Legal Aid and Mäori
The Justice and Law Reform Select Committee is currently considering the Legal Services Bill, which was referred to it on 5 October last year. If enacted, the bill will bring significant changes to the administration and delivery of legal aid but otherwise will largely leave the status quo intact. Importantly, the proposed bill continues the philosophy underpinning the current Act by which legal aid is regarded as a loan that an applicant is required to repay by way of "contributions". Similarly, the bill does not change the eligibility criteria for legal aid. If the Bill is enacted, legal aid granted under the Legal Services Act 1991 will not be affected. However, the new legislation will apply to an existing application to the extent (if any) that the application has not been dealt with before the new legislation takes effect.
Under the bill, the Legal Services Board will undergo a name change and become the Legal Services Agency, managed by a board of up to six members. As with the present Legal Services Board, one board member of the new Agency will be appointed in consultation with the Minister of Mäori Affairs. The Bill will also abolish legal services districts and the legal services district committees, which currently oversee the granting of legal aid applications by court registrars (in the case of criminal legal aid) and legal services district subcommittees (in the case of civil legal aid). Instead, the administration of legal aid applications will be centralised within the new Legal Services Agency itself.
Another significant new feature is that legal services will only be delivered by listed providers approved to provide those services, or by officers employed by the Agency (akin to a "public defenders’ office"), or by a bulk provider. The Agency will be responsible for establishing and organising a list of approved providers in whatever way it considers convenient. The present Legal Aid Review Authority will also be replaced with a new Legal Aid Review Panel, comprising a mix of legally and non-legally qualified members who will review specific Agency decisions relating to legal aid applications and grants.
The bill largely preserves the current provisions that relate to Mäori land and to Waitangi Tribunal claimants seeking legal. A summary of these provisions follows.
Legal aid for claimants in the Waitangi Tribunal
Legal aid continues to be available to a Waitangi Tribunal claimant who has submitted a claim on behalf of a group of Mäori, including the claimant. Before granting legal aid, the Legal Services Agency must be satisfied that:
• the case requires legal representation; and
• the group of Mäori would suffer substantial hardship if aid were not granted; and
• the interest of the group is not sufficiently protected by any other claim.
In determining whether substantial hardship would result if aid were not granted, the Agency may take into account the extent to which the other members of the group, or any incorporated body that represents the group (such as a Mäori trust board or a Mäori incorporation) might reasonably be expected to contribute towards the costs of the proceedings (compare s 72/1991 and cl 32 of the bill).
The Agency may also refuse legal aid for other grounds (eg, if the amount of the contribution that the applicant is likely to pay will be greater than the likely cost of the proceedings or if the applicant’s prospects of success are not sufficient to justify the grant of aid) (compare s 34/1991 and cl 8 of the bill).
• An application will not be denied because the applicant does not meet the eligibility criteria based on the applicant’s disposable income and disposable capital (compare s 74/1991 and cl 8(5) of the bill).
• The applicant’s disposable capital does not include Mäori land or interests in Mäori land (compare s 32(1)(c)/1991 and schedule 1, cl 5 of the bill).
• A charge (for the purpose of recovering unpaid contributions) may not be imposed on property returned, transferred or granted by the Crown on the recommendation of the Waitangi Tribunal to a person receiving legal aid in connection with proceedings in the Waitangi Tribunal (compare s 41/1991 and cl 25(5) of the bill).
• The Legal Services Agency retains a discretion to grant aid despite a lack of information about the financial resources of the persons and bodies who might reasonably be expected to contribute to the costs of the proceedings (compare s 72(3)(b)-(4)/1991 and cl 33(2)-(3) of the bill).
• The contribution to be paid must not exceed an amount that is fair and reasonable having regard to the resources of the applicant and to the financial resources of other people and bodies whose resources are taken into account, and the likely cost of the proceedings (s 75(2)/1991 and cl 35(3) of the bill).
Mäori land and civil legal aid applications
The Legal Services Bill carries over from the Legal Services Act 1991 the following provisions relating to Mäori land for the purpose of deciding whether, and on what terms, legal aid should be granted (compare s 32/1991 and schedule 1, cl 5 of the bill).
• In any application for legal aid for civil matters (including applications in connection with Waitangi Tribunal proceedings), rent derived from Mäori land or interests in Mäori land is treated as disposable income.
• In applications for legal aid Mäori land and any interests in Mäori land is included in the calculation of a person’s disposable capital, unless the Agency believes that it would be inequitable to include it. (However, as noted above, Mäori land is excluded from a person’s disposable capital where the application is made by a claimant to the Waitangi Tribunal in relation to a claim that she or he has submitted on behalf of a group of Mäori.)
On this second point, the Legal Aid Review Authority has indicated that district subcommittees "must take a pragmatic approach to applications that include assets of this nature (Legal Aid Review Authority Decision No 113/93 (Wellington, LRA 337/92, 18 March 1993)). Thus, in a case where an applicant disclosed an interest in Mäori land valued at $25,600, the Authority held that "while he nominally has capital [to that value], the nature of its tenure as Mäori land is such that in our view it cannot in these circumstances be deemed "disposable" and that it would be inequitable to include its value in the assessment" (Legal Aid Review Authority Decision No 199/93 (Wellington, LRA 6/93, 21 May 1993)). Although the Authority is to be replaced by a new review authority, its decisions should continue to have high precedent value for its successor where (such as in this case) the issues concern provisions that have been carried over to the new legislation without change.
Need for other reform?
The Legal Services Bill retains the general prohibition against a grant of legal aid to an applicant on behalf of a body of people except for:
• certain applications made in a representative, fiduciary, or official capacity (compare ss 27(2) and 70/1991 and cls 8(1)(a)(ii) and 9(3) of the bill);
• certain "common interest" applications (s 71/1991 and cl 9(4) of the bill); and
• applications concerning certain proceedings before the Waitangi Tribunal.
