October 1999 Contents

Māori Appellate Court

Status of land - Māori Land Court able to question Crown's reasoning - Ngati Rarua Iwi Trust v Minister in Charge of  Treaty of Waitangi Negotiations and others - Section 38 Wairau West (1999) 4 Te Waipounamu Appellate MB 292

Māori Land Court

Status of land - investigation of customary title - Great Barrier Islands

Other courts and tribunals

Court of Appeal—fisheries assets allocation and “iwi”

High Court—closure of school—Treaty principles applying

Other

Boast, Erueti, McPhail, Smith—Mäori Land Law

 

Māori Land Court

John da Silva v Aotea Mäori Committee and Hauraki Māori Trust Board

25 Tai Tokerau MB 212. 23 February 1998. Spencer J

This case concerned applications under s132 Te Ture Whenua Mäori Act 1993 by Mr da Silva to determine the ownership of a 4 acre island in Mangaiti Bay on the west coast of Aotea (Great Barrier Island), and an application from the Aotea Mäori Tribal Committee (later represented by the Ngäti Wai Trust Board) for a determination of title in favour of the committee to all islands and rocks off the coast of Aotea for which no title had ever been issued. This latter application was opposed by the Hauraki Mäori Trust Board, acting on behalf of the traditional Marutuahu Tribal Confederation.

It was ascertained in preliminary proceedings that the traditional interests represented by the Aotea Tribal Committee/Ngäti Wai Trust Board were those of Ngäti Rehua, a hapü of Ngäti Wai. A further group had appeared and claimed an interest under the ancestor Hako, but was found to be a subset of the Marutuahu Confederation and was therefore covered by their proceedings.

Held: there had been previous investigations of title to the islands, but the most relevant, concerning title to Dragon Island, was concerned more with contested ownership as against the Crown and so did not comment on inter-iwi matters.

There were important issues for the land court to consider under the 1993 Act:

•  Section 132/1993 required the court to determine interests in Mäori customary land “according to tikanga Mäori” rather than according to “the ancient customs and usages of the Mäori people”—as required by previous legislation (s161 Mäori Affairs Act 1953). This was an important change, requiring the court to determine the matter from a Mäori perspective looking outwards, rather than from the “outside looking in”. The omission of the word “ancient” was also important.

•  The applicants had accepted that change in approach by presenting evidence of the historical relationships between their iwi. Previous court inquiries into titles had concentrated on individual rights—there was a question of how far the 1993 Act might have altered that requirement.

•  Section 132(1)/1993 required the court to determine “ownership”, but it was uncertain whether the concept of ownership was compatible with tikanga Mäori when it came to customary land. Also, it was “improbable” that the 1840 rule was an expression of tikanga Mäori, and uncertainty whether “ahi kä” was a Päkehä construct to fit Mäori interests into a timeframe which might make individualisation and alienation possible—rather than reflecting tikanga Mäori.

•  Section 129(2)(a)/1993 defined customary land as being ‘held’ in accordance with tikanga Mäori, which had a connotation of retention in accordance with tikanga rather than ‘ownership’ in a classic sense.

•  Section 3/1993 defined “tikanga Mäori” to mean “Mäori customary values and practices”. Was this limited to land physically, or extended to people not in physical occupation of the land?

•  The Preamble to the 1993 Act referred in English to land being held by “owners”. In the Mäori version it was held by “iwi”. There might be a conflict between the 2 versions—in which case the Mäori version must prevail (s2(3)/1993).

Assessment of the historical evidence

Ngäti Rehua based their claim to exclusive ownership and mana moana over “all of Aotea “ and the islands and rocks off Aotea under investigation on:

•  Take raupatu: conquest by two ancestors (Rehua & Te Rangituangahuru) in the late 17th century;

•  Take tupuna: descent from Rehua and Te Rangituangahuru, including marriage to women of the defeated Ngäi Tai people, and also ancestors of Ngäti Manaia and Te Kawerau;

•  Tikanga: knowledge and customary practices passed down from tupuna prior to conquest of the islands;

•  Wähi tapu: knowledge and guardianship of traditional resources on Aotea;

•  Mahinga: uninterrupted harvesting of traditional resources on Aotea;

•  Ahi kä roa: maintenance of exclusive occupation of Aotea.

Marutuahu claimed an interest principally through "take tupuna". They argued that they retained links with Ngäi Tai people who remained at the southern end of Aotea after the conquest and via a gift and links with Ngäti Rehua in the northern part.

The court found that, on the evidence placed before it:

•  The islands were originally inhabited by Ngäti Te Hauwhenua hapü of Ngäi Tai. They shared it with Ngäti Manaia who were there as guests or manuhiri.

•  When Ngäti Te Hauwhenua transgressed against a chief of Ngäti Manaia (his daughter was killed), that chief called on Ngäti Rehua to assist him.

•  Through battles and subsequent marriages Ngäti Rehua conquered and settled the northern area of the island.

•  While Ngäti Rehua claimed that they subsequently fought and drove out Ngäi Tai people from the southern area of the island also, there was little evidence to support that assertion. The evidence instead indicated that Ngäi Tai remained in the southern area and strengthened their relationships with Marutuahu.

•  For one hundred years after the conquest, Ngäti Rehua also strengthened their relationships with Marutuahu, despite the odd dispute between them (eg over fishing grounds). The issue was therefore whether the continuing Marutuahu customary interests in Aotea was due to their links with the earlier occupiers, Ngäi Tai, or the later occupiers, Ngäti Rehua.

•  Contact with Päkehä was followed by the musket wars which were a threat to both Ngäti Rehua and Marutuahu.

•  In 1838, Ngäti Kahungunu (who had been freshly supplied with muskets), attacked Ngäti Rehua on the island. Marutuahu responded generously to a call for assistance, with 100 Marutuahu warriors dying for 10 of Ngäti Rehua. This battle (known as Te Mauparaoa) demonstrated that the links between Ngäti Rehua and Marutuahu were very strong and Marutuahu were much more than guests or manuhiri on the island.

•  There was considerable dispute about the interpretation of an incident in 1827 when a Marutuahu chief (Te Maunu) was killed by visitors from the Bay of Islands when he took them on a fishing expedition to Aotea. The Ngäti Rehua proposition, that the incident demonstrated that Marutuahu were merely frequent visitors to Aotea, raised more questions than it answered. Rather, when closely examined, the incident showed that Marutuahu had permanent occupation of part of the island. In addition, the frequent visits of Marutuahu were part of the customary practice of moving on a seasonal basis from käinga to käinga throughout the tribal area.

