November 1999 Contents

MÄORI LAND COURT & APPELLATE COURT

Apppointment of new Chief Judge

WAITANGI TRIBUNAL

Appointments of members

Ngäti Awa Raupatu Report

OTHER COURTS AND TRIBUNALS

High Court—issuing coastal permits for marine farms

High Court—registration of vehicle, Treaty argument

High Court—immigration, Treaty argument

High Court—Te Ati Awa settlement negotiations

High Court—Fisheries pre-settlement assets litigation

AUSTRALIA

High Court of Australia—Yanner v Eaton, customary taking rights

 

MÄORI LAND COURT & APPELLATE COURT

Appointments

Mr Joseph Williams, formerly a partner in Walters Williams & Co, is to be sworn in as Chief Judge of the Mäori Land Court on 17 December 1999. He has been appointed as the Deputy Chairperson of the Waitangi Tribunal. Judge Wilson Isaac will replace Judge Norman Smith, who recently retired, as Deputy Chief Judge. Judge Hingston has resigned.

WAITANGI TRIBUNAL

Appointments

Mr John Baird has been appointed as a new member of the Waitangi Tribunal. He is a director or former director of various companies including Goodman Fielder/Goodman Fielder Wattie, Ceramco, Baycorp and Auckland Rugby Union. He holds a Bachelor of Science from Otago University where he was also a Rhodes Scholar,  Master of Arts in Engineering, from Oxford University, UK, and a Diploma in Marketing from the Institute of Marketing, UK.

Mr Brian Corban, Judge Richard Kearney, Ms Areta Kopu and Dame Augusta Wallace and Mrs Keita Walker have been reappointed as members of the Waitangi Tribunal.

The Ngäti Awa Raupatu Report

8 October 1999. Judge ET Durie (presiding), BPN Corban, GS Orr, MPK Sorrenson, KW Walker

This report was unusual because Ngäti Awa were already well advanced in their settlement negotiations with the Crown. However, the claimants requested that a report be made before a settlement was finalised. The report is therefore abbreviated and makes no formal recommendations.

The claimants

The claimants were the “people of the hapü, or tribes” of Ngäti Awa and Tüwharetoa in the Bay of Plenty. “Ngäti Awa” refers to the collection of independent and autonomous tribes or hapü that acknowledge a common origin from the ancestor Awanui-a-rangi. The hapü or ‘tribe’ was the unit exercising corporate functions on a daily basis, Ngäti Awa was the collective voice exercising influence as occasion required. The hapü of the Kawerau area identified with the ancestor Tüwharetoa. While being able to whakapapa to Ngäti Awa they could legitimately identify separately.

The tribunal examined the origins and present day membership of both groups, finding 22 Ngäti Awa hapü operating from 19 marae and over 11,000 people identifying as Ngäti Awa in the 1996 census. Tüwharetoa ki Kawerau numbers were less certain, but probably a 10th the size of Ngäti Awa on the basis of functioning marae and attendance at tribunal hearings. The tribunal commented that such number comparisons contradict Mäori custom—which stresses connections to many tribal groups—but were necessary to enable settlements with the two groups to be reached.

Musket Wars to NZ Wars

The musket wars affected Ngäti Awa territory and the resulting trade in flax for guns ironically led to eventual peace and prosperity as it developed into a full trading relationship with Europeans. Another outcome was a greater degree of hapü collaboration for security purposes. There were however few European traders on the ground by the 1860s and no large land purchases to introduce European concepts of land alienation and ownership. Missionary influence was also limited.

Twelve people from Ngäti Awa (Ngäti Pükeko) signed the Treaty of Waitangi in June 1840, but there is no oral tradition of what was discussed or understood, suggesting the impact was probably transient at most.

In the early 1860s the scheme of Mäori assemblies or runanga promoted by Governor Grey operated in the district, but not at any deep level.

War and the killings of Volkner and Fulloon

There was varying support for the Mäori King among Ngäti Awa. The aukati imposed by the Mäori King in the Waikato was a custom well known to Päkehä at the time. In customary terms it was not a declaration of war but a defensive statement. Persons would be killed who crossed the line whose good intentions were not manifest. The breach of the Waikato aukati by the Crown convinced many tribes that Mäori law would not be respected. The Ngäti Awa hapü either supported or remained neutral in the subsequent fighting. A large number of Te Arawa hapü on the other hand joined the government side. Their stance had much to do with a strategy to divert any possible government action against them, as well as historical tribal dissension.

Around 1865, the Pai Märire religion emerged in Taranaki and adherents including Kereopa Te Rau entered Ngäti Awa territory to proselytise and purported to place an aukati over the Whakatäne harbour.

There was no evidence of formal hapü involvement in the wars to this time. Ngäti Awa were nervous about Te Arawa intentions and a handful of Ngäti Awa had been involved in the fighting at Tauranga when the Governor shifted his guns there, but that was through a concern about government intentions south of Tauranga which was understandable.

In March 1865 about 150 Ngäti Awa accompanied Kereopa to Ohiwa harbour and Whakatöhea at Opotiki, where the missionary Volkner was killed and his body mutilated. Later evidence at the trials of the accused murderers showed that the young rangatira Wepiha Apanui and other Ngäti Awa had been present, but there was no good evidence that Wepiha was a convert to Pai Märire and Whakatöhea people seem to have carried out the killing itself. The killing was selective, not a fanatical uprising (with some evidence that Volkner was regarded by local Mäori as a spy for the government, and other missionaries such as Thomas Grace being spared even though taken prisoner), and may have been retribution for the killing of women by Crown forces at Waikato and Taranaki (Kereopa’s wife and daughter had been killed in the Waikato).

Nevertheless, Ngäti Awa must have expected that the government would react, and were concerned about Te Arawa involvement in any such reaction. At a hui attended by some 300 people Ngäti Awa formally expressed disapproval of the killing and imposed an aukati line emphasising that Ngäti Awa would keep within their own boundaries. This was a typical use of the Mäori law of aukati, which was passive in intent and designed to make clear that the Volkner killing was a Whakatöhea affair, and not an attempt to hinder the government efforts to seek those responsible. Ngäti Awa urged that Te Arawa forces go by sea to Opotiki and imposed a ban on forces landing at Ohiwa and Whakatäne harbours, but did not prevent small groups landing to seek information. The  half-Ngäti Awa government agent James Fulloon landed at Whakatäne in May 1865 to seek information and was not molested.

However, a group of Pai Märire adherents at Matata purported to imposed an aukati along most of the Bay of Plenty in July 1865 which was “somewhat fantastic” and not in accordance with Mäori law. When Fulloon again entered Whakatäne harbour in July 1865 he was killed for breaching the aukati by Ngäti Awa people who were Pai Märire adherents. This also was a selective killing and not a fanatical uprising. Despite the fact that both killings were distinct and did not indicate a general Ngäti Awa opposition to the Crown, the killings provided the excuse the government required to control a strategic area on the east coast.