While this prohibition applies equally to Mäori and non-Mäori alike, it may well be that it has a disproportionate effect on Mäori, for whom group interests often arise and prevail. A review of decisions of the Legal Aid Review Authority suggests that this might in fact be the case. For example, legal aid has been refused where:
• an individual, on behalf of her iwi and not in her personal capacity, sought to bring an appeal against a decision of a local authority that had granted a consent under the Resource Management Act 1991; (Legal Aid Review Authority Decision No 110/98 (Wellington, LRA 75/98, 25 August 1998));
• an individual took proceedings against the Mäori trustee on behalf of a trust, as well as in his capacity as the chairperson of the trust, as an individual and as a shareholder (Legal Aid Review Authority Decision No 143/98 (Wellington, LRA 108/98, 30 October 1998));
• an individual, who represented a group of parents, sought to bring judicial review proceedings against the Ministry of Education. The proceedings related to the establishment of a Kura Kaupapa Mäori (Legal Aid Review Authority Decision No 69/99 (Wellington, LRA 26/99, 31 May 1999)).
While it is difficult to draw conclusions from the authority’s brief decisions, the concern is strengthened by Law Commission research that shows that Mäori women have "emphasised their need for quality legal services in connection with Mäori land and environmental issues", issues that are frequently group or community oriented (Women’s Access to Legal Services NZLC SP 1, para 447).
Mäori Land Court & Appellate Court
34 APGS 12. 24 February 2000. Deputy Chief Judge Smith, Spencer and Carter JJ
This decision concerned two pieces of General land in the Hawkes Bay region whose owner (Ihaka Whaanga) died in the late nineteenth century. It was thought that a Crown grant had issued and been registered for the land, although no certificate of title had been registered.
Mac Whaanga had occupied the land for some years and lodged a claim with the District Land Registrar for legal title under s3 Land Transfer Amendment Act 1963 on the basis of continuous adverse possession for over 20 years (his father had occupied the land since the 1940s and Whaanga had substantially improved the land by building a house on it). Whaanga had no other connection with the land and was not related to the deceased owner.
The descendants of the deceased owner sought to counter Whaanga’s claim by applying to the Mäori Land Court to change the status of the land to Mäori land, and have the land court determine who were the successors to the deceased owner, and vest the ownership in them. The land court heard the change of status, succession and vesting applications and made orders accordingly. Whaanga appealed those decisions on that basis that the land court:
• Failed to consider the legal interest arising from the claim to title through adverse possession
• Failed to consider his equitable claim to the land based on unjust enrichment
• Acted in breach of natural justice, since he had very little notice of the land court proceedings
• Made an error when discussing his whakapapa.
Held: the appeal should be partly upheld and partly dismissed:
Change of status generally
Section 133(3) Te Ture Whenua Mäori Act 1993 allows a change of status of General land to Mäori freehold land where the land court is satisfied that:
• The land is beneficially owned by more than one Mäori
• The owners have had an adequate opportunity to consider the proposed change and
• Either all owners agree to the change or a sufficient proportion agree and the land can be managed or utilised effectively as Mäori freehold land
• Such a change is desirable having regard to the history of the land, the identity of the owners and their personal association with the land.
General land will inevitably be subject to the land transfer title system, which does not differentiate between legal and equitable owners. So a question arises about how far the land court can look behind the legal ownership in determining "beneficial" owners.
Where s133 refers to "owners" that must in context include "beneficial" owners.
Throughout the TTWM Act 1993 there are references to beneficial ownership, and this generally means those persons whom the land court has determined are beneficial owners and who have been entered into court records (for example s100(1), s149, s127(1) and also ss122-123/1993). There are however exceptions (for example s165(1), s170(1)/1993). For the purposes of s133(3), beneficial owners can only mean those persons determined to be such owners by evidence to the land court, since no pre-existing list of beneficial owners will be available. Parliament intended that the land court use its expertise in determining beneficial owners.
However, how widely the land court should apply the term "beneficial owner" is uncertain. It cannot be limited to those who might be found to be owners according to trust law. It must extend to "those persons who, at law or in equity, are entitled to call for, or make arrangements themselves by way of legal process, for the conveyance to them of the legal title to the land." Where an owner dies, equitable rights to ownership come into being whether under a will or intestacy. People may take steps to protect and perfect those rights. Under s133(3) the land court must determine whether those rights exist on the basis of evidence. This is not confined to showing a trustee-beneficiary relationship. It extends to all those who can satisfy the court either at law or in equity that they are entitled to an interest in the land. The fact that no steps have been taken to obtain a grant of administration has no bearing on beneficial ownership (a grant of administration is merely a procedural matter anyway and does not alter rights in any event). There are no words in s133(3) limiting the land court to considering only trustee-beneficiary relationships.
Further, it was not unusual for applications to be brought under s133 to facilitiate succession and thus the development of land owned by Mäori (there was no equivalent provision under the Mäori Affairs Act 1953). Such facilitation falls within the principles in the Preamble to TTWM Act 1993, and there is a requirement to interpret the Act in a manner which best furthers the principles set out in the Preamble.
Prior to 1993, there were only limited methods to address the problem of deceased Mäori owners of General land. The Mäori Affairs Amendment Act 1967 provided that the Registrar of the Mäori Land Court could change the status of Mäori land to General land where there were 4 or fewer owners – then the Mäori Affairs Amendment Act 1974 (s68(5)) allowed that process to be reversed where the owner was deceased when the change was made. Section 133/1993) gave the land court "much wider powers", and to construe it restrictively would create difficulties in applying the provision where owners or some of them were deceased, as here.
Also relevant was s142/1993 – the status order would take effect only when it was registered.
Change of status in this case
In this case, to establish title through the land transfer system would have involved the successors to the deceased owner in a series of grants of probate or administration and numerous transmissions and transfers. Having the Mäori Land Court determine the successors "normally offers a much quicker and less costly method of determining those entitled and vesting the land in them." It was "not unusual" for people to take this approach where land was Mäori owned and there were numerous persons entitled. The successors were validly seeking to achieve in the land court what they could have achieved through the land transfer system, namely, the registration of a title order against the registered title, thereby challenging Whaanga’s claim (the process to establish adverse possession would require notice of Whaanga’s claim to be given to the registered owners, and if they lodged a caveat, his claim would be defeated).
The ability of Whaanga to appear in the Mäori Land Court was not questioned, but since his only claim to the land was by virtue of long occupation, his particular objection was very different from that which might be brought by a person claiming ownership through a more standard interest.
Adverse possession and unjust enrichment
The land court had no power to rule on the issue of whether Whaanga had an interest in the land through adverse possession. That was a matter for the land registry process.