•  Following the battle of Te Mauparaoa, most of Ngäti Rehua and Marutuahu left Aotea for fear of reprisals. Marutuahu demanded that Ngäti Rehua sell land to the Päkehä as ‘payment’ for the Marutuahu losses in the battle. A deed was signed purporting to sell 20,000 acres or all of Aotea.

•  The Land Claims Commission later approved the deed as sufficient evidence of a sale of the northern part of Aotea—ie the part clearly belonging to Ngäti Rehua.

•  It was clear that the deed was based on ignorance (Aotea is 71,800 acres), and the Mäori signatories were selling only the Ngäti Rehua interest. There was no evidence that Marutuahu were selling any of their interests at that time. The middle portion of the island was sold in 1844 (this sale being confirmed in 1856), and the southern portion in 1854.

•  These land transactions between 1838 and 1856 did not provide a basis for the determination of mana whenua over the island according to tikanga Mäori, although the background to the 1838 transaction cast light on the relationship between Marutuahu and Ngäti Rehua. The boundaries of the northern, middle and southern purchases did not coincide with traditional geographical boundaries between Ngäti Rehua and Marutuahu, but were created to satisfy the requirements of Päkehä purchasers and surveyors.

•  Marutuahu left Aotea permanently after the transactions of 1854 and 1856. However, it was accepted by all parties that some Ngäti Rehua remained there on a reservation, and consequently Ngäti Rehua had continuous occupation and held the traditional knowledge of the island.

•  In subsequent Mäori Land Court investigations about parts of Aotea, Ngäti Rehua had disputed the mana of Marutuahu over Aotea. While the evidence given in those court inquiries was of assistance in this case, the interpretation of tikanga by them might be unreliable since the courts were not looking principally at iwi relationships according to tikanga Mäori but rather to claims of physical occupation/ownership of land “upon terms that coincided with the valid acquisition of title by Päkehä purchasers according to the Native Land legislation of those times.”

On the question of the tikanga issues raised by the Te Mauparaoa conflict, the court found that the battle raised significant tikanga issues because it resulted in such large losses of Marutuahu on Aotea. The close traditional ties between the two groups and sensitivity about past conquests meant that a number of issues, particularly relating to the early conquest of the island by Ngäti Rehua, were deliberately not raised in this court hearing. That silence was in itself tikanga. There was for example considerable sensitivity around claims that some Marutuahu slain in 1838 were left on the island, a fact vigorously denied because of the implication that those ancestors had been abandoned there. The court noted that such sensitive evidence should be handled carefully as it might be misunderstood when subject to public scrutiny and cross examination in the court room, and the resulting insensitivity was hurtful. Cross examination of kaumatua and kuia giving sensitive evidence could in itself be hurtful (something not appreciated by some parties in the hearing).

The court found that Ngäti Rehua did not completely drive Ngäi Tai from Aotea, who remained in occupation in the south. Ngäti Rehua had a shared whakapapa with Ngäti Tai and Marutuahu and consequently shared some wähi tapu also. They now held exclusively the “tikanga, mahinga and ahi kä” of Aotea. Marutuahu had a claim under take tupuna in the southern area, they had wähi tapu on the island and had interests via the arrangement or tuku in 1838 that they should share in the proceeds of the Ngäti Rehua sale of land and any settlements and cultivations retained.

Applying Te Ture Whenua Māori Act 1993

The Preamble to the Act provided guidance in applying ss132/1993 and it expressed the concept of ‘ownership’ as “… kia mau tonu taua whenua ki te iwi nona, ki o ratou whänau, hapü hoki, ..” Later in the Preamble the word “hunga” was used to mean iwi, which clarified that the Preamble was referring to iwi in the traditional tribal sense as the owners, not individuals. Interestingly, although expressed as being in recognition of the Treaty of Waitangi, the Preamble used the word “iwi” which was not in the Treaty, rather than “tangata” which was. Nevertheless, in its context in the Preamble, and by contemporary usage, “iwi” expresses the traditional tribal identity. The Preamble recognised the traditional relationship of Mäori with their land in its tribal significance rather than ownership in an individualised sense.

This was consistent with other provisions of the Act, s129(2)(a)/1993 which referred to customary land as land “held” in accordance with tikanga Mäori, rather than “owned”. Section 132(2)/1993 required the court to determine the title to customary land according to tikanga Mäori. Consequently, the word ‘owners” in s132(1)/1993 had to be interpreted accordingly.

In determining ownership, s132/1993 required the land court to determine interests in Mäori customary land “according to tikanga Mäori” rather than according to “the ancient customs and usages of the Mäori people”—as previous legislation required (s161 Mäori Affairs Act 1953). The 1840 rule had been adopted by the Court to meet the previous standard. While that date may have been useful to determine ancient customs and usages before they were changed by interaction with Päkehä, there was no evidence that Mäori themselves had adopted 1840 as “the golden year of their tikanga”. Under the 1993 Act, tikanga was now contemporary rather than ancient. The removal of the word “ancient” was consistent with the evolution of the Mäori language to meet modern circumstances and an acknowledgment of changes in the social environment, for eg through the broadcasting cases in the Court of Appeal and the Waitangi Tribunal.

With Mäori freehold land, the ownership of individual interests might now be tikanga in as much as it has become accepted practice among Mäori to own relative interests in land where title has been determined by the land court. However, customary land is “held” rather than ‘owned” under the 1993 Act, and the same tikanga cannot be said to apply. For example, Mäori would not accept that the Ngäti Rehua claim to mana moana over the islands and rocks around Aotea would create an exclusive ownership in “Mäori freehold fish.”

In coming to a decision on who held the land, the court had not tried to interpret the implications or meaning of the many marriages and alliances between the groups, but rather, had concentrated on critical events acknowledged by both parties to be important. The evidence showed that whakapapa knew no boundaries, both groups could demonstrate links to the area and each other. Nevertheless, Ngäti Rehua claimed that, according to tikanga Mäori, Aotea and the small islands and rocks (motu nohinohi and köhatu) were theirs. The place of Christianity in contemporary Mäori tikanga could also not be ignored.

“The central issue is the identity of the people with the place (its traditions etc). The relationship with the place is based upon whakapapa (and between each other, whänaungatanga), ahi kä, tikanga (knowledge and practice to traditions) and in all things, aroha. The evidence is conclusive that both Ngäti Rehua (and others of Ngäti Wai) and hapü of Marutuahu, share common bonds of whakapapa in relation to Aotea. It is also conclusively established that the ahi kä and tikanga (together being the kaitiakitanga) is with Ngäti Rehua only. They have the knowledge of customary practices on Aotea and are the human kaitiaki of the taonga.”