The Ngäti Awa Raupatu (confiscations)

The Crown did not confiscate Ngäti Awa land for either their involvement in fighting prior to the killings of Volkner and Fulloon, nor for the killings themselves. The confiscation was for a rebellion which was said to have occurred after troops entered Ngäti Awa territory to effect the arrest of the killers. However, there was no such rebellion because:

•  The Crown relied upon Te Arawa to effect the arrests, when they were known to be enemies of Ngäti Awa, and were expected to seek utu for prior tribal wars. Government officials fully expected that Te Arawa would resort to extra-legal retribution against Ngäti Awa.

•  In September 1865 the Governor by proclamation pardoned all who had been in arms against the Crown and declared that there would be no more confiscations on account of the war to date. The killers of Volkner and Fulloon were excluded from the pardon and confiscation was threatened for all tribes who concealed them.

•  A further proclamation at that time established martial law over the Whakatäne and Opotiki districts and permitted military force to be used to capture the killers. However, Te Arawa troops had already been in Ngäti Awa territory for 2 weeks acting on the basis of civil arrest warrants and civil law. They were never recommissioned as military forces.

•  In the same month, 500 troops landed at Opotiki and destroyed crops and stock. Efforts to communicate the nature of the expedition to Whakatöhea and to seek help in capturing the killers were desultory. About 50 Whakatöhea were killed as they fell back defensively. Four persons were arrested for murder.

•  Te Arawa forces in the meantime were attacking Ngäti Awa pa and looting and destroying crops. Ngäti Awa acted defensively and undertook no counter-attacks. Several pa were taken and about 30 men arrested.

There was therefore no rebellion, but, at most, an endeavour to resist arrests, “quite a separate matter from organised resistance to overthrow a government.” While recourse to arms to resist arrest could be considered rebellion in certain circumstances, there was no evidence of that because Te Arawa acted as essentially an invading force. “Those purporting to have no other purpose than that of affecting arrests according to the civil law constituted a de facto threat to the lives and property of the Ngäti Awa people.”

Nevertheless, the Governor confiscated the land of all Ngäti Awa hapü in January 1866 under the NZ Settlements Act 1863. This was despite the fact that individuals from only two Ngäti Awa hapü to the west (around Otamarakau & Matata) had any involvement in the killings. Hapü further east (Whakatäne to Ohiwa and Opotiki), who had a record of co-operation with the Crown, suffered equally. The confiscation proclamation suffered from the same technical defects as similar proclamations commented on in the Taranaki Report. Among other matters, it did not proclaim an area under the Act and then specify discrete sites to be taken for military settlement within that area as the Act required, but simply confiscated the entire area under proclamation. The boundaries were so poorly drawn that some Te Arawa lands were taken. The area confiscated was huge (448,000 acres or approximately 245,000 acres of Ngäti Awa lands), despite Colonial Office instructions that no more than “just and moderate” areas be taken under the Act.

Trials of the killers of Volkner and Fulloon

In 1866, 36 persons were charged in the Supreme Court with offences relating to the killings of Volkner and Fulloon. An earlier courts-martial which condemned 28 of the prisoners to death, where the judge and interpreter had been officials directly involved with the Te Arawa incursions into Ngäti Awa and Whakatöhea lands, was found to be legally defective.  Of the five charged with the Volkner murder, 4 were eventually hanged. Of the sixteen charged with the Fulloon murder, 2 were eventually hanged. Over 20 men served various other sentences, with several dying of illness while in custody.

For reasons of public policy, the Waitangi Tribunal declined to formally review the trials, but instead made general observations that:

•  The majority of those found guilty were in fact involved in the killings.

•  There was insufficient evidence to show that the sentences received were manifestly excessive for their day, or that the trials were show trials only.

•  No doubt, better cultural awareness on the part of counsel for the accused and the judge (James Prendergast) might have allowed cultural defences to be put, that that did not mean the trials were unfair, and such defences would have made little difference in any event.

•  Even applying Mäori law, the accused were still guilty. The Pai Märire aukati imposed from Matata was not in accord with Mäori law (unlike the Ngäti Awa aukati imposed at a hui of 300 people).

•  While English law did not run strongly in the district, it was still relevant, and the killers should have expected it to be applied. Missionary influence had been felt in the Bay of Plenty and Mäori law had undergone changes with regard to infanticide, cannibalism and other matters.

•  The murders were not justified by the unfairness of the Crown in its approach to the wars generally and its expeditions to arrest the murderers.

“Looking at the matter in Treaty terms, The Treaty of Waitangi obliged the Governor to make laws for peace and good order between the races. While as a matter of broad principle the Governor was bound to respect Mäori law, he was also justified in imposing other laws to maintain the necessary standards for all. He had somehow to establish and maintain laws that would in time be accepted by both cultures. To that end, he was obliged to take strong measures to enforce the law to protect lives. In this respect, he was applying a law of universal acceptance. No law is an absolute truth, and the laws of all cultures, English law included, must bend to the dictates of universal standards.”

The Governor was not unreasonable in failing to commute all the death penalties or in delaying for many years pardons of those who were given lesser sentences. A legitimate purpose of sentencing is deterrence, and it would have been impracticable to release the prisoners at the time when Te Kooti was being pursued. However, the Crown should have allowed the remains of those who were hanged or died in custody to be returned to their tribes for burial, rather than insisting on burial in the prison grounds. There was no justification for this extra penalty, which, because of Mäori custom, was effectively imposed on the souls of the prisoners and “the heart of every Ngäti Awa at home”. The result was deep bitterness and disrespect for English law for generations. Despite repeated requests, the remains were not released until 1988.

The return and subsequent purchase of confiscated lands

Despite the fact that the NZ Settlements Act 1863 intended in its compensation provisions that innocent parties should not suffer from confiscation, by the time confiscation occurred in the Bay of Plenty, Crown policy had shifted to using the Act to subjugate Mäori generally to British law and authority. Through “flagrant misuse” of the 1863 Act by successive administrations, Ngäti Awa were deprived of the impartial judicial investigation which the Act allowed for in its compensation provisions. Ngäti Awa innocence or otherwise was irrelevant to the government, since it had determined that the policy of individualising land ownership to break up communal holdings would apply to all. Numerous validating acts were passed in subsequent years to tidy up the departures from the scheme of the 1863 Act.