Nor did the land court have the power to consider his claim as if it were an entitlement by way of succession. It only had jurisdiction on succession applications to consider persons entitled in the normal manner. The land court cannot for example deal with disputes over testamentary capacity, or testamentary promises or moral obligations to family members (separate Acts deal with those matters ie Law Reform (Testamentary Promises) Act 1949, Family Protection Act 1955).
Whaanga was in fact claiming an equitable interest and was free to lodge an application under s18(1)(a)/1993 (land court may hear and determine any claim in law or equity to an interest in Mäori freehold land) against the owners who had recently been determined.
Breach of natural justice
Nor had there been any breach of natural justice in terms of late notice, in part because Whaanga’s interest was not that of a beneficial owner, so he was not required to be notified of the owners meeting which voted to change the status of the land.
Sufficient owners in support of proposal
There were sufficient beneficial owners in support of the application to change the status of the land. The fact that the support at the owners' meeting had been unanimous was an important factor. Where there are large numbers of owners, it can be expected that only a few will attend meetings of owners. The court will look to ensure that a broad spectrum of owners and not just a particular faction are consulted.
Whether the land would be would be managed effectively as Mäori land
There was sufficient evidence before the court of this. The fact that there were over 100 potential successors of the deceased, who was a paramount chief, meant that there would be substantial difficulties and costs in obtaining title other than through a change of status to Mäori land. The change of status would also allow the owners to administer the block, including taking action to meet the claim lodged by Whaanga.
The land court had wrongly noted the whakapapa of Whaanga in its decision, but that had not materially affected its final judgment.
The status order
The fact that a change of status might threaten Whaanga’s adverse possession claim was not a reason in itself for the land court not to proceed. The beneficial owners were seeking nothing more than what they might obtain through the land transfer system. In addition, since Whaanga’s claim to adverse possession had been lodged before the change of status application, he was not affected by s21(b) Land Transfer Amendment Act 1963 – which prevents claims for adverse possession in relation to Mäori land. Should Whaanga be successful in his claim in the land transfer office, as registered owner of the land, he would be able to apply to the land court for a change of status back to General land, and the land court would take into account the circumstances of the recent change as a major reason to find in his favour.
The succession order
While Whaanga had raised no grounds for interfering in the succession orders which had been made, there were serious flaws in the succession order of the lower court. Certainty of title was imperative to the land court and appellate court and therefore, regardless of what matters had been raised on appeal, the appellate court, as protector of title, should intervene where the flaws were such as to open the title to invalidity. These were:
• The lower court had determined successors in instances where there was an intestacy (ie no will) as if the land were Mäori land and applied ordinary Mäori land court records of successions to Mäori freehold land. However, the land was General land up until the change of status, and rules of succession on intestacy in relation to General land had to be applied, including provisions giving surviving spouses full interests in the land (under the Administration Act 1969).
• The succession order should not have been made until the change of status order had been registered, because it was only at that point that the order took effect (s142/1993) and actually became Mäori freehold land.
• The deceased owner had made a will for which probate had been obtained, and therefore succession should have been determined under legislation in force before TTWM Act 1993 in any event (s100(2)/1993 - the appellate court would have corrected that error under its general power to make amendments (s86/1993), had it been the only issue).
The succession order was therefore set aside. The descendants could reapply for the order once the change of status order was registered. Establishing those beneficially entitled would not be simple. Administration Acts from 1879 onwards would have to be applied, and their application to the estates of Mäori in each period would have to be determined. Prior to 1953, succession of Mäori to land was either according to Mäori custom, or spouses were specifically excluded (eg s140 Native Land Act 1909 and s177 Native Land Act 1931). It was probably only after the Mäori Affairs Act 1953 that spouses of Mäori were able to succeed to General land (under the Administration Act 1952).
The state of the title to the land
Since TTWM Act 1993 requires all title orders of the Mäori Land Court to be registered in the Land Transfer Office, the appellate court must be concerned that when decisions as to title are made they can lead to the establishment of a registerable title. In this case there were doubts as to whether the land was in fact Crown land as opposed to General land. The deceased owner, Ihaaka Whaanga, paid the Crown for the land in 1873. The title was conveyed by a Crown grant, which he was to uplift on the payment of certain fees, but he died on the day the grant was ready to be uplifted. Title to the land was never registered. Either he never paid the fees, the grant was never uplifted and the title was never registered, or it was uplifted and registered, but the records were destroyed in the Napier earthquake. The lower court found (over the objections of Mac Whaanga) that the Crown grant had been uplifted and that the land was General land, relying on several gazette notices recording the original sale.
Because of the uncertainty, and the fact that a status order under s133/1993 may only be made where the land is General land (not Crown land), the appellate court had undertaken its own enquiries. Those had revealed that, while the land registry could not confirm to the appellate court that a Crown grant had in fact been registered (a pre-requisite to obtaining adverse possession in the absence of a registered title), the Court of Appeal in Re Bradley Brothers’ Application  NZLR 339 determined that a Crown grant takes effect from the date of issue, regardless of whether it is uplifted or not. Accordingly, there was no doubt that the land was General land and that the land court had the jurisdiction to make the change of status order.
Two alternative scenarios for registration of that order now existed. Either the land registry accepted that the Crown Grant was registered (which it seemed to do when it accepted that Mac Whaanga could apply for title through adverse possession), and so the status order could be registered directly, or, if the land registry thought that the Crown grant had not been uplifted, then it was a simple matter of paying the outstanding fees, registering the title, and then registering the status order. If questions arose about who had authority to act for the deceased owner in that process, then an application for a limited trust (s215/1993) or agency (s183/1993) could be made.
Accordingly, the appeal against the status order was dismissed. However the determination and order of succession (under ss113 & 118/1993) were revoked.
Other courts & tribunals
Contact Energy Limited v Waikato Regional Council and Another
A004/00 Environment Court. 24 January 2000. Judge DFG Sheppard, PA Catchpole, F Easdale
This was an appeal against decisions by the Waikato Regional Council and the Taupo District Council to refuse resource consents for the taking of 57,000 tonnes per day of geothermal fluid from the Tauhara geothermal field near Taupo. The consents would have enabled the development of a power station with a capacity of 50 megawatts and an associated binary plant of 20 megawatts’ capacity. After lodging the appeal, the applicant for the consents, Contact Energy Ltd, modified its proposal so that it would require only 20,000 tonnes of geothermal fluid per day, which would allow for a power station of 15 megawatts’ capacity. Under the modified proposal, up to 20,000 tonnes per day of separated geothermal water would be reinjected to ground at a number of sites. It was the modified proposal that the Environment Court considered on appeal.