Relating this to the requirement to determine the relative interests of the owners is not, in terms of tikanga, a matter of picking winners and losers. Degrees of relationships between people in Mäori society are infinitely variable. Therefore, “relative interests” in land arising from the tikanga of whakapapa are literally the “interests of relatives” and these cannot be expressed as a particular share for each. Among each other the relationships or “relative interests” are understood and expressed in whänaungatanga. The court could formally determine the relative interests, but the practice of tikanga and expression of whänaungatanga from that point on was a matter for the rangatiratanga of the parties.

Accordingly, the court determined that under s131/1993 the status of the islands and rock outcrops around Aotea is Mäori customary land, and under s132/1993 the owners were Ngäti Rehua “to hold the same as kaitiaki for themselves and, in accordance with the tikanga of whänaungatanga, for Ngäti Wai ki Aotea and Marutuahu ki Aotea.

The court also noted that there was a 1982 decision concerning Dragon Island which determined that it belonged equally to the Ngäti Wai and Ngäti Maru tribes. Trustee representatives were appointed for the respective tribal groups. They might now wish to vary that order by agreement to allow that island to be administered along with the islands subject to this decision.

Commentary: applications to determine the ownership of Mäori customary land, which were most of the business of the Mäori Land Court in the early years of its operation last century, are now quite rare. This judgment suggests that the approach to both determining which groups originally held interests in customary land and determining who from those groups are owners is quite different from the approach last century, as a result of the changes in the 1993 legislation. The emphasis under previous legislation, to actively transform customary interests into European style interests is gone and replaced with a more subtle transformation, paying much greater attention to the differences between dynamic Mäori custom and the certainties of European title. This judgment suggests that the nature of Mäori custom means that the owners of customary land will usually  be some body representative of group interests and only rarely particular named individuals.

The case also raises interesting questions about the treatment of evidence of Mäori custom. The land court is suggesting that silence about certain matters may be acceptable, and in fact evidence itself of custom in certain respects. There is a strong suggestion that custom has to be seen in a contemporary light.

Readers will note that this case was decided some months ago (February 1998). The delay in its appearance in this publication reflects in part the problems of the informal system which currently exists for collecting and recording important land court judgments. Important judgments at the district level are sometimes missed.

WAITANGI TRIBUNAL

No items this month

OTHER COURTS & TRIBUNALS

Manukau Urban Māori Authority & Others v Treaty of Waitangi Fisheries Commission & Others: Te Waka Hi Ika O Te Arawa & Others v Treaty of Waitangi Fisheries Commission & Others

CA208/98, CA 209/98. 18 October 1999. Gault, Thomas, Keith, Blanchard, Tipping JJ

Background

The background to this case, and its lengthy course through the courts, has been amply set out in the several judgments preceding it (see Mäori LR August 1998 p3). In July 1992, after the interim fisheries settlement, at a hui-a-tau (annual meeting) a resolution was passed that the assets included in the fisheries settlement should be allocated to “iwi”. In August and September 1992 the Sealord fisheries settlement was concluded, and the subsequent legislation declared that the settlement was for the benefit of Mäori. Various provisions of the deed of settlement and the legislation enacting it, referred to “iwi” and to “Mäori.” The legislation required the Treaty of Waitangi Fisheries Commission to propose a scheme for allocation of the assets in the basis of the resolution of the hui-a-tau. Various groups, including some bodies who claimed to represent traditional tribes, and bodies representing Mäori people in an urban and non-tribal setting—known as urban Mäori authorities (UMA)—now claimed that allocation must include them directly, and not indirectly, by way of benefits first handed to traditional tribes.

The key issues were:

•  Must pre-1992 settlement assets (PRESA) be allocated “solely” to iwi?

•  If yes, did iwi mean “traditional Mäori tribes”?

The court had to consider five main events:

•  The Mäori Fisheries Act 1989: which put in place an interim fishing settlement by providing 10% of quota and $10 million to go to a commission. The commission had the principal functions of facilitating the entry of Mäori into fishing and providing grants to groups of Mäori to enter into fishing.

•  The hui-a-tau (July 1992): where all participants resolved that legislation should be sought to allow for allocation of these PRESA assets and that allocation should be to “iwi”.

•  The Memorandum of Understanding (August 1992): in which the Mäori negotiators and the Crown recorded an understanding that they would seek to enter into an agreement whereby the Crown would provide cash for the commission to purchase Sealords Ltd, including its quota holdings.

•  The Deed of Settlement (September 1992): which recorded the agreement to purchase Sealords and agreements that all Mäori commercial fishing claims would be extinguished by subsequent legislation, and that the commission would seek to allocate the PRESA assets in terms of the resolutions of the hui-a-tau, and that the settlement was for the benefit of all Mäori. It also recorded that the commission would propose a new fisheries act for the distribution of post-settlement assets (POSA), which would be for the benefit of all Mäori and address how interests could be accommodated within iwi structures, and any tribe could ask for the proposed legislation to be referred to the Waitangi Tribunal.

•  The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992: which extinguished all Mäori commercial fishing claims and gave the commission an additional function to “consider how best to give effect” to the resolutions of the hui-a-tau (s15/1992 amending s6(e)/1989). The Act was to be interpreted so as to give effect to the Deed of Settlement.

Keith, Blanchard, Tipping JJ (majority decision)

The commissioners had legal advice prior to the July 1992 hui-a-tau that they did not have legal power to allocate and this was why the resolution of the hui-a-tau was to seek authority to allocate to iwi. It was a "matter of controversy” whether at the July 1992 hui-a-tau anyone other than commissioners were aware that the Sealords company was up for purchase and that Mäori negotiators were close to achieving a deal with the Crown over the sale. The majority examined the resolutions of the hui-a-tau, the Memorandum of Understanding concerning the Sealords settlement, the Deed of Settlement (including its numerous references to iwi and to all Mäori) and the 1992 Settlement Act.

When the Court of Appeal first considered these issues in Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Assoc Inc [1996] 3 NZLR 10 it found that there was an obligation on the commission to consult UMAs as representatives for many Mäori—with the implication that allocation would be to these groups in addition to iwi. The Privy Council overturned that judgment and required a rehearing of the questions. At that stage they were redrafted to their present form with the agreement of all parties.

The High Court decision on the reformulated questions, that allocation had to be solely to traditional iwi, (see Mäori LR August 1998 p3) found that there was nothing to prevent iwi developing a system to ensure that those entitled to benefits could be reached, no matter what their present state and tribal links. If the scheme did not benefit all Mäori, it was a matter for the Minister to deal with when the scheme was referred to him for comment under s9(4)/1989 as amended in1992). The High Court also found that iwi clearly meant traditional tribes based on kinship links and UMA were not such.