After the blanket confiscation of the whole district (which deemed all land in the district to be Crown land), a special commissioner, John Wilson, was appointed to make arrangements with Ngäti Awa over the lands which they would retain. His work included reserving 87,000 acres to Te Arawa, putting Ngäti Awa off their lands on the east Whakatäne river to make way for military settlers, allowing no discussion on the military reserves he had made, favouring some Ngäti Awa hapü (mainly Ngäti Pükeko) over others, and telling Ngäti Awa women that they could not claim land if their husbands were deemed to be rebels (which may have dispossessed over 200 claimants when the Compensation Court later stated that such women could have made a claim). He confined Ngäi Te Rangihouhiri and Ngäti Hikakino, the 2 hapü most implicated in the killing of Fulloon, to just 278 acres of coastal sandhills and swampy lowlands prone to flooding.

Wilson’s prior arrangements meant that the Compensation Court sittings were reduced to a rubber stamping process without any independent investigation of who were and were not rebels. Of the entire confiscation area (some 448,000 acres), only 18,000 acres of the land returned were described as agricultural land. The process disrupted customary rights and created divisions and competition between communities.

When questions were raised about the legality of the entire process, and the Compensation Court reluctantly ruled that, on its interpretation of the 1863 Act, Wilsons’ arrangements were illegal,  the government swiftly intervened to quash that ruling and ensure that the court did not raise such matters of interpretation again. This was “blatant interference in judicial matters … completely contrary to the rule of law and the rights and protection afforded to all citizens under the Treaty.”

In subsequent rulings of the Compensation Court, it came as no surprise that Judge Mair (who had been involved in the military operations against Ngäti Awa), should rule in favour of Te Arawa and Tüwharetoa groups on thin evidence, against Ngäti Awa interests.

In addition, Ngäti Awa had to suffer over a decade of delay before the rulings of the court were actually imposed on the ground. In 1871 Wilson had to return to the district to revise and update his earlier awards because of the confusion and delay in implementing them.

Because of the confusion, final figures are hard to define, but of some 194,000 acres of original land holdings, Ngäti Awa received back 77,870 acres mostly because it was unfit for settlement for military settlers, and much of it rugged hills and swampland. The result was that many abandoned the land to live with relatives and those who had been awarded the land of other hapü were constrained in the use of it for customary reasons. All land was returned under individual title, with few restrictions on alienation outside the community. The subsequent alienation of land and the destruction of communities was thus made not only possible but likely. These government actions “completely undermined Ngäti Awa’s status and future as a tribal people.”

Crown purchase officers (Henry Mitchell and Charles Davis) began operations in the district in 1873. They directly exploited the marginal economic position of the owners by making advance payments to individuals and ensured that selling was restricted to the Crown only. Fresh native land legislation (eg Native Land Amendment Act 1877 s6) assisted the Crown to complete its purchases where the number of owners posed a problem. This was used aggressively to divide up blocks even where most owners had consistently rejected Crown advances and there was a clearly expressed community interest in retaining the block (eg Otuhounga block). There were also simultaneous purchases outside the confiscation area, where the activities of the Native Land Court demonstrated that in operation and effect it was fundamentally the same as the Compensation Court (even sharing the same personnel). The Crown also assisted  private Päkehä purchasers to obtain land (eg Whakatäne reserves).

The end result was that most of the land awarded as compensation to Te Arawa, Ngäti Pikiao and Tüwharetoa groups was sold during the 1870s, with Ngäti Awa land becoming fragmented and sold from the turn of the century.

The tribunal concluded that the operation of the compensation process as a whole was “entirely inconsistent with the principles of the Treaty of Waitangi.” An examination of the process did not indicate Crown compliance with even minimal protective standards for the tribe or the performance of fiduciary obligations.

Effects and impact of the war and confiscations

The effect of locating people on poor lands which were not their own was a breakdown in the community and respect for Mäori law. In response, Ngäti Awa arranged for the carved house Mätaatua to be built as a sign and focus of unity. However in 1879 the Crown requested it for an exhibition in Sydney. Ngäti Awa were at that time pleading for the release of those imprisoned and in no position to refuse any government request. The Mätaatua house was subsequently held by other institutions until its return to Ngäti Awa in 1996 under a separate settlement (see Mäori LR November 1996 p7).

The confiscation of land deprived Ngäti Awa of a capital base from which to develop the lands they retained. Individualisation of titles in their remaining lands further affected the ability to develop them. The loss of tribal culture and identity which flowed from this was perhaps the most significant impact of the confiscations, albeit the most intangible to measure.

It was clear that the Mäori agricultural economy of the area was struggling after 1870. Ngäti Awa also lost a valuable subsistence food source when the Rangitaiki swamp was drained. Mäori land was also rated to provide funds to the drainage scheme. In addition, Mäori land was taken under the Public Works Act 1908 for the scheme. Two hapü lost 187 acres of 278 acres of reserves in this manner. There were however advantages in the scheme for Mäori such as employment and a rising value of the lands which they retained.

The tribunal also looked at the impact of the confiscations on:

•  Employment: many Ngäti Awa moved to urban areas and became unemployed when the land could not support them.

•  Education and health: there was some evidence of a struggle to maintain schools and the health of the population at the turn of the century, although Ngäti Awa had increased their numbers in the twentieth century.

•  Government land development schemes: in the 1930s a land development scheme was launched at Ohiwa. However, the Crown insisted that the developed lands were to remain Crown and not tribal lands even after all development funds had been repaid.

•  Culture: Ngäti Awa were stigmatised by the confiscations as “tangata hara” or sinners, with the result that people preferred to maintain their links to iwi and hapü other than Ngäti Awa. The ability to pass on a strong cultural identity to younger tribal members had also suffered for many years.

The claimants were also anxious to recover wähi tapu sites and reserves lost through the confiscation and subsequent events, including:

•  Tüwharetoa sites including lake Rotoiti-paku, which had been affected by discharges from the Tasman pulp and paper operation at Kawerau.

•  Offshore islands including Whakaari (White Island), Motuhora (Whale Island) and the several islands of Rurima.

•  Sacred sites at Whakatäne affected by harbour works among other matters.

•  Parts of Ohope reserve which had been alienated or otherwise lost to the iwi.

•  The Whakatäne-Ohope headlands—including parts of the confiscated lands ostensibly taken for “military settlement” which ended up being endowed to the Auckland University College.

•  Te Putere native reserve near Matata, the Rotoma and Mangaone scenic reserves also lost to the tribe.

•  Putauaki, the sacred mountain of Ngäti Awa and Tüwharetoa ki Kawerau, which was bisected by the confiscation line and was now part of the Tarawera Forest Scheme in which only some Mäori were shareholders. This matter would be considered in detail later in separate Tarawera Forest hearings.

Findings

The Crown had already acknowledged that the Ngäti Awa confiscation was an “injustice”. This appeared to be the first time such an admission had been made in a legal forum. Since the claimants sought tribunal findings however, the tribunal was obliged by its statute to report on the claim.