The Tauhara Middle Trusts was one of the submitters represented at the appeal hearing. The trusts held more than 1,635 hectares of land over part of the Tauhara geothermal field for 2,400 members of the Tauhara hapü of Ngäti Tüwharetoa. Counsel for the trusts raised three main concerns. First, he submitted that the Tauhara hapü had a special relationship with the Tauhara geothermal resource. For the hapü, this resource was a highly valued taonga. (On this point, counsel initially submitted that, in the course of determining sustainability for a resource that is a taonga, consideration of sustainability from a Mäori perspective is required and that only Mäori can answer that question. However, counsel conceded that, as a matter law, it was the Environment Court that decided whether the proposal amounted to sustainable management in terms of natural and physical resources as described by s 5/1991. Counsel also recognised that a claim that the hapü were pursuing elsewhere for exclusive and undisturbed possession of the resource was not a matter for the Environment Court to decide.)
Secondly, counsel submitted that members of the Tauhara hapü acted as kaitiaki of Mt Tauhara and of the Tauhara geothermal field. Accordingly, he sought a determination that, if the consents were granted, Contact Energy be obliged to enter into a meaningful relationship with the trusts that recognised the mana whenua of the Tauhara hapü and their position as kaitiaki.
Thirdly, he contended that Contact Energy had undertaken insufficient consultation with the trusts, although he conceded that there had been difficulties in identifying mandated representatives of the hapü.
An environmental resource planner, Mr Tutua-Nathan, also appeared on behalf of the Trusts. He urged that tikanga Mäori be recognised and provided for by: (1) the exercise of kaitiakitanga; (2) requiring Contact Energy to provide appropriate training for tohunga selected by Ngäti Tüwharetoa to better understand new technologies and innovations; (3) requiring that these tohunga be involved at all levels of the proposed development to provide cultural and spiritual advice; and (4) requiring the Tüwharetoa Mäori Trust Board "to receive and have the opportunity to fully consider and be consulted on all relevant information, data and environmental impacts reports relating to baseline study and any changes to natural phenomena which occur over time". He also contended that any peer-review panel should comprise 50 percent representatives of the iwi. In claiming that the taking of geothermal fluid should be in accordance with tikanga Mäori, Mr Tutua-Nathan relied on section 14(3)(c) of the Resource Management Act 1991 (Mäori may take, use, dam, or divert geothermal water, where the water, heat, or energy is taken or used in accordance with tikanga Mäori for the communal benefit of the tangata whenua of the area and does not have an adverse effect on the environment).
Held: the resource consents should be approved with conditions. As for the issues raised by the Tauhara Trusts:
Conditions attaching to the resource consents, if granted, could recognise and provide for the relationship between Mäori and the Tauhara geothermal field. The conditions could allow for the exercise of kaitiakitanga by providing information and offering advice on Mäori cultural and spiritual matters that related to the exercise of the resource consents. Without prescribing the detail of the conditions, the court indicated that the consent-holder could be expected to co-operate reasonably in allowing kaitiaki to perform rituals and offer kaitiaki on property it occupied for the purpose of exercising the resource consents. There was also a possibility of Tauhara hapü taking part in a monitoring regime. At a practical level, however, the Tauhara iwi would need to agree on an identified person or persons to whom the consent-holder could send the information, who would have the mandate to offer a single stream of advice on behalf of them all, who might liaise over cultural and spiritual observances, and who would be available to take part in monitoring.
Any such conditions would have to "reflect the position at law that decisions about the use of the geothermal resource are made by the consent authority appointed under the Resource Management Act 1991" (or by the Environment Court on appeal), and it would be inappropriate for the Environment Court to presume that Ngäti Tüwharetoa’s claim to rangatiratanga over the resource would be successful.
The evidence showed that Contact Energy’s attempts to consult with tangata whenua over the proposal included attendances at meetings and hui, outlining the proposals and answering questions, seeking to understand cultural and resource management issues from the tangata whenua’s perspective, and exploring ways to work together. However, these endeavours had been frustrated by an inability to identify anyone with a mandate to speak for the hapü. In the circumstances, Contact Energy had "made appropriate attempts to consult with tangata whenua over its project" and "the reason it was not able to achieve more was not due to any failing on its part". There was, therefore, no basis to the claim that there had been a failure to take into account the principles of the Treaty of Waitangi (as required by s 8/1991) through insufficient consultation with tangata whenua.
Mr Tutua-Nathan’s assertion based on s 14(3)/1991 was wrong in law. The Waikato Regional Council’s proposed regional plan classified the Wairakei-Tauhara geothermal system as a development geothermal system and Contact Energy’s proposal to take geothermal fluid was a discretionary activity under the plan. Contact Energy would be entitled to rely on s 14(3)(a)/1991 which provides authority for taking geothermal fluid generally if a consent is secured, but not on s 14(3)(c)/1991, which had no application to this case.
In relation to the suggestion that training tohunga should be a condition imposed upon any resource consent granted to Contact Energy, the court doubted whether Mr Tutua-Nathan had appropriate knowledge and authority to advocate it on behalf of the Trusts, whether such a condition would be for a resource management purpose, or whether it would fairly and reasonably relate to the proposed abstraction and reinjection. In any case, the court noted evidence that Contact Energy sponsored a student completing a PhD course relating to the Tokaanu geothermal field who was a member of Ngäti Tüwharetoa. For those reasons the court did not accept that such a condition should be imposed. The court also considered that Mr Tutua-Nathan had misconceived the role of a peer-review panel. The panel was not intended to represent stakeholders but to "act independently in their professional responsibilities". A requirement that half its members be representatives of Ngäti Tüwharetoa would therefore "negate the purpose of the peer-review process".
The court invited counsel to confer and in due course submit a draft formal order granting the consent needed for the modified proposal and containing proposed conditions that would give effect to the contents of its decision.
Commentary: this report of the case deals only with the matters raised on behalf of the trusts, which are dealt with in the judgment under the heading "Mäori issues".