The majority concluded:

•  There was no doubt that the resolutions at the hui-a-tau were directed to iwi in the sense of traditional tribes, since only traditional tribes were present and voted on the resolutions.

•  The MOU was not directly relevant since it focussed on the Sealords deal and the settlement which produced POSA.

•  The use of the word “Mäori” in the Deed of Settlement was a matter of drafting consistency, and to convey that the settlement was of claims at all levels of Mäori society.

•  The Deed of Settlement contemplated that any “tribe” with a beneficial interest could refer proposed legislation to the Waitangi Tribunal.

•  Annexure A to the deed, which dealt with the specific issues which a scheme of allocation of POSA must address, constantly referred to iwi and it was clear that only a distribution to iwi was contemplated, but on the basis that iwi must achieve a fair allocation among all Mäori.

•  If it had been contemplated that POSA assets were to be dealt with on a different basis than PRESA then the deed would have spelt that out explicitly.

•  It would have been unusual for the deed and Parliament to refer to giving effect to the decisions of the hui-a-tau if in fact a major departure from them was contemplated.

•  Signatories to the deed signed on behalf of tribal interests, and UMA was not at the time a group involved in the court actions over fishing interests.

•  While the deed also provided that a proportion of any new species brought into the quota management system must be allocated to Mäori, when such a transfer actually occurred under the Fisheries Amendment Act (No 2) 1992, the legislation explicitly transferred scallop quota to named tribes.

•  The 1992 Settlement Act provided that it was to be interpreted in a manner giving effect to agreements in the Deed of Settlement (s3).

•  The ten sets of court proceedings discontinued under the legislation were all tribally based.

•  It was clear both from the wording of s6(e)(i)/1989 and Hansard that no major departure from the resolutions of the hui-a-tau was contemplated and the commission was given discretion only about how to allocate to iwi, not whether to allocate to iwi.

•  There was no significance in the positioning of s6(e)/1989 as a particular or additional function of the commission rather than its principal function—set out in s5. Allocation was a mechanism for ensuring the objects and purpose of the Act, and therefore did not need to be spelt out as an object or purpose.

•  The Mäori Fisheries Act 1989 referred only to iwi and hapü.

•  While it was possible that, when the 1989 legislation referred to the commission providing assistance to any group of Mäori that arguably went wider than iwi and hapü, such an intent was not evident fromHansard, and the subsequent hui-a-tau and following legislation confirmed that allocation to iwi was intended.

•  Parliament obviously intended that the requirements of allocation to iwi and ultimate benefit for all Mäori were to be harmonised. Allocation must be to iwi but on condition that iwi have put in place structures, both tribal and pan-tribal which will ultimately deliver benefits to all Mäori. When s6(e)/1989 was read as a whole it was clear that there was neither room nor any need to go beyond iwi. Mäori not affiliated to any particular tribe were safeguarded by the requirement that the Minister of Fishieries look over any proposed scheme, and by the trustee role of the commission.

•  The actual power of allocation was added later. It contemplated that a consensus might not be reached by iwi about the scheme of allocation. It also contemplated that while the minister might ask the commission to reconsider any suggested scheme of allocation, the minister could not prevent a distribution of PRESA in accordance with a reconsidered but not necessarily altered scheme. Nor could he enlarge on the power of allocation given to the commission.

In summary, it was correct that the intent of Parliament rather than the intent of the hui-a-tau was at issue, but the hui-a-tau was clearly concerned with allocation to iwi only, and the MOU and Deed of Settlement did not intend any departure. Had Parliament intended anything different it would clearly have spelt this out with great particularity. Not to do so would have been a deception, since such a change in intention would have been a matter of controversy within Mäoridom. There was no evidence of such a change in approach. A few changes in the language used between the various documents were explained by other matters and did not add up to a clear intention to allocate in a manner quite different from that suggested by the hui-a-tau.

Nor was there any suggestion that the legislation was framed specifically to avoid the risk that Mäori not affiliated to a tribe might miss out on any allocation. Parliament was simply concerned to give the commission an explicit power of allocation where it lacked one.

In addition, there was no reason to think that allocation through iwi could not cater for non-affiliated Mäori by creation of a pütea or similar mechanism. In any event, no scheme of allocation could completely remove any risk that some Mäori might not receive the benefits of the settlement.

Arguments that Mäori should be free to choose whichever organisation they wanted to to access the settlement should also be rejected. The settlement was of rights possessed by groups of Mäori. Individuals possessed interests ultimately via groups and could not exercise them on a wholly individual basis—something which was confirmed by the Waitangi Tribunal in both its Muriwhenua Fishing Report 1988(p181) and Fisheries Settlement Report 1992 (pp12-13 & 17-18). Had the settlement proposed a radical departure from the group and whakapapa based approach, clear language would have been required. Because the commission would impose on iwi a requirement that urban Mäori should not be deprived of their fishing rights without receiving some corresponding benefit, there was no discrimination in requiring urban Mäori to access benefits from an iwi based scheme.

It was clear that “iwi” meant traditional tribes. At the hui-a-tau the word iwi was used interchangeably with “tribes”. The word is used in this sense in many statutes eg Children, Young Persons and Their Families Act 1989 s327, Criminal Justice Act 1985 s2, Crown Minerals Act ss15-16, Fisheries Act 1996 ss2 & 174-185, Historic Places Act 1993 s25, Orakei Act 1991 s2, Resource Management Act 1991 ss2 & 154 (in contrast to “te iwi Mäori” at s345), Transit NZ Act 1989 s42L.

Given this common understanding of the meaning of “iwi”, it was understandable and also notable that UMA did not claim status as an iwi until late in the proceedings.

This decision did not detract from the point made in the High Court that iwi refers to collectives of Mäori with shared whakapapa, and does not mean leaders or representatives, but rather the people of the tribe. Nor did this judgment make any comment on whakapapa based groups which the commission presently refused to recognise as iwi. If it was found that they were sub-iwi groups in the sense that iwi was used in the legislation, then participation must be through iwi.

It was a pity that such effort had been expended on this preliminary question. It was likely to make little difference from the perspective of individual Mäori whether allocation went to UMA type bodies or via a pan-iwi organisation under the control of iwi. The commission appeared to recognise that it required the assistance of UMA and perhaps other bodies to allocate to non-affiliated Mäori. The focus should be on a reasonable scheme of allocation, rather than fighting for a position in the administration of assets.