Confiscation on its face was contrary to the Treaty of Waitangi guarantee of undisturbed possession of land. The real issue was whether the Treaty could be suspended due to a general state of war. The Treaty was effectively suspended by the NZ Settlements Act 1863, but the wars in Taranaki and Waikato for which it was suspended were wars of the Governor’s own making, as shown in the tribunal’ earlierTaranaki Report and in events surrounding the breach of the aukati in the Waikato. These invasions by the Governor caused war though the failure to respect the autonomy of the tribes. The deaths of Volkner and Fulloon followed from these earlier actions and would not have occurred otherwise.

Nor had there been any rebellion by way of a concerted attempt to overthrow the government. Actions such as the imposition of the aukati by Ngäti Awa and the resistance to Te Arawa forces were taken in self defence. Nor, when the land was actually taken in 1866 was there any emergency to justify the suspension of the Treaty. The tribunal said that its principal finding was that “the confiscation was contrary to the principles of the Treaty, in that the Treaty did not allow of it and the circumstances did not justify the suspension of the Treaty rights amongst the Ngäti Awa people.”

This finding could be distinguished from that of the Sim Commission report of 1928 which looked only at whether the confiscations exceeded what was fair and just and found that this was the case for Ngäti Awa.

The tribunal also found that:

•  The land confiscated in the Bay of Plenty went well beyond any amount required for military settlements, making the action unlawful in terms of the NZ Settlement Act 1863 itself. Subsequent validating legislation making the matter legal only compounded the Treaty wrong.

•  Only the minimum land required to quell any rebellion should have been taken and then only from groups clearly identified as wrongdoers. But a large area was taken, and with no attempt to identify specific groups who might have caused the trouble.

•  The 1863 Act had to be read restrictively and probably did not allow the taking of land from a tribal confederation in any event (as opposed to distinct hapü/tribes).

•  The only precedents for legislation allowing the taking of property from a general class of persons, as opposed to particular perpetrators of a crime, were confiscation statutes in Ireland and Scotland.

•  The compensation provisions were inadequate because they required the innocent to prove their status, and returned lands to them under a different land tenure regime. In practice, the Compensation Court did not make adequate inquiries.

•  There was no adequate endeavour to determine tribal boundaries even in broad terms.

•  It was contrary to the principles of the Treaty that the decision of the Governor to apply the 1863 Act to the Bay of Plenty district was not preceded by an inquiry and could not be reviewed.

•  It was contrary to the principles of the Treaty that the Governor did not abandon the confiscation when it became obvious that further military settlement was not required.

•  There was “compelling evidence” that the lands were confiscated for political expediency, namely, to acquire land and thereby break the tribal power of Ngäti Awa and punish the killers of Fulloon and Volkner. The 1863 Act allowed confiscation for rebellion only.

With regard to the arrests and trials, in Treaty terms, the Governor was justified in bringing to trial the murderers of Volkner and Fulloon, and the perpetrators ought reasonably to have anticipated that. However, the method for enforcing the arrest warrants, by engaging a military force known to be an enemy of Ngäti Awa, was dubious. Nor should the Crown have sought to attribute the ‘sin’ of Fulloon’s murder on all of Ngäti Awa when only a minority were involved.

With regard to the return of confiscated lands and subsequent purchasing, it was contrary to the principles of the Treaty that the returns were not effected through a fair and open process and that the title should be converted to individual holdings when the affected communities had not sanctioned that change, it was contrary to their customary preferences, and it had the effect of undermining tribal authority.

In terms of subsequent dealings with the tribe, it was contrary to the principles of the Treaty for the Crown to deal unequally between the Bay of Plenty tribes when it came to land development in the 1940s and to view Ngäti Awa with disfavour (probably because of the Sim Commission finding which went against the tribe).

Comments on matters to address in the claim settlement

The claim should be settled with Te Runanga o Ngäti Awa, which received unanimous endorsement during hearings, and with the responsible body for Tüwharetoa ki Kawerau—since that group had a clearly separate identity from Ngäti Awa.

The overlapping claims in the area should not inhibit a settlement. Hapü did not have political boundaries like those of Western states and attempts to impose them had a negative effect on Mäori connections and relationships. The “tribe” was the hapü—the body which exercised daily corporate functions. Hapü were autonomous and associated with a particular land area, but also mobile and maintained ancestral associations with distant places. Hapü were defined by whakapapa and allegiance and not land boundaries. Rights in land were not defined by lines, but by rights of access at particular times to particular resources. Individuals could travel and use resources as far as their whakapapa lines could take them. Because of this general mobility and early migrations and wars, sites of ancestral significance for one hapü could lie within an area occupied by another hapü. The strength of a hapü rested on its maintenance of connections—not on its insistence on exclusive boundaries.

While the generic name for the hapü affected by these claims was Ngäti Awa, there were important connections with other groups such as Te Arawa and Tühoe. It was customary to acknowledge a variety of ancestral connections.

Nor was it unusual for persons of a distinct lineage (eg Tüwharetoa ki Kawerau) to exist among a larger descent group and identify with that group or stand separately.

Authority in the region was exercised collectively through meetings of chiefs or runanga drawing from more than one hapü. But hapü remained autonomous even within that loose confederation.

The essence of Mäori existence was founded upon binding whakapapa and genealogical ties, not political boundaries. Dividing lines such as aukati were imposed as a last and not a first resort. The insistence on boundaries in recent years was a construction arising from Native Land Court practice. The tendency to see tribes as similar to European states had distorted important cultural values and undermined Mäori skills in managing intertribal matters.

In this case, Ngäti Awa, Whakatöhea, Tühoe and Te Arawa could each claim valid interests within the territory of the other. To insist on boundary lines would be a cultural affront. A lump sum payment approach to settlement was supported given these sorts of variables. There should be no precise definition of boundaries to determine the amount each tribe might be entitled to but reference to general calculations only. Ngäti Awa had the predominant interest in the confiscated lands as far as Ohiwa harbour. The loss of Ngäti Awa lands beyond the western confiscation of the confiscation and into what is a predominantly Te Arawa area should also be considered in a settlement. The Tüwharetoa interest in any settlement should also not be limited by boundaries, but set at about 10% of the Ngäti Awa claim.

Where particular lands were sought in the settlement problems might arise. Ngäti Awa, Tüwharetoa, Ngäti Mäkino and other hapü of Ngäti Pikiao of Te Arawa could claim legitimate interests in the Rotoehu forest and should take part in any settlement.