Ngäti Türangitukua Claims Settlement Act 1999
The Ngäti Türangitukua Claims Settlement Act 1999 was enacted, without any substantial modifications from the original bill, on 14 October 1999. It gives legislative effect to various elements of a deed of settlement entered into between the Crown and Ngäti Türangitukua as a final settlement of the Türangi Township claim. The claim, which was originally submitted to the Waitangi Tribunal in 1989, concerned the Crown’s development of the Tongariro Power Development at Türangi in the 1960s. For a report on the Ngäti Türangitukua Claims Settlement Bill, see Mäori LR, August 1999, p6; for a review of the Waitangi Tribunal’s report on the historical claim, see Mäori LR October 1995 pp2-5; for a review of the Waitangi Tribunal’s separate remedies report on the Türangi Township claim, see Mäori LR July 1998 pp5-10; and for coverage of the deed of settlement, see Mäori LR February 1999 pp3-6.
Commentary: As with previous settlement legislation, the passage of the Ngäti Türangitukua Claims Settlement Bill through Parliament caused considerable tension. On the one hand, there were fears (held, for example, by the then Minister in Charge of Treaty of Waitangi Negotiations, Sir Douglas Graham) that if Parliament amended the bill, that would unravel the settlement that the hapü and the Crown had entered into. On the other hand, some MPs voiced grave concern that the "take it or leave it" position in which Parliament found itself wrongly curtailed its role and mana. As one member put it:
"The role of Parliament is transforming itself under the claims settlement process. ... It is ultimately for this House to decide whether it will support that settlement, and the select committee, on our behalf, should be reporting back its views, and, if it so deems, reporting back an altered settlement. If that means that the Government must go back to Ngäti Türangitukua, if that report back means that the settlement must go back to the Office of Treaty Settlements and the Minister for renegotiation, so be it. ... As desperate as we are for settlements to continue, there is no reason that any changes that the select committee wants cannot be taken back to the people. I say that the process is wrong, that it is undemocratic, and that for Parliament to go along with that kind of gobbledygook undermines its role (Donna Awatere-Huata, NZPD, 5 October 1999).
Fuelling the tension was an apparently growing opposition to the bill amongst hapü members as evidenced in a number of submissions to the Mäori Affairs Select Committee, which examined the bill. In the result, the final enactment contains only minor amendments to the original bill.
Hauraki Gulf Marine Park Act 2000
The Hauraki Gulf Marine Park Act 2000 was enacted on 27 February 2000 and came into force the same day. The Act establishes a framework for the integrated management of the resources of the Hauraki Gulf, including the establishment of the Hauraki Gulf Marine Park and the Hauraki Gulf Forum. A number of amendments were made to the original bill (for a report on the bill, see Mäori LR Aug 1999, p6), including:
• Reference to the two Mäori names for the Hauraki Gulf, Tikapa Moana and Te Moananui a Toi (see, the Preamble and s 4/2000)
• A revised Treaty section (s 6/2000), which adds the requirement that Part 3 of the Act, relating to the Hauraki Gulf Marine Park, be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi, (although this does not apply to any area of the Park that is foreshore, seabed, private land, taiapure-local fishery, or mätaitai) and modifies the qualification that the Act does not detract from or add to Treaty obligations imposed by other Acts that relate to the Gulf. (The requirement that the Hauraki Gulf Forum must carry out its functions under Part 2 of the Act having regard to the principles of the Treaty of Waitangi remains.)
• A specific reference to kaimoana (seafood) in the objectives of the management of the Hauraki Gulf, its islands and catchments (see 8(c)/2000).
• An increase in the tangata whenua representation on the Hauraki Gulf Forum from four to six representatives (s 16(2)(e)/2000).
• A requirement that the Minister of Conservation pay the tangata whenua representatives on the Forum allowances in accordance with the Fees and Travelling Allowances Act 1951 and, after agreement between the Minister and the representatives, the actual and reasonable communication and consultation costs incurred in the course of their work (s 29/2000). In the original bill, the Minister had a discretion to make these payments. However, Parliament retains an ultimate discretion in the Act as it must appropriate the funds for these payments.
• The addition of a map to indicate in general terms the boundaries of the catchment area and the coastal marine areas of the Hauraki Gulf (s 50 and schedule 3/2000).
Te Ture Whenua Mäori Amendment Bill /Mäori Land Amendment Bill
This bill proposes some major amendments to TTWM Act 1991, namely:
The Mäori Land Court
Future judges of the Mäori Land Court "must not" be appointed unless they are found to be suitable "having regard to the person’s knowledge and experience of te reo Mäori, tikanga Mäori, and the Treaty of Waitangi." Currently, only suitable legal credentials are required (s7/1993).
The land court will be given power to issue injunctions to protect wähi tapu. In addition, the need to protect land that is wähi tapu will be specifically mentioned in the Preamble.
Section 18(1)(i) will be amended to provide that the land court only has jurisdiction to consider whether any person holds Mäori freehold land or General land owned by Mäori land in a fiduciary capacity. It will not be able to consider whether Crown or General land is held in such a capacity. This confirms the decision of the Court of Appeal in AG v Mäori Land Court  1 NZLR 689 (see Mäori LR Dec 1998/Jan 1999 p2) which rejected an attempt to use s18(1)(i) as an alternative means to make claims about past Crown actions.
The land court will be given powers the same as those of the High Court to grant and enforce specific performance of leases of Mäori freehold land.
The power of the land court to advise or make a determination of the appropriate representatives of Mäori for the purpose of any consultation, negotiations etc will include a power to be specific about the matters which the representatives are to be appointed for within the overall consultation, negotiations etc, and to set an expiry date on their appointments.
An owner of Mäori land will be able not only to leave land by will to their own whängai, but also to a whängai of a member of the owners own whänau. (Whängai will be defined as "a person adopted in accordance with tikanga Mäori"). And the court will be given power to make a determination of whether a person is in fact a whängai of the owners whänau, and make provision for them accordingly in appropriate cases.
Changes will be made in the rules for occupation orders, which give exclusive use and occupation of part of any block of Mäori land for a house site (s328):
Such occupation orders will be called "ota whakanoho".
• Holders of such orders will be able to pass them by will in the same manner and subject to the same restrictions as other interests in Mäori land
• Where there is no will, they will pass as if they were an ordinary beneficial interest in Mäori freehold land. However, they will be cancelled as soon as the successor dies.
Land block names
Owners of Mäori freehold land will be able to apply to have the name given to the whole or part of a block amended. Sufficient notice of the proposal must be given in advance to the owners and there must be sufficient support for the change. In the case of land held by a Mäori incorporation, a special resolution in support of the name change will be required.