It was fundamental that the implementation of the settlement accorded with traditional Mäori values, even if utilising modern day mechanisms. The settlement was of historical grievances and ought to be implemented in a manner consistent with that fact. UMA, being based on kaupapa rather than whakapapa, could not fulfil that role. Despite their valuable work in the community, they could not claim to be tribes or successors of tribes. If they were found to be entitled to receive an allocation, that would be a result never contemplated at the hui-a-tau, and Parliament would be perceived as having “played false”, a notion which must be rejected.

Gault J

In a brief judgment, Gault J concluded that:

•  The essential question for the court was whether the commission was prevented in law from allocating to Mäori individuals, collective or institutions other than traditional tribes, even if it wanted to. The short answer was no. Accordingly, the second question did not require an answer.

•  It could not be assumed that Parliament foresaw and then dismissed the possibility that distribution through tribes might not ensure that all Mäori would benefit from the settlement.

•  The hui-a-tau did not resolve that distribution should be only to iwi, although realistically it did not contemplate anything other than distribution to iwi. Also, UMA were clearly not classic iwi, since they were based around a common cause (kaupapa based), rather than around a common ancestor (whakapapa based).

•  If a conflict was likely to arise between the purpose of a trust (all Mäori to benefit from the settlement) and the mechanism to achieve it, then the purpose should prevail.

•  If all PRESA were to be allocated to iwi only, the commission could not in the interim allocate any quota to Mäori to assist them into fishing—unless they were part of iwi—that could not be right.

•  To argue that allocation could only be through traditional tribes given the nature of Treaty rights (ie whether they were based in individuals, hapü, iwi or multi-tribal groups), confused substantive rights with the matter at issue here—namely, a mechanism for distribution of assets. It also asked the court to rule on the nature of Mäori rights in commercial fisheries—something which the 1992 legislation forbade it to do.

Thomas J

In a lengthier judgment, Thomas J agreed with Gault J that the essential question for the court was whether the commission was prevented in law from allocating to Mäori individuals, collective or institutions other than traditional tribes—even if it wanted to. Thomas J concluded that the answer was no—but as a matter of procedure the preliminary question should never have been put anyway. In his view:

•  The commission had at an early stage put forward the argument that assets should be allocated solely to iwi for iwi members. It had now accepted that all Mäori must benefit—even if via iwi.

•  The hui-a-tau definitely considered only traditional tribes when it mentioned iwi. It also contemplated at that time that only members of iwi were to be the beneficiaries.

•  The Deed of Settlement and the 1992 Act “added a new dimension” in that they intended a pan-Mäori settlement for the benefit of all Mäori, and they added an “overriding requirement” that allocation must be for the benefit of all Mäori.

•  The resolution of the hui-a-tau was a “slender thread” on which to argue that allocation must be only to traditional tribes.

•  The commission has the discretion to decide to allocate only to iwi—provided that that was for the benefit of all Mäori.

•  ”Iwi” meant people of the iwi in any event.

Justice Thomas expanded on these conclusions, commenting that Mäori have suffered badly from very rapid urbanisation between the 1950s and 1970s. The perceived danger was that many Mäori may not benefit from the fisheries settlement, since, although the settlement was for Treaty breaches, the primary focus of the commission had not been on those who suffered most because of those breaches.

The commission took an early position that allocation must be only to iwi and to people who identified with iwi, but that position had changed in the course of the proceedings. Nevertheless, some remnants of that approach still came through in submissions of the commission, particularly when it argued that fishing rights are derived from descent groups (iwi), and that the settlement should therefore go to such groups.

This should be rejected because 1) fishing rights were held mostly by whänau and hapü, not iwi, and 2) the settlement did not contemplate that benefits should be conferred only on those who had lost rights—but rather to all Mäori.

The Treaty of Waitangi is the country’s “fundamental constitutional document” and was an essential background to this case. The Treaty confirmed and guaranteed both collective and individual rights. The settlement extinguished both the collective and individual rights and was a pan-Mäori settlement for the benefit of all Mäori, so that, to the extent the commission might fail to benefit all Mäori there would be a mismatch between intention and fulfilment.

Iwi and members of iwi were the intended beneficiaries of the settlement at first, but the Crown and then Parliament added the “new dimension” that the settlement was to be for the benefit of all Mäori—which was why the commission was reconstituted by the 1992 Act with a membership drawn from a larger group that just the fisheries negotiators. The requirement from the 1992 Act (s6(e)(i)/1989) for the commission to “give effect” to the resolutions of the hui-a-tau was a “slender thread” on which to hang an “iwi only” argument because there had been a:

“redirection in thinking which subsequently occurred with the Memorandum of Understanding, the Deed of Settlement and the Settlement Act itself.  What had been perceived as an allocation to iwi (the traditional tribes) for the benefit of members of those iwi was converted into a pan-Mäori settlement of all Mäori rights to fishing under the Treaty.  While, … it must be accepted that at the time the resolution was passed it was the “intention” of those at the hui-a-tau to allocate the assets to iwi and that the word iwi was used in the sense of traditional tribes, the Mäori negotiators had not contemplated being bound to a settlement for the benefit of all Mäori.  But the Commission now had to “consider” how to best give effect to the “resolutions” having regard to the redirection in the objective of the settlement which had occurred.  In effect, a sea-change had taken place: consideration as to how best to give effect to the resolutions now had to have regard to the fact that the settlement had become a pan-Mäori settlement terminating all Mäori fishing rights.”

While the commission had a discretion whether to allocate only to iwi, one could mount a “formidable argument” that there was no intention to restrict the discretion of the commission if that would prevent it producing a settlement to benefit all Mäori. This could be tested by considering that if the commission itself had chosen to extend the allocation of assets to groups other than iwi, it could not have been seriously contended that it had gone beyond the Act.

Even if Parliament was aware when passing the 1992 Act that the commission favoured distribution to iwi, it did not follow that Parliament would have restricted the commission to that result if the commission felt some other process was necessary. Parliament was well aware of the failings of iwi infrastructure when it passed the legislation.

In any event, the proceedings were essentially pointless since, it being accepted by all parties that all Mäori must benefit from any scheme, it was more important to consider if a particular proposal of the commission would achieve that—and that was a substantive, not a preliminary issue. Some had suggested that using iwi as a distribution mechanism gave iwi benefits not available to other Mäori—but it was not for the courts to speculate on the commission’s agenda.

Justice Thomas expressed concern about the outcome of the appeals. No distribution scheme could mean that every individual Mäori benefited from the settlement—the phrase “for the benefit of all Mäori” had to be read sensibly. However, because the majority would dismiss the appeals, there was a possibility that a distribution via iwi might fail to benefit all Mäori, and yet there would be no remedy for that, and those affected would perceive that a further Treaty breach had occurred.