In managing arguments about relative interests, arguments that a particular group held an area exclusively for the whole of its history should be treated with suspicion. It might be appropriate for a group receiving an asset subject to conflicting ancestral claims to do so on the basis that the ancestral associations of others must be acknowledged and respected. No less was required of Europeans in resource management planning today. The privilege of title might need to carry the burden that the holder acknowledge cultural obligations to others.

In the case of Mount Putauaki, to which several iwi had associations, a title in the name of an ancestor and a trust chosen from local marae might be appropriate (it should also be a matter for separate settlement). For Rotoehu forest, those taking a share should be required to acknowledge the customary interests of others. Particular sacred sites might need to be reserved for separate administration.

The return of resources should not depend on agreement from all parties. The confiscation and its after effects may have made agreement today impossible. Requiring agreement might exacerbate the divisions. Intractable disputes should be referred back to the tribunal for a recommendation.

The fact that Ngäti Awa did not receive any compensation in the 1940s and subsequent years when compensation was paid to numerous other tribes for confiscations and early land losses should be taken into account in any settlement.

Ngäi Te Rangihouhiri and Ngäti Hikakino suffered more than other hapü from the confiscation, and any settlement should guarantee a land base for them for their future identity and economic development.

The present day scenic reserves included in the claim and which were taken in the confiscation included lands which should never have been confiscated because they could never have been used for military settlements. The claimants were entitled to the return of those lands without restrictions on their use. Accordingly, their demand for the conversion of the reserves into Mäori reservations jointly managed by local authorities or the Crown and Mäori was more than reasonable.

Any global settlement should exclude matters which had occurred in living memory ie within 75 years of the modern day claim being filed. This was because it would be contrary to sound principle and patently unjust to expect persons unjustly deprived of lands within living memory to accept the same major compromises as are required in the settlement of historical claims. It would also make such claimants competitors with the tribe for the global settlement. Four such claims were:

•  Tarawera forest: concerning the involvement of Mäori lands in a joint Crown-Tasman-Mäori forestry scheme in the late 1960s.

•  Waiohau C26: concerning Mäori land taken as a source of aggregate for the Matahina dam. Treaty principles would suggest that the claim should be promptly settled in the claimants favour.

•  Omataroa-Rangitaiki C60: involving Mäori land taken for aggregate and a village servicing the Matahina dam. A preliminary view would suggest that compensation and the return of some land at no cost was due in that case.

•  Rangitaiki 12: concerning Awakeri geothermal springs which were returned to “loyal” Ngäti Awa and subsequently taken under public works and scenery preservation legislation. Taken at face value, it did not seem that the takings were a compelling national interest which would justify departure from the Treaty. The Crown should contemplate the steps it might take to enable recovery of the land. Private interests in the form of the Whakatäne District Council were involved.

Commentary: although this report is not essential to the Ngäti Awa settlement itself it makes some important findings and observations which apply beyond this district, namely:

•  Situations in which the tribunal will comment on the relative numbers and strength of tribal groups.

•  The nature of hapü vs iwi and tribes—the general approach agrees with the High Court analysis in the fisheries settlement cases (see Maori LR August 1998 p4).

•  The problems created by imposing strict boundaries on tribes and hapü in settlement negotiations and the need for tribes and hapü to recognised the rights of neighbours in negotiations.

•  The extent to which English law applied in New Zealand in the nineteenth century and the situations in which Mäori custom could be put aside in the interests of peace and good order.

•  Further criticism of the objectivity and operations of the Native Land Court.

OTHER COURTS & TRIBUNALS

The Ngäti Apa Ki Te Waipounamu Trust and Others v Attorney General and Others

CP177/99. 10 August 1999. High Court Wellington. McGechan J.

This was an application for judicial review of the decision to issue two Orders in Council: the Resource Management (Marlborough Sounds Coastal Tendering-Marine Farming) Order 1998 (SR 1998/157) and the Revocation of Resource Management (Marlborough Sounds Coastal Tendering-Marine Farming) Order 1999 (SR 1999/212)

Background

Section 152 Resource Management Act 1991 empowered the Governor General, on advice from the Minister of Conservation, to make Orders in Council prohibiting relevant local bodies from granting the coastal permits that the Act required for, amongst other things, marine farming, such as mussel farming. Section 152(4) set out certain preconditions for the giving of advice by the minister, s152(5) provided that orders expired after two years and s 152(2) enabled orders to be amended or revoked.

On 8 July 1996, an Order in Council was made under s 152 in relation to the Marlborough Sounds, prohibiting the granting of coastal permits in respect of certain portions of the coastal marine area of the Sounds. On 8 June 1998, the Resource Management (Marlborough Sounds Coastal Tendering-Marine Farming) Order 1998 (SR 1998/157) was made and it came into force on 12 July 1998. To the extent that it was valid, the 1998 order extended the moratorium imposed by the 1996 order, but it did so for one year only, until 12 July 1999. Aware that the one-year extension might not be valid, a further Order in Council (the Revocation of Resource Management (Marlborough Sounds Coastal Tendering-Marine Farming) Order 1999 (SR 1999/212)) was made on 28 June 1999 revoking the 1998 order as from 12 July 1999. The effect of the revocation was that the Marlborough District Council, operating both as a territorial and a regional authority in the Marlborough Sounds, could receive and process applications for coastal permits for marine farms. On 2 June 1999, it advised all concerned accordingly.

Iwi were opposed to the moratorium ending before their claim to customary title to the foreshore and seabed of the Marlborough Sounds had been resolved in the Mäori Land Court. Representatives of various iwi brought these proceedings for judicial review on a number of grounds including:

•  Clause 1(3) of the 1998 order, providing for its expiration after one year, was ultra vires but severable, with the consequence that the remaining provisions of the order were valid and in effect until 11 July 2000.

•  The 1999 revocation order was invalid because the requirements for prior consultation with iwi in Part II of the Resource Management Act 1991 and arising from general principle were not met.

•  The 1999 revocation order was invalid because the requirement in s 154(b)(iv)/1991 to serve notice of it “as soon as practicable” on iwi was not met.

•  The Marlborough District Council did not have power to accept and process applications for coastal permits when it did not have power to grant such permits.

•  The Marlborough District Council breached duties to observe natural justice (in the sense of fairness) in accepting and processing applications for coastal permits before the expiry of the 1998 order.

Held: the application should be dismissed. Clause 1(3) could not be severed from the 1998 order. Therefore, as the 1998 order purported to operate beyond its statutory authority, the order was ultra vires and was not in force. Although that finding rendered questions as to the validity of the 1999 revocation order academic, for completeness and “lest a different view be taken”, his Honour went on to consider other matters raised in the proceedings.

