting them in the non-complying category in the first place. An activity currently deemed to be “non-complying” because of concerns about its effects on local Mäori would now become “discretionary”, with the necessary implication that the effects on local Mäori are not as serious as was perceived when the plan was prepared.]
Coroners: A Review
Preliminary Paper No 36 (NZLC PP36). August 1999. Law Commission
The Law Commission has issued a review about the Coroner’s office and the coronial system in New Zealand. The review emphasises the need to balance the important public function that the Coroner’s office fulfils in determining the cause of certain deaths and a system that recognises cultural values and employs culturally sensitive practices. In broad terms, it proposes measures to clarify the powers and role of the coroner, to ensure greater cultural sensitivity in the treatment of a deceased person and that person’s family, to improve the appointment process and the supervision of coroners, and to enhance the consideration and implementation of coronial recommendations. Amongst its specific proposals, the Commission has proposed amendments to the Coroners Act 1988 that would:
• Clarify that the coroner only has the right to the possession of a body until the conclusion of a post-mortem or until the coroner sooner releases the body under s13 of the Coroners Act 1988.
• Require, where retention of a body part is necessary, a pathologist to notify the coroner which body part has been removed, the reason for its retention and the length of time for which the pathologist proposes to retain it.
• Ensure that the family of a deceased person would receive an explanation at the outset that a post-mortem examination has been authorised and that they would be asked whether, and in how much detail, it wished to be kept informed of the process.
• Require that a body, including body parts, be returned to the family as soon as is reasonably practicable.
• Exclude from the terms “body parts” or “tissue” microscopic samples that pathologists retain as a matter of practice.
• Ensure that, with the consent of a pathologist, a deceased’s whänau would be given the option of viewing and touching the body before a post-mortem examination and of having a family representative or kaitiaki remain with, or in close proximity to, the body while it is under the coroner’s control and/or possession.
• Specify the experience or training that coroners must have (including legal training and an awareness of tikanga Mäori).
• Provide for the appointment of an assistant to the coroner who could advise the coroner in relation to tikanga Mäori.
• Provide for a Chief Coroner to be appointed whose duties would include issuing guidelines on how coroners should liaise with family members and ensuring that coroners have adequate training in relation to Mäori society and cultural values.
The Law Commission is welcoming comments on the paper. These should be forwarded to the Commission by 15 October 1999.