Commentary: Confusion reigns. The majority has decided that allocation must be solely to traditional iwi, yet two strong minority judgments reach the opposite result. Appeals to the Privy Council are already being contemplated and the suggestions from the minority judgments that efforts should focus on the fairness of the final allocation scheme look likely to be ignored.

The majority found plenty of detailed references to iwi and the necessary inferences in the various documents and statutory provisions to reach their conclusion. In contrast, Thomas and Gault JJ did not enter into detailed statutory interpretation—preferring a broad “contextual” approach. Their basic point was a broad one in any event—how could a settlement clearly for the benefit of all Mäori be restricted in a fashion which could conceivably prevent its ultimate result being achieved?

The underlying problem is that this was a hastily drafted settlement and associated legislation. In terms of the arguments about what the negotiators and Parliament did or did not intend, a tenable argument is that those driving the settlement were not clear or were of different minds among themselves about the end result and simply tried to secure minor changes to the wording or saw in the wording the result they wanted.

The Court of Appeal has told the appellants off for concentrating on this preliminary point, but that ignores the fact that these proceedings, for both sides, are at the centre of a larger argument about the overall shape of Mäori development in the next decades. There are several competing models.

If the majority judgment stands, disaffected groups will be seeking to show that “all Mäori” cannot even come close to benefiting from the scheme currently proposed. Concentration will no doubt fall on the qualification in Thomas’s judgment that “no scheme will mean that every individual Mäori will benefit from the settlement” and the development pütea proposed by the commission. The pütea, a contestable trust fund owned by all iwi, is a neat legal solution to the dilemma posed by these judgments. It would ensure that funding went to groups (which might include UMA) who claimed to be bringing the benefits of the settlement to those not reached through iwi organisations. The majority commented that, even assuming that allocation must be solely to iwi, UMA could still be involved—for example in assisting with identification of possible beneficiaries. The development pütea proposal allows for just this possibility.

No doubt the minority of the Court of Appeal would take a hard look at the adequacy of the $10m proposed for the development pütea, and its contestable scheme, when compared to the large numbers of urban Mäori.

The appellants in this case included groups such as Te Runanga o Muriwhenua or similar pan tribal organisations who had had trouble convincing the commission that they are iwi for the purposes of allocation. The court noted that this judgment made no finding on that issue. However, their presence indicates that even the finding that “iwi” means “traditional iwi” is one fraught with difficulties. What does this mean for a pan-iwi organisation created in the 1980s for example?

Finally, there is some irony in the fact that this litigation should now centre around something called “traditional iwi” and hope to base an entire scheme of allocation of interests on that basis, at a time that scholarship sharply questions that limits and boundaries of that very notion—see the review of Mäori Land Law below.

Osborne and Mokai Board of Trustees v Attorney General for Minister of Education

M198/99. 4 October 1999. High Court Hamilton. Hammond J

In 1901, paramount chief, Hitire Paerata, and certain other hapü chiefs offered the government land for the purpose of building a school for Mäori in the area of Mokai village at Atiamuri, about halfway between Taupo and Tokoroa. At the time of this case, the school, which had facilities to accommodate 40 pupils, taught bilingually within the mainstream system, with a proportion of its curriculum in Mäori. Many in the Mokai community preferred the school to offer a total-immersion teaching programme.

Section 154 of the Education Act 1989 set out the procedure whereby the Minister of Education could close a state school. The relevant parts of that section provided:

“154. Closure of schools—(1) Subject to section 157 of this Act, and to section 17 of the Private Schools Conditional Integration Act 1975, where, after consulting the Board of a state school, the Minister is satisfied that it should be closed, the Minister may, by written notice to the Board, ask the Board if it has any arguments in favour of the school’s staying open.

(2) The Minister may, after considering all arguments (if any) received from the Board within 28 days after it got notice under subsection (1) of this section, by notice in the Gazette specifying a day on which the school will close, close the school; and the school shall cease to be established on the day specified.”

Section 157(3)(f) provided that the minister shall not close a school under s154 “without first consulting the boards of all state schools whose rolls might, in the opinion of the Minister, be affected if the Minister takes that action”.

In July 1998, the Ministry of Education recommended to the minister that Mokai School be closed because:

•  The area had a low permanent population.

•  The school had found difficulty in attracting and retaining a permanent teaching principal.

•  The reports of the Education Review Office showed a history of governance and compliance problems that meant the school was unable to provide a quality education.

The then Minister of Education accepted this advice and in July 1998 wrote to the Mokai School Board of Trustees, inviting them under s154 Education Act 1989 to make submissions within 28 days as to why the school should not be closed. The board of trustees made a submission and, as a result, the minister sought further information about a number of matters. Ministry staff also attended a hui at Mokai School to receive the further information from the board of trustees. Ultimately, however, the ministry concluded that “too many factors are working against the ability to improve the educational achievement of Mäori and reduce disparities in educational achievement to warrant it staying open” and it confirmed its recommendation to the Minister of Education that the school be closed. On 24 June 1999, the (new) Minister of Education wrote to the chairperson of the board of trustees to advise that, despite the further consideration he had given the matter, he had decided that the school should close on 4 October 1999. A notice to that effect was published in the Gazette on 1 July 1999.

The plaintiffs, Mr Osborne (who was a member of the school’s board of trustees), and the Mokai School Board of Trustees, applied under the Judicature Amendment Act 1972 for interim relief to prevent the school’s closure. The plaintiffs claim contained three causes of action: (1) an alleged failure to take into account relevant considerations, or the taking into account of irrelevant considerations, (2) pre-determination/bias and (3) a breach of the New Zealand Bill of Rights Act 1990 in “denying Mr Osborne and his children the right to enjoy their culture and use of the Mäori language”.

Held: The Minister of Education’s power to close a school was very broad, but not unfettered. The minister had to have regard to the purposes and the relevant provisions of the Education Act 1989, she or he must act lawfully in terms of the applicable statutory provisions and the usual provisions of administrative law apply. However, provided the minister acted “within the four corners” of the broad discretion, the court could not challenge the merits of a minister’s decision.

In an application for interim relief of this kind, the court had a very wide discretion and had to consider all the circumstances of the case in deciding whether some form of relief is appropriate before a hearing of the case on its merits takes place. This included forming a view on the strength or weakness of the applicant’s claim for review and the public and private repercussions for granting interim relief (Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 429).

Looking at the “essential facts” of the case, his Honour found that there was no sustainable basis for judicial review on the merits of the application. The court summarised these facts under four heads.