The Minister for the Environment had not failed to consult with iwi before he advised the revocation 1999 order to be made. The only basis for an obligation to consult within Part II of the Resource Management Act lay in s8, which required persons exercising functions to take account of the principles of the Treaty of Waitangi. Referring to the “Lands” case [1987] 1 NZLR 641, his Honour stated that “[t]hese principles, and indeed ‘general principles’ (whatever that may mean), do not impose some open-ended obligation on the Crown”. Earlier in 1999, the minister had consulted iwi as to whether the 1988 order should be allowed to lapse on 11 July 1999 or whether it should be extended. At that time, iwi told the minister that they wanted the order extended and explained why. On the basis of the earlier consultations and dealings, the court accepted that the minister “had every reason to consider himself adequately informed as to iwi views”. In more “leisurely situations”, it could possibly be appropriate for the minister to go through the form of consultation at least as a courtesy, but it was not required in the circumstances of this case.

The court found that the minister had not caused a notice of the making of the order and its effect to be served on the iwi “as soon as practicable”, as required by s154/1991. At least some iwi had received notification letters on Friday 9 July, 11 days after the revocation order was made and two days before it came into effect on Monday 12 July 1999. However, this breach did not appear to have had adverse affects in this case (the plaintiffs commenced these proceedings on 7 July, for example) and it did not invalidate the 1999 revocation order.

The Resource Management Act 1991 permitted the Marlborough District Council to receive early applications (before the revocation of the 1998 order came into effect). The district council had given public notice that it would receive early applications and it had told the plaintiffs and others directly. The court did not accept that what had occurred had been administratively unfair. “In what is essentially a commercial situation, foresight and ability to move swiftly are not inappropriate, and not to be penalised.”

 

Weavers v Whakatane District Council & Another

AP 45/99. High Court Rotorua. 20 August 1999. Salmon J

Mr Weavers had been convicted by community magistrates on charges of having no warrant of fitness and no registration for his motor vehicle. He appealed that conviction to the District Court but the appeal failed. Mr Weavers then sought to appeal that decision in the High Court on the basis of a sovereignty argument founded on the Treaty of Waitangi. He argued that the laws of New Zealand that related to warrants of fitness and the registration of vehicles did not bind him and that the Whakatane District Council had had no right to prosecute him.

Held: the High Court had no jurisdiction to hear the appeal as the appellant had not followed the procedure for applying for leave to appeal. Nevertheless, the High Court went on to observe that, had the appeal been properly brought before the court, it would have dismissed it because it raised issues that were non-justiciable:

“The Courts cannot set aside statutes made by the Parliament of New Zealand ... . There is only one government of this country, that is the government elected each three years in our general elections. That government has the power to legislate. The duty of this Court when matters come before it arising out of statutory provisions is to interpret that legislation. The Treaty of Waitangi to which reference is made by Mr Weavers, was a Treaty by which Mäori inter alia gave to the Crown the right to govern all people of New Zealand. The laws that have been made subsequently are instances of that governance.”

Singh v Minister of Immigration

M 203-SW99. 8 November 1999. High Court Auckland. Robertson J

This was an application for judicial review of a variety of decisions taken by the Minister of Immigration and staff of the Department of Immigration in respect of the plaintiff’s ability to remain in New Zealand.

Mr Singh had arrived in New Zealand in October 1989 on a one-month visitor’s permit. In July 1991, he applied for refugee status, and in December 1991 he applied for residency under s 33(2) of the Immigration Act 1991. In due course, both applications were declined. Mr Singh appealed the decision against the refugee status application and it was dismissed, but he then filed a fresh application based on new information. That, too, was dismissed and Mr Singh appealed the decision. The appeal was dismissed in May 1997. Throughout this, two further events had occurred: Mr Singh had been served with a removal order in November 1992 and in May 1996 he had married a Mäori woman. On account of the marriage, the Department of Immigration was asked to reconsider granting a residency permit. This failed and Mr Singh was advised that the removal order would not be cancelled. In October 1998, Mrs Singh asked the Minister of Immigration to cancel the removal order. She cited three grounds: her marriage to Mr Singh, the fact that she and Mr Singh had had a child together and the fact that Mr Singh also had a relationship with her two other children who made up the family unit.

On 8 February 1999, Mr Singh was taken into custody from the family home. He had been in New Zealand unlawfully since the expiry of his visitor’s permit in November 1989. These judicial review proceedings were instituted on 17 February 1999.  Mr Singh sought declarations that there had been breaches of legitimate expectations, that decisions were flawed because of a rigid application of a pre-determined policy, that orders made were ultra vires, that breaches of natural justice and/or unfairness had occurred, that there had been a failure to take into account relevant considerations and that irrelevant considerations had been taken into account, and that there had been an unreasonable exercise of statutory power. Amongst her submissions, counsel for Mr Singh argued that a breach of the Treaty of Waitangi had occurred.

Held: the application for judicial review failed on all grounds. In relation to the submission based on the Treaty of Waitangi, the High Court first observed that the point had not been amplified. It then quoted and adopted a ruling of Tompkins J in Bahadur Singh v Minister of Immigration (M428/99, High Court, Auckland, 28 April 1999):

“A further matter relied on is that the plaintiff’s wife and son are Mäori and, as tangatawhenua, (sic) have special rights under Article 2 of the Treaty of Waitangi not to be deprived of their culture, whänau, language and te kanga (sic) Mäori. Relocating in the Punjab, Mr Brunton submitted, would extinguish these rights. Even if the Treaty of Waitangi were otherwise a valid consideration, and on that I express no conclusion, the decision not to cancel the removal order does not deprive the plaintiff’s wife and son of any rights they may have under the Treaty. As I have already pointed out, it is for the plaintiff and his wife to decide whether to go to India or remain in New Zealand. They can make that choice. I do not consider that this ground has been made out.”

Te Runanga O Te Atiawa and Others v Te Atiawa Iwi Authority

CP 13/99. High Court New Plymouth. 10 November 1999. Robertson J

The defendant Te Atiawa Iwi Authority (“TAIA”) was an incorporated society that had been created about ten years ago for a number of purposes, including representation of “Te Atiawa in respect of its Treaty of Waitangi relationship with the Crown”. Under the constitution, decisions were to be made according to tikanga a Te Atiawa and decision-making power was placed in an executive comprised of one representative of each of the constituent hapü. Voting was therefore by hapü, and not by individual iwi members. TAIA and the Crown had negotiated a draft heads of agreement for the settlement of Te Atiawa iwi’s historical Treaty grievances and each was ready to sign. The first plaintiff, Te Runanga O Te Atiawa (“the Runanga”) claimed to represent all hapü, although that claim was disputed. The second plaintiffs were individuals who were all members of Te Atiawa iwi and came from all the hapü that made up the iwi. The plaintiffs wanted to stop the settlement process from proceeding and to start settlement negotiations again with the Crown. Since July, when a special general meeting had taken place, “an unbelievable stand-off” had developed between the Runanga and TAIA. An annual general meeting had also taken place in September. At each of these hui, the majority of iwi members were against signing the heads of agreement. The plaintiffs claimed, amongst other things, that TAIA was not the authoritative voice of Te Atiawa, that it did not practice Te Atiawa tikanga and that it did not represent the majority of the iwi. The plaintiffs sought judicial review or the liquidation of the defendant, or both.