Changes of status and alienations of land
General land owned by Mäori, as well as General land, will be able to be subject to a change of status order.
The currently complex and scattered requirements for alienations will be pulled together into 3 sections dealing with trusts, Mäori incorporations and assembled owners.
• A first offer to preferred classes of alienees will be required wherever a trust, incorporation or assembled owners seek to sell or gift land, but not in any other case.
• Sales, gifts or long term leases (defined as any lease of more than 42 years, whether for the initial term or including renewals) will require 75% support of owners by shareholding, or if there is no defined shares in the land, by 75% of the physical owners.
• Only sales or gifts will need to be confirmed by the land court.
• If an alienation is a lease, licence or forestry right for over 21 years (including any terms of renewal) or a mortgage, the land court registrar must simply be sent a copy of the alienation and note it in the court records.
In terms of confirmation, the Act currently provides that the land court "shall not" grant confirmation unless certain matters are satisfied, including the first offer to preferred alienees in appropriate cases. The amendment will state that the court "must" grant confirmation if it is satisfied of those matters. In addition, the general discretion of the court to refuse confirmation after considering such matters as the historical importance of the land, its future use, and the principles of ahi ka (long occupation) (s154/1993), will be repealed.
The discretion of the land court to create pütea, whänau, ahu whenua and whenua topu trusts where certain conditions are met will be removed, and the court will be required to create these trusts where certain pre-conditions are met by the application. An applicant will be able to prepare an "ota kaitiaki", a trust order spelling out the terms of the intended trust, and nominating trustees or specifying a process for their appointment. The court must confirm the ota kaitiaki if it fulfils the technical requirements for the creation of the different types of trust. The amendment will also allow the Governor-General to publish model trust orders which applicants will be able to use or adapt.
Kai tiaki trusts, for persons under disability, will not be subject to these changes.
• Trustees will be able to apply to have any interest in land or land which is part of a trust registered either in the name of the trust or in the name of a tipuna (ancestor).
• Where trusts are amalgamated, all trustees of the trusts involved will be required to apply for the amalgamation and there will have to be a sufficient degree of support amongst the beneficiaries of the trusts. Currently, amalgamation may occur simply where the land court finds that it is in the best interests of the beneficiaries (s221/1993).
• Trustees will be appointed either by the trust itself – using the procedure set out in the ota kaitiaki, or by the court. Currently, trustees are appointed by the court, which is required only to take the opinions of beneficiaries into account (s222/1993).
• Conflicts of interest for trustees will be clarified. Trustees may be elected even though they have a contract of employment or other contract with the trust. But they may not vote on any matter directly affecting that contract. This follows similar rules for Mäori incorporations.
• Beneficiaries of trusts will be able to apply directly to the land court for a review of a trust, whereas currently only trustees themselves can apply for review. However, there can be no more than one application for review within any 24 month period.
• The court will continue to have power to add or reduce the number of trustees or replace trustees. There will be a simple process for the court to amend its records if it sights a death certificate of a trustee.
• Where trustees apply to vary a trust the court will only be able to make the variation if there is a sufficient degree of support among the beneficiaries. Under the existing legislation the court itself can initiate a variation at any time and is not specifically required to consider the support of beneficiaries to any change (s244/1993).
Conflicts of interest for members of the committee of management will be clarified in the same manner as for trustees. They may have contracts to the incorporation even while being members of the committee of management, but may not vote on any matter directly affecting them. The court may require an officer of the incorporation to attend the court and explain any breach of these rules.
The requirement that the financial statements of Mäori incorporations must be filed in court for public inspection will be placed clearly on the committee of management (currently no particular person has responsibility to do this – s276/1993).
An annual financial audit will not be required for incorporations whose gross revenue is $25,000 or less, unless the shareholders specifically seek an audit.
The land court will no longer be able to investigate the affairs of an incorporation of its own motion. Only the shareholders will be able to initiate such a review.
Title reconstruction and improvement
Owners of Mäori land will be able to use a partition order to give effect to gifts of land to members of a person’s whänau who fall within the preferred classes of alienees.
Sites for dwellings which the court can set aside under s296/1993, will be known as papanga wharenoho.
Territorial authorities will not be able to require as a condition of a subdivision consent a contribution of any Mäori land which is a wähi tapu. Wähi tapu will be broadly defined as "a place of special significance according to tikanga Mäori" (see new s338 below).
The land court will be given the powers of the High Court to grant access to land which is land locked. These powers will copy provisions in the Property Law Act 1952 and includes power to vest land (including General land) in the owners of land locked land.
Mäori reservations under s338/1993 will be known in future as "wähi rahui".
There will be an additional power to set aside wähi tapu ("a place of special significance according to tikanga Mäori") as a Mäori reservation or wähi rahui.
While the land court will still be able to consider whether wähi rahui should be set aside for the common use and benefit of the people of New Zealand, it may not do this for wähi tapu which are wähi rahui.
Commentary: this bill is the result of consultation over several years. It introduces the most far reaching changes to the TTWM Act since its enactment in 1993. The most significant changes are in the area of land alienations and the role of the land court in considering and approving alienations. The new policy underlying the amendments is that the land court’s discretion to consider and approve or reject many types of alienation is too paternalistic and should be removed, as well as the ability to determine when trusts of Mäori land shall be established and the terms of their establishment. On the other hand, some extra powers of review are included, most notably the ability for beneficiaries of a trust to seek a review of its activities by the land court.
The bill would come into force from the 1 July 2000.
Recent speeches on Mäori issues & policy
Rt Hon. Helen Clark (Prime Minister). Address in Reply debate 8 February 2000
…. I want to comment briefly on some of the significant issues that confront this Government and New Zealand. One glaring issue is the widening gap between Mäori and Pacific peoples and other New Zealanders. It is unacceptable that Mäori and Pacific people in New Zealand should have it as their fate to be poor, to be poorly housed, to be poorly educated, to have poor health and, most likely, to be unemployed. Those are issues that this Government will be focusing on. There will be a Cabinet committee dedicated to these issues because they are very high priorities for Labour and the Alliance.
The Government wants to support the capacity within Mäoridom to take on the challenge of determining the strategies and providing the ways to get long-term solutions in these areas.