Economic viability

In 1998, Mokai School had received funding of $102,527.95. With a student roll of 17, this represented an average funding per student almost twice the national average. The estimated funding for 1999, when the student roll had fallen to eight pupils, was approaching four times the national average. It was unsurprising that the ministry regarded the cost “as being wholly disproportionate”. The school had also received other funding, including $68,900 per annum for property maintenance and security and resources under the Mäori Language Resourcing Policy.

On this point, the court accepted that “the support of smaller rural schools will involve some element of disproportion compared to national averages”. However, there was no basis upon which it could interfere under this head. “The determination of the precise point at which this becomes an undue disproportion is precisely the kind of matter for a Minister to consider in relation to the closure of a school. It involves the very kind of public policy choice which is central to the role of a Minister of the Crown.”

Delivery of a good education and compliance with the requisite statutory provisions

While there was evidence before the court that Ministry of Education officials were aware of the problems that a small school such as Mokai School would have in discharging its responsibilities under the Education Act 1989, there was “ample evidence” to support the minister’s view that there were “very real deficiencies in the delivery of the required programmes to children” at the school.

Alternative provision of education for the Mokai children

His Honour considered “it would be a matter of the gravest concern if a school were to be closed without suitable alternative education being available for the Mokai School children”. However, this matter was not overlooked by the ministry, and it was given “careful attention before a decision to close was made”. It was plainly for the minister to consider the precise point at which alternative education was too distant or somehow unsuitable. In this case, the information was before the minister and it showed “by and large” that the distances students would need to travel to alternative schools was about the same as the distance they had travelled to Mokai School.

The Mäori dimension/Treaty of Waitangi obligations

It was not clear to the court how the applicants sought to rely on any alleged breach of the Treaty of Waitangi. First, the Education Act 1989 did not contain a “Treaty clause” and there was, therefore, no legal obligation on the Crown to exercise the discretion contained in s 154/1989 in accordance with the principles of the Treaty. Unless the Treaty of Waitangi was incorporated into legislation, it was not directly enforceable (New Zealand Mäori Council v Attorney General [1994] 1 NZLR 513). On the other hand, the Crown acknowledged that, in the context of the case, “Mäori cultural values, including the value of the Mäori language, were relevant in the overall assessment required for the Minister’s decision”. However, his Honour had “the greatest difficulty in seeing how the Education Act 1989 could be said to be in conflict with Treaty principles”. Sections 62 and 63 of the Act expressly recognised cultural identity with the wishes of particular community. The former section required a board that was preparing or amending a school’s charter to “take all reasonable steps to discover and consider the views and concerns of Mäori communities living in the geographical area the school serves”. The latter deemed every school charter to contain the following two provisions:

(a) the aim of developing for the school concerned policies and practices that reflect New Zealand’s cultural diversity and the unique position of the Mäori culture; and

(b) the aim of taking all reasonable steps to ensure that instruction in tikanga Mäori and te reo Mäori are provided for full-time students whose parents ask for it.

Also, s155 of the Act permitted the establishment of Kura Kaupapa Mäori, in which te reo Mäori is the principal language of instruction. However, there was no authority for the proposition that “Treaty jurisprudence somehow extends to implying a right to education in a particular place on the basis of historical and whakapapa links”. The court accepted the submission of Crown counsel that “‘any such implications would incur unimaginable, practical difficulties’”.

Secondly, even if there were an obligation arising out of the Treaty, the Crown’s duty would be to take those steps that were reasonable in the circumstances (New Zealand Mäori Council v Attorney General, above). Thirdly, the Crown’s obligations were satisfied by the provisions of the Education Act 1989 itself and the minister would not be required to go beyond what the statute required. Despite “the greatest of sympathy” for the Mokai School community, his Honour dismissed the application.

Commentary: The judgment notes that, in his letter of 24 June 1999 to the chairperson of the board of trustees, the Minister of Education stated that the gifted land should be returned to the people who made the gift, or to their successors. In the letter, the minister expressed confidence that Land Information New Zealand would “carry out the necessary investigations promptly to enable any obligations of the Crown to be fulfilled”. This seems at some odds with his Honour’s concluding remark that the land and buildings would remain and therefore the school could be re-established in the (unlikely) event that the plaintiffs could succeed in proving that the minister had made a wrong decision.

On 29 July 1999, the plaintiffs in the High Court proceedings also submitted a claim to the Waitangi Tribunal relating to the impending closure of the school. The tribunal registered the claim as Wai 789, the Mokai School Closure (Atiamuri) claim. Subsequently, on 4 October 1999—the day the Mokai School closed—an amendment to the claim was filed containing the following statement:

“The Mokai School is truly unique. The Mokai school land was gifted by the Mokai community for educational purposes. The children at Mokai School are all tangata whenua of the Mokai area. Mokai School is the only school where these children will have direct access to their marae, their kaumätua, their kuia, their whänau, their reo and the Mokaitanga (Mokai way of life).”

On 21 October 1999, Judge Kearney, a member of the Waitangi Tribunal, conducted a conference to hear submissions on an application by the claimants for urgency. In his decision, released on 2 November 1999, Judge Kearney granted urgency on the basis that “there is a real risk that irreversible consequences may result from any delay in the Tribunal inquiring into and reporting this claim”. A hearing, estimated to take three days, has been scheduled for later this month.

OTHER

Māori Land Law

Richard Boast, Andrew Erueti, Doug McPhail, Norman F Smith. Butterworths 1999

In his foreword to this book, Justice Durie describes it as a “full and authoritative text” on present Mäori land law. Certainly a text like this has been required for some time, since, as he also points out, the last text on the subject in book form was Judge Norman Smith’s 1960 publication of the same title.

This publication is really two texts in terms of style, with one half written by Judge Smith (no relation to the former Norman Smith) and McPhail covering the essentials of Te Ture Whenua Mäori Act 1993 in a straightforward manner, while Erueti and Boast provide a more discursive background on custom law, the history of Mäori land legislation, and examine other legislation affecting Mäori land.

“Mäori Customary Law and Land Tenure” (chpt 1) begins with a discussion of what might distinguish “law” from “custom” and how, in New Zealand, a consistently positivist approach has been taken (ignoring culturalist and anthropological approaches), even down to the present day, so that, Boast concludes, the courts have only reluctantly admitted Mäori custom in limited circumstances in a manner analogous to foreign law or local custom in England. In light of that history, he believes that the best hope for the wider recognition of Mäori custom law is via statute law. Of course, the Mäori Land Court is a kind of exception to this trend. While its interpretation of custom has been shown to be weak at fundamental points, it has faithfully recorded many customs. Boast wonders also whether the land court’s interpretation of custom is now so longstanding and “notorious” that “court custom” is now the actual custom.