Held: There was no doubt that the claim was amenable to judicial review. However, TAIA’s constitution left no doubt that it vested power in the executive chosen by the individual hapü and that individual members of the iwi did not have voting rights. The court could not ignore the plain words of the constitution, which the people of the iwi had chosen for themselves, and it would be “a perversion of judicial review for the Court to intervene in the way requested”. The error in the plaintiffs’ submissions that TAIA’s executive had pre-determined in advance of the hui how it would vote and that the executive’s behaviour was irrational was that it presumed that power lay with the people. Although the facts showed that there was not substantial involvement of people from four hapü at the July hui, it was up to the hapü representatives on the executive and not to the court to determine how they should go about obtaining the information and the background upon which they were to exercise the vote they have. Although an expectation had grown that the hui would involve caucusing and that the caucusing would control the outcome of the meeting, this did not give the plaintiffs a legitimate expectation in law because the constitution did not provide that iwi members had a right to vote.

In the circumstances, there was nothing to justify the court exercising its powers under s 25(e) Incorporated Societies Act 1908 to wind up TAIA because it was “just and equitable” to do so. This was not a situation where there was a total impasse as had arisen in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 or in Re North End Motels (Huntly) Ltd [1976] 1 NZLR 446. First, no steps had been taken to try to change within the existing constitutional framework the representational arrangements of TAIA. Secondly, hapü individuals retained the power to change their hapü representatives on TAIA’s executive. Therefore, no deadlock position existed in law. Nor could it be argued (by analogy with the duty company law imposes upon directors) that the executive did not have a bona fide intention of carrying out their business in a proper manner. The facts showed the contrary in that the executive was “chafing at the bit to do what they were set up to do – progress the claim by signing the heads of agreement so that the settlement can move to its next phase”.

Accordingly, each cause of action must be dismissed.

Commentary: This was the third set of litigation this year relating to Te Atiawa and its Treaty claims (for a report on the first, see Kai Tohu Tohu O Puketapu Hapü Inc v Attorney-General & Te Atiawa Iwi Authority Mäori LR Feb 1999 p 2). At the end of his lengthy oral judgment in these proceedings, Robertson J told the litigants that this was:

“a sad case which should not be in the Court. The alternative form of dispute resolution which you contemplate in some of your proposed constitutional documents will provide more appropriate fora to deal with the problems which remain outstanding.”

Nevertheless, litigation is now continuing in a different forum. On 23 November 1999, Peter Love submitted a claim to the Waitangi Tribunal on behalf of the Runanga and it is registered as Wai 793, the Te Atiawa/Crown Heads of Agreement claim. Amongst other things, it contends that if the Crown proceeded with the Heads of Agreement that would be an act of bad faith against Te Atiawa iwi because the Crown knew that TAIA:

•  Did not have the mandate of its constituent iwi or hapü;

•  Had a seriously deficient constitution;

•  Had said it would obtain the views of hapü on the proposed agreement but had failed to do so; and

•  Had not acted according to Te Atiawa tikanga.

The claimant seeks a recommendation from the Tribunal that the Crown not sign the proposed Heads of Agreement with TAIA. In fact, TAIA and the Crown signed the heads of agreement, amidst some controversy, on 26 November 1999, the eve of the country’s general election.

On 8 December 1999, the Tribunal held a conference to hear an application for urgency. It adjourned the conference to allow Crown counsel to clarify its instructions. Claimant counsel agreed to the adjournment on the Crown’s undertaking that:

“no negotiation with TAIA of the content of a Deed of Settlement will take place prior to a hearing of the application for urgency in late January 2000.”

Te Waka Hi Ika O Te Arawa & Others v Treaty of Waitangi Fisheries Commission

CP395/93, CP 122/95, CP 27/95, M1514/94, M734/95, CP171/97, CP122-SW99. High Court Wellington. 3 December 1999. Anderson J

This minute recorded the outcome of a preliminary hearing to consider the approach to yet another aspect of the litigation challenging the proposed allocation scheme of the pre-Sealords fisheries settlement assets. At issue was whether a new matter could be added to all the appeals, namely, that because the warrants of the commissioners had expired some time ago and the Minister of Mäori Affairs had in recent months declined to appointed new commissioners, the commission had thereby been rendered legally incapable of preparing a scheme of allocation to recommend to the minister. The court granted leave to file an amendment raising this new issue. Leave was also given to include a further issue relating to fresh water fisheries. The court went on to consider whether all proceedings should be adjourned on the basis that at least one group was seeking leave to appeal the last judgment on these issues (see Mäori LR October 1999) to the Privy Council and “the important and relevant fact of a new administration in consequence of the recent general election.” This second matter was important because a new Minister of Mäori Affairs was “highly likely” to make appointments or re-appointments to the commission and also because:

“it has become increasingly and strikingly apparent over the past few years that the great issue of Mäori fisheries is an inapt dispute for litigation. Its scope in terms of history, culture, economics, politics and policy is so great that the Court, however willing to assist, is an inadequate instrument for the resolution of the difficulties. The Courts have tried, and will continue to try, to discharge their duties in this area, but a broader view than jurisprudence is required. If the substantive hearing were to be adjourned the new administration would have a greater opportunity to consider its own initiatives, if any, in this area. This Court is anxious to make it plain that the administration should not feel inhibited about taking its own initiatives by reason of extant proceedings. There is room for a parallel approach and the members of the present Court are in no way diffident about an Executive consideration of the matters of such great and proper moment to Mäori.”

Pragmatism and realism about the limitations of jurisprudence justified an adjournment of the main proceedings until 1 May 2000, when they would be called up simply to see if there had been any change in the position of the parties. Various other incidental timetabling orders were made.

Commentary: this minute contains a blunt request from the High Court for the incoming government to intervene to assist with a solution to the litigation. The addition of a new matter in the proceedings, the legal ability of the current commissioners, indicates that things can only get more complicated. The Court of Appeal has granted leave to the Manukau Urban Mäori Authority and Te Waka Hi Ika O Te Arawa to appeal its decision on the allocation to 'iwi' question to the Privy Council.