…. Finally, on the subject of Waitangi Day, it was the best Waitangi Day that I have ever had. I want to compliment Ngäi Tahu for the very high standard it set on how to mark this very important day in our nation’s history. Ngäi Tahu set high standards of courtesy and hospitality, good humour, and informed debate. I would be happy to be the guest of Ngäi Tahu any time under those circumstances, and to be the guest any time of any iwi that can offer that standard. It was time to move on from the wrangles of Waitangi. It is time to celebrate the nation we are becoming. We have a bicultural foundation mandated by that treaty.
On the Päkehä side of the equation we have become a very multicultural nation indeed. The challenge is to blend the two together to honour the treaty in all its articles and to use Waitangi Day to reflect on the progress we have made and on the nation we can become.
Mita Ririnui (NZ Labour—Waiariki). Address in Reply debate 8 February 2000
…. Following the Land Wars of the 1860s, vast tracts of Mäori land in the Bay of Plenty were confiscated and are now subject to Waitangi Tribunal claims. Due to the dealings of the Mäori Land Court and other Government agencies, certain lands in areas that were not subject to outright confiscation are now also under claim. Excessive amounts of time and energy are currently going into the preparation, presentation, and negotiation of those claims, and there is a growing frustration with the process. The perception is that professionals have captured the process and that its adversarial nature is at odds with Mäori decision-making. Taking into account time put in by iwi researchers—mostly unpaid—lawyers, historians, other experts, and tribunal members and their staff, the all up costs of claims for Waiariki must run into many millions of dollars. The cynics out there delight in observing that treaty-related issues now constitute a major growth industry.
The Treaty of Waitangi is, of course, much larger than the resource claims that it underpins. It is now widely accepted that the signing of the treaty marked the beginning of constitutional government in New Zealand. Under the terms of the treaty, the Crown recognised the existing rights of Mäori and promised to protect them. By this action Mäori were accorded a unique constitutional status. What this means in terms of institutional arrangements is open to question, because by the time that New Zealand’s constitutional, legal, and political arrangements were being established the treaty had become a nullity and Mäori political authority had been effectively eroded. The longest-standing Mäori grievances are not about land, or fisheries, or forests, but about the erosion of mana Mäori motuhake, Mäori autonomy, self-determination, or self-rule. The only real concession made to the Mäori people’s status under the treaty was the institution of separate parliamentary representation in 1867.
The matter of the Mäori people’s constitutional status remains on the agenda and is the subject of growing debate, not just in my electorate, but nationally. It has been on the agenda for the last 160 years and I promise you, Mr Speaker, that it will not go away. The matter needs to be addressed by both Mäori and the Government, and there is an urgent need for an agreed framework to guide the formulation and implementation of policy.
The Government has committed itself to closing the gaps between Mäori and Päkehä.
This commitment poses a huge challenge for the Government, because the socio-economic gaps we are talking about are historical and deeply rooted. They have their origins in the events that occurred between the signing of the treaty and the poverty that overtook Mäori as traditional authority was eroded and their resources were stripped away. The gaps are the fruits of dispossession.
The policy framework I am talking of will be one that Mäori and the Government have settled on through negotiation—one that reflects and gives effect to the constitutional status of Mäori. In the absence of an overarching framework that reflects a shared understanding of the Mäori people’s position, Government departments have been left to their own devices. The result has been a proliferation of treaty frameworks, none of which has been consented to by Mäori, and ad hoc, piecemeal, and inconsistent approaches to Mäori development. We cannot afford to be piecemeal in our approach to closing the gaps.
How should the matter of a common framework be approached? I draw the attention of the House to recommendation 7 in the report of the Royal Commission on the Electoral System in 1986. It reads as follows: "Parliament and Government should enter into consultation and discussion with a wide range of representatives of the Mäori people about the definition and protection of the rights of the Mäori people and the recognition of their constitutional position under the Treaty of Waitangi.’’ I urge the newly formed special Cabinet committee on closing the gaps to initiate forthwith a process for seeking the views of the Mäori people on how the constitutional talks recommended by the commission should proceed.
The resolution of the substantive issues of the treaty are crucial to the effectiveness of the closing the gaps policy.
Capacity-building is the means by which the Government expects to achieve its objective. To me, capacity-building means assisting local communities to grow the infrastructures they need to regain control over their future, without trying to dictate the terms and conditions. Iwi and hapü are tired of being treated as mere extensions of the Government bureaucracy. A clear understanding of, and respect for, the constitutional positions of the respective parties is needed if the capacity-building programme is to succeed.
Willie Jackson (The Alliance). Address in Reply debate 8 February 2000
…. The Government’s fulfilment of its article 3 treaty obligations is also a positive way of addressing disparities. Fulfilling article 3 obligations means, in simple terms, Mäori receiving the same opportunity as Päkehä. I know that some people get a bit tired of this. There may even be the odd member who would scoff at this—I was going to say "the odd party", but I will not go down that lane—and want this whole Mäori thing to just disappear. They probably want us to settle on a time, a date, and an amount, and then we can all be one country again. Unfortunately, it is not that easy.
Article 3 treaty obligations must be properly thought out and carefully addressed, the net result and resolution being a greatly improved relationship between Mäori and Päkehä, and Mäori and the Crown. The Government needs to properly engage with Mäori on a long-term, planned basis. A single parliamentary term could yield some good incremental results, but it is the long-term gains that are important. Planning and partnership are the essential keys for success.
For an outstanding example of this we have only to look at a model set by three tribes: Ngäti Raukawa, Ngäti Toa Rangatira, and Te Atiawa. They have just reached the end of their 25-year planning cycle, which started in 1975. The Whakatupuranga Ruamano model is an inspirational example of Mäori strategic planning by three tribes who are now planning for the next 1,000 years. Imagine planning like that! In 1975, they had very few Mäori speakers. The economy was depressed, and theirs was a very depressed area, but through conscientious commitment to their plan, those tribes are now in a more viable and culturally enhanced position. They are now leading the way in terms of young Mäori speakers.
There is every reason for Mäori, as a collective, to work in a similar fashion with the Government over a long period. Changes in Government did not deter those tribes from realising their goals. The same level of commitment from Mäori to a similarly developed and executed planning blueprint must be encouraged. We are at the beginning of a new millennium, and it is timely that Mäori should prepare themselves well for the future. One of my aims during this term is to assist Mäori to engage in long-term strategic planning for economic and cultural survival.