In the same chapter, Erueti examines the current thinking on Mäori custom, which draws mainly on a critical analysis of the old land court minutes, stripped of their Eurocentric bias. Erueti stresses the extremely dynamic nature of Mäori descent or corporate groups—the co-operating unit of people who have chosen to identify under a particular ancestor. He critically analyses the simple iwi centred model of Mäori society, whose evidential deficiencies are now well known, but which continues to influence government policy. He includes the Treaty of Waitangi Fisheries Commission's iwi-based approach to allocation, following the model of the Runanga Iwi Act 1990 (now repealed) which would have created corporate bodies to represent iwi. Erueti quotes Angella Ballara’s finding in her book Iwi. The dynamics of Mäori tribal organisation, that, historically, hapü were so independent that in battle they would each apply different military tactics and, when sharing a pa, occupy and defend separate parts.

If Erueti and Ballara are correct about the operating corporate unit being very much at the hapü/sub-iwi level, and the almost entirely elective nature of hapü membership, this does explain some of the problems the Fisheries Commission is encountering with its formula of allocation to iwi.

In “The Evolution of Mäori Land Law 1862-1993” (chpt 2) Boast repeats the story of the early native land acts now familiar from works by Boast and others (eg Williams Te Kooti Tangi and Ward An Unsettled History). There is now a large body of material on these matters, flowing mainly from the claims process and evidence before the Waitangi Tribunal. The years before the 1993 legislation and its introduction are also covered. In a brief summary of the whole period, Boast comments on the ‘colossal irony” of the 1873 reform to the native land acts which required the names of all owners to be placed on land titles. The resulting complexities of multiple ownership ensured that only the state had the necessary time and resources to locate owners, arrange successions and organise the resurveying of blocks. Boast is correct of course—the Crown was called in on many occasions after 1873 to “unlock” Mäori lands and make them available for Päkehä settlement.

The following 8 chapters, written by Judge Smith and McPhail, deal, in a fairly dry and summary fashion, with the Mäori Land Court jurisdiction and procedure” (chpt 3), the title record (chpt 4), successions (chpt 5), trusts and the Mäori Trustee (chpts 6-7), land utilisation and development (chpt 8), Mäori incorporations (chpt 9), and leases and alienations (chapters 10-11). These chapters are a straightforward exposition of the provisions of the 1993 Act and do not dwell at any length on current controversies in the court (for example, the debate about the retention vs utilisation provisions and policy of the legislation). This straightforward approach in part reflects the fact that the land court deals mainly with matters that are more administrative and procedural than strictly judicial. Consequently, it does not produce a steady stream of precedent setting  judgments (Boast notes at one point that Mäori Land and Appellate Court judgments are still not reported in any regular series). However, it would have been interesting to have seen a few thoughts on the state of the court today and how far it feels it has a revised role under the 1993 Act. It would also have been interesting to have seen some description or discussion of the Mäori experience with the new law, and particularly the new forms of trust, such as whänau trusts.

It is also disappointing that the historical background to some of the current provisions of the 1993 Act is not included, for example the historic problems with leasing arrangements and partitions. This would have helped readers in understanding the particular problems which multiple ownership has created, and enable practitioners to consider how well current provisions deal with those issues, or how they might be interpreted. This deficiency is evident also in the chapter on Mäori Reserved Land and Vested Land (chpt 12), which is very difficult for anyone new to that area of law to follow because very little background is provided on the creation of the reserved lands, and no background is provided on vested lands (which arose from a leasing scheme instituted at the turn of the century).

That said, the book concentrates on the basic legal points and those are clearly presented. It therefore succeeds as a basic text, which, as has been noted, has been required for some time.

In “Mäori Land and Other Statutes” (chpt 13) Boast examines how, under the Land Transfer Act, registered land interests obtained by bona fide purchasers will defeat purchases of Mäori land even if they were spectacularly fraudulent when originally concluded. He also looks at the effect of resource management law on Mäori land, including a discussion of geothermal and petroleum law. Boast maintains that, because Crown grants have always excluded minerals, and because no legislation suggests that in the conversion of Mäori customary land to freehold land, title to minerals was affected, Mäori at first instance own the minerals under Mäori freehold land. However, legislation nationalising petroleum, gold, silver and uranium have expropriated at least those interests. This analysis makes it hard to understand why current Crown policy is opposed to any negotiations over mineral interests in claim settlements.

When he examines the recent case law surrounding “offer backs” under s40 Public Works Act 1981, Boast speculates that, if land which was originally confiscated under the New Zealand Settlements Act 1863 is currently held for a public work, there may be an obligation to offer it back under s40.

In “Mäori land and the Treaty of Waitangi” (chpt 14) Boast takes a provocative look at the Treaty,  pointing out that “it is not self-evident exactly what the 'Treaty of Waitangi' is.” He endorses an analysis of the various texts by Bruce Biggs, who has concluded that “The Treaty” and “Te Tiriti” are two quite distinct documents. In view of this “it hardly seems possible to regard the Treaty as an effective cession of sovereignty, and much of the legal and rhetorical edifice built on the Treaty is in fact constructed on foundations of sand.”

While there has been much talk of the Treaty being incorporated into NZ law generally via various “backdoor” routes—such as through court recognition of the doctrine of aboriginal title—Boast argues that the courts have not taken the matter very far when they have had the opportunity, and have more regularly emphasised  the decision in the Te Heu Heu case, that the Treaty is not a part of NZ law unless specifically incorporated by statute (for a recent example, see the Mokai school case above).

Turning to statutory references to the Treaty, Boast finds specific references in 32 separate Acts, but notes the inconsistent phrasing in the different Acts, and the sharp drop in specific references since 1991 “despite some obvious candidates for its inclusion” (he gives as an example the Historic Places Act 1993). He does not consider however, situations where references to Mäori and Mäori concepts might invoke a consideration of the Treaty.

Boast examines the limited reference to the Treaty in the Preamble of Te Ture Whenua Mäori Act 1993 which does not mention the principles of the Treaty and is careful to avoid any suggestion that the interests of owners as determined by the Mäori Land Court should in any way be affected by the Treaty. As Boast points out, the land court is not a land claims court.

Finally, Boast briefly mentions the Waikato Raupatu Claims Settlement Act 1995 and the Ngäi Tahu Claims Settlement Act 1998, finding that the former specifically ousts the jurisdiction of the Mäori Land Court from most of the settlement lands while the latter makes use of the land court to implements some aspects of the settlement.

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