AUSTRALIA

Yanner v Eaton

[1999] HCA 53. 7 October 1999. High Court Australia. Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ

In 1994, Yanner, a member of the Gunnamulla clan of the Gangalidda aboriginal tribe, caught two crocodiles and ate them along with members of his clan. There was no question that he did this in accordance with clan custom and traditions. At the time of taking, the law of Queensland provided that all fauna was “the property of the Crown” except for fauna taking during an open season. In addition, no person could take fauna without a licence (ss 7(1) & 54(1)(a), Fauna Conservation Act 1974 (Qld)).

In his defence, Yanner argued that s211 (and s223) Native Title Act 1993 (Cth) applied. This provided that, after the passage of the 1993 Act, if a person was hunting in accordance with a native title right recognised by the common law, and any other law required a licence to carry out that hunting, then that person did not require a licence, provided the hunting was for domestic non-commercial needs and in exercise or enjoyment of their native title rights and interests.

In reply, the Queensland state argued that, since all fauna in the state was made the “property of the Crown” at the passing of the Fauna Conservation Act 1974 (Qld), any native title right which the common law might have recognised to hunt crocodiles was extinguished at that time, and the exemption of the Native Title Act 1993 could not apply (it was accepted that the 1993 Act was not retrospective).

Decision of Gleeson CJ, Gaudron, Kirby and Hayne JJ

These judges decided in favour of Yanner on the basis that, when the Fauna Act provided that all fauna was the “property” of the Crown it must have meant only a limited set of rights over fauna resided in the Crown because:

•  Fauna moved beyond the boundaries of the state eg migratory birds;

•  The common law gave only qualified property rights to any person over wild animals;

•  The context of the 1974 Act (with its qualifications on the Crown property, including a royalty regime) suggested that the Crown property rights in fauna were limited.

Essentially, the reference to property being in the Crown was a legal shorthand to indicate state control over the limited resource of fauna, a form of trust or guardianship for social purposes rather than actual ownership.

It was clear that the entire native title in land is extinguished by a grant in fee simple of that land, because a fee simple grant is entirely inconsistent with the continuance of any native title rights. This was most recently made clear by the High Court in Fejo v Northern Territory ((1998) 156 ALR 721).

In this case, the Queensland government was contending only that the Fauna Act was inconsistent with the native title holders in Queensland continuing to hold one of the rights and interests that made up the native title ie the right and interest in hunting and fishing.

It was unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights: “It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists.  No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern.”

It was important to remember that “an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.” And if a statute did not affect the land itself, but only regulated particular uses on it, then that would not sever the connection of the Aboriginal peoples concerned with the land and thus would not affect the continued legal existence of the native title rights claimed. This is exactly what the Native Title Act 1993 s211 assumed—that native title continues, even where a statute requires a licence before any fauna can be taken.

Gummow J

In a separate judgment, Gummow J supported the majority on the same grounds, but provided fuller reasoning, including comments that:

•  The land on which the crocodiles were killed was a pastoral holding leased by an aboriginal land council (no question arose about the relationship of Yanner to the land on which the crocodiles were taken).

•  Yanner hunted the crocodiles using a traditional harpoon­type weapon, but using a dinghy powered by an outboard motor. This mechanical device to provide transport during the hunt was not a method of hunting known to the Yanner’s tribe before contact with non­indigenous people. But it was an evolved, or altered, form of traditional behaviour as the courts have recognised (Mabo [No 2] (1992) 175 CLR 1 at 70, 110), and the lower court finding, that this method of hunting was consistent with the traditional custom of Yanner’s indigenous community, was not challenged.

•  The Crown’s “property” under the Fauna Act arose only upon a “taking” or “keeping” of fauna – and any inconsistency with native title could only arise in that limited respect and when that taking or keeping actually occurred. Consequently, the mere regulation at those particular points by requiring a permit before hunting could not abrogate the native title right.  Rather, the regulation was consistent with the continued existence of that right.

•  Further, the native title right to hunt involved much more than simply the action of “taking” crocodiles, it involved complying with a traditional code of conduct which was a “manifestation by the appellant of the beliefs, customs and laws of his community” (crocodiles had a totemic and spiritual significance for the tribe and only juveniles rather than mature crocodiles could be taken). Therefore, to the extent that the native title right extended to actions or customs prior to the actual “taking” of the crocodiles it could not be inconsistent with the Fauna Act.

McHugh J

In a dissenting opinion, McHugh J held that the Fauna Act had extinguished the pre-existing native title right to hunt crocodiles:

•  The only right of property in wild animals in common law was “the exclusive right to catch, kill and appropriate such animals” sometimes called “a reduction of them into possession.” That right arose from the possession of land on which the animals happened to be or from a Crown grant to enter another’s land for the purpose of catching, killing or appropriating wild game.  No doubt in Australia, the existence of common law native title rights meant that aboriginal people had similar rights over fauna.

•  Section 7 of the Fauna Act reversed the common law rules and vested all rights of catching, killing and appropriating fauna in Queensland in the Crown. It therefore gave to the Crown the sole right of catching, killing and appropriating fauna in Queensland together with the right to exclude every other person from catching, killing and appropriating that fauna. If the term “property” has any recognisable meaning in the Act, it must at least have conferred those rights on the Crown and taken them away from every other person once the Act was proclaimed.

•  Convincing evidence that the Act intended to take away any other rights was the removal of any exemption for aborigines which had existed in previous legislation and in an earlier case (Walden v Hensler(1987) 163 CLR 561).

Callinan J

Supported the dissenting judgment of McHugh J on the basis of the historical background to the fauna legislation:

•  “The most effective way to ensure the survival and protection of wild creatures, particularly as the means of taking and destroying them became more efficient, was for the State to legislate in the most comprehensive way possible to obtain absolute dominion over them and this I am satisfied the legislature of Queensland did in enacting the Act.”

•  Further, there was overseas authority for the proposition that when a statutory declaration of Crown ownership or property in fauna was coupled with a statutory exception permitting or recognising an aboriginal right to take fauna then native title rights to take that fauna were not extinguished. Since 1924, fauna has been legislatively declared to be the property of the Crown in Queensland, and from 1906 until 1974, Queensland legislation concerning fauna had provided an exemption for “any aboriginal killing any native [animal or fauna] for his own food”. Significantly, that exemption had been removed in 1974.

•  The key issue was whether property/“ownership” by the Crown of the crocodiles taken by Mr Yanner was so inconsistent with any native title right to it as to extinguish that right. The evidence pointed “inexorably to a direct collision between the custom or right claimed here, of taking and eating crocodiles, and the ownership of them by the State of Queensland.”  To the extent therefore that that custom or right may be an aspect or incident of native title enjoyed by Yanner and his people, it had been extinguished.

Commentary: This judgment is of interest because of the possibility that Mäori could argue that common law rights to take freshwater fish and other wildlife continue despite government regulation (egMcRitchie).