…. As board chairman of the only Mäori language secondary school in Manukau, south Auckland, I have witnessed first hand the struggle to maintain our language. In a school of this kind, one is able to judge how hard it is to keep the language alive. ….
These problems cannot be resolved by a Mäori language strategy in schools alone. We need a more comprehensive solution that is not a strategy based on having more Mäori dictionaries or a television channel that no one can tune into. A comprehensive strategy that promotes language and culture through schools, and incorporates broadcasting, is what is required. Dual investment in the education and broadcasting sector promises a greater chance of preserving Mäori language and culture. Culture, of course, must be distinguished; otherwise, we risk seeing everything Mäori in just a linguistic context.
My aim is to have a professional Mäori broadcasting system that is well planned, properly resourced, and capable of encompassing all facets of Mäori language and culture. …. The current situation is catastrophic for Mäori. The emphasis in broadcasting has become totally language focused, which effectively excludes the majority of Mäori who cannot speak the language. The answer is for the Government to give Mäori the necessary resources to develop a strategically integrated and complementary Mäori broadcasting system—that is, radio, television, and print—that will reach all Mäori. If the Government achieves this, then we will be going some way to fulfilling the Crown’s article 3 obligations.
I want to finish with something very dear to my heart—the urban-iwi debate. It remains an issue of critical national importance, although it has been the most divisive kaupapa in Mäoridom for the past 10 years.
…. Thousands of Mäori have found their identity through the efforts of urban authorities—their health needs, their financial needs, their every need; also their Mäori language needs. Kohanga reo started in the cities, believe it or not. In many ways our organisations have provided, in a practical sense, a pseudo-tribal infrastructure for urban-based Mäori. We have been fighting for far too long, and the only people who are making money are the lawyers.
Economic and cultural imperatives must steer us towards a better working relationship between tribal and urban leaders, so that the lives of all Mäori are enhanced. I respectfully ask the Prime Minister and the Government to treat this issue with the highest priority.
Hon. Dover Samuels (Minister of Mäori Affairs). Address in Reply debate 10 February 2000
…. We heard the Prime Minister say that our Government is committed to Mäoridom. It is a new millennium, and there is a new pathway for our people. We are committed to closing the gaps. That was highlighted at our first visit to Ratana before the campaign started. We took our policy, He Pütahitanga Hou—a new partnership—to the Mäori people of this country and to Rätana. It was accepted and endorsed by Rätana prior to the election. We went back again after we were successful; we did not run away. We went back to the people who elected us, back to the people who voted for us and supported the Labour Party and the Labour candidates. All my Mäori colleagues went back. It was at Ratana that we launched our campaign, and it was there that we launched our vision.
… It is an acknowledgment of the commitment of this Government that we have set up a special Cabinet committee. The committee is called the Cabinet committee on closing the gaps. It is unprecedented in the history of this House. …. This is the commitment of the Labour Government, and I look forward to the challenge on behalf of our people. I know that the members on this side of the House will achieve the ambitions and the aspirations of our Mäori people in Aotearoa.
John Tamihere (NZ Labour—Hauraki). Maiden Speech. 10 February 2000
…. I want to say a number of things about the gene pool upon which the foundation block of this nation has been built. That gene pool is based on islanders, whether they are British islanders or Pacific Islanders. It matters not whether they are Irish, Scottish, English, or Welsh. It matters not whether they are Ngäpuhi, Ngäi Tahu, or Taranaki whänui. What matters is that we have to get on together, and that we are in a very important moment in time in the evolution of a great nation. It is where the hard work of nation-building is really happening.
I am a product of what could be considered to be destined relationships. When Ngäti Porou could not beat someone, they married them. At the end of the day, whether Mäori like it or not, I am related to them all. I am equally proud of my Päkehä heritage from my mum, who is of Irish, Scottish, and English descent. Two wrongs do not make a right, and in no circumstances will I stand for her mana, and the mana of my ancestors on that side, to be trodden on. There are processes in place and things to do, and we will get on with doing them. We must continue to rejoice in the diversity of our nation, rather than to wallow in its differences. It is right to tolerate those who want to wear a kilt, or a hemp suit, or a moko—it is all OK. No one has the monopoly on our unending story of nationhood.
What I wanted to say is best encapsulated in a Mäori proverb, and it goes like this: "Waiho mä te tangata e mihi." [Leave it for the people to acknowledge.]
…. I have been critical of those outside our communities, but I also have been equally critical of those within our communities. I will not have the few feast in the name of the many. Merely to chant "whänau, hapü, and iwi", and not to deliver on it, is not good enough. New communities are rising in dynamic Mäori Auckland. Te Whänau o Waipareira and Manukau Urban Mäori Authority are as real in the hearts, minds, and souls of urban Mäori as are iwi. This is not a competition. This is a reality.
…. I state quite clearly that the producer boards are another example of how we get locked out. We produce 15 percent of the nation’s meat. At no time have we been woven into the economic matrix. At no time have we been given the right to enter into middle management, and upper management, in order to develop our own professionals through the industry. If the country continues to use us and abuse us, it will lose us. We have a blood right and a constitutional right to progress ourselves. It should not be suppressed.
Hon Parekura Horomia (associate Minister of Education). 15 February 2000 Maiden Speech
…. Over the last 10 years, the devolution model based on the contracting out of services has been used extensively. It is a process in which the terms of contract and compliance procedures are dictated by the purchasing agency often with little or no input from the provider or the larger community that the provider is meant to service.
From a Mäori point of view, it is a process that makes it easy for the purchaser to impose their own definitions of the Mäori world on Mäori communities and to force those communities to comply with those definitions.
A more flexible framework has to be found that acknowledges the importance of the Treaty of Waitangi and establishes a level playing field so that everyone can participate and reap the rewards.
An infrastructure needs to be developed that enables Mäori to participate effectively in the policy making process and to support Mäori communities in their capacity building efforts.
If government departments think they can engage in capacity building without changing current thinking, structures and ways of doing things they are sadly mistaken.
Effective capacity building is going to demand innovation and transformation and Mäori must be a partner in the process not just a service provider.
This infrastructure must also take into account the management of Mäori communities risks alongside those of the Crown.
In trying to make a difference in a community we must move forward in a way that preserves the communities mana, tikanga and it should be done at the communities pace.
Māori Law Review Index December 1999 to November 2000