November 2000 Contents

Waitangi Tribunal

Memorandum re northern South Island claims & Ngäi Tahu

Report re Tangahoe and Pakakohi claim settlements

Other Courts and Tribunals

Legal Aid Review Authority – Mäori groups & civil legal aid

Other

Speeches on the 25th anniversary of the Waitangi Tribunal

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October 2000 Contents

Mäori Land Court & Appellate Court

Two new Mäori Land Court Judges

Waitangi Tribunal

Frivolous and vexatious claims

Other Courts and Tribunals

High Court – when partition is allowed

High Court – use of a Mäori land trust as guarantor of a lease

Environment Court – approval for archaeological site

Environment Court – inter-iwi disagreement over extent of wahi tapu

Environment Court – approval for Mäori run oyster farm

Environment Court – former Mäori land affected by subdivision

Environment Court – strike out of Maori appeal

Parliament

Tutae-Ka-Wetoweto Forest Bill

Other

UN Permanent Forum on Indigenous Issues

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September 2000 Contents

Other Courts and Tribunals

High Court—customary title to foreshore and seabed

High Court—Insolvency Act, Treaty of Waitangi

High Court—Crimes Act, expert evidence of racial characteristics

High Court—Caveat and Mäori land claim on railway lands

High Court—Waikato Tainui, control of 4 incorporated society

Parliament

Mäori Purposes Bill

Bay of Plenty Representation Bill

Pouakani Claims Settlement Bill

Other

Adoption law reform report

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August 2000 Contents

Waitangi Tribunal

Tauranga-Moana inquiry directions

Other Courts and Tribunals

High Court – challenge to a marine reserve sought by a hapü

High Court – finding reps for Mäori land rating purposes

High Court – family protection, Mäori estate, Mäori land

High Court – 2 gigahertz auction, the final challenge

High Court – Chief Judge power to correct errors

ERMA – human genes in cows

Parliament

Tariana Turia & Post Colonial Traumatic Stress Disorder (PCTSD)

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July 2000 Contents

Other Courts and Tribunals

Court of Appeal – radio spectrum sale

High Court – Mäori incorporations & criminal proceedings

High Court – traffic offence, Treaty arguments

High Court – criminal sentencing,  whether cultural reparations sufficient

High Court – fisheries & meaning of iwi - legal aid for appeal to Privy Council

High Court – general challenge to constitutional order

Environment Court – subdivision, disputed kaitiakitanga

Parliament

NZ Public Health and Disability Bill 2000

Revised Treaty settlement policy

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June 2000 Contents

Mäori Land Court & Appellate Court

Mäori Appellate Court—entitlement to shares after killing spouse

Waitangi Tribunal

Gisborne claims direction

Other Courts and Tribunals

Court of Appeal—representation & Orakei Act

High Court—bias in decision making & Maori relationships

High Court—broadcasting spectrum decision

Environment Court—unincorporated bodies

Valuation Tribunal decisions re Mäori land

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May 2000 Contents

Waitangi Tribunal

Expanding the boundaries of Tauranga & Kaipara claims districts

Urgent hearing re Taranaki petroleum resources

Other Courts and Tribunals

Court of Appeal – Ngäti Apa claims within Ngäi Tahu boundaries

Environment Court – consultation with Mäori over subdivision

Other

New instructions re legal aid for Treaty claims

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April 2000 Contents

Waitangi Tribunal

The Mokai School Report

Wai 789. 31 March 2000. JR Morris (presiding), J Baird, A Koopu, R Tahuparae

Mokai Primary School was a small, rural, sole-charge school located in Mokai village between Taupo and Atiamuri. It was a mainstream school that, since 1994, had taught its pupils bilingually. All the pupils enrolled at the school when it closed, and for an unspecified period before that, were Mäori. While the school population had fluctuated considerably, since 1994 it had generally ranged between 10 and 18 students, with a high of 24 students and a low of four. In October 1999, following a decision by the Minister of Education under provisions of the Education Act 1989, the Mokai Primary School was closed. Meanwhile, proceedings had been commenced in the High Court for judicial review of the Minister’s decision and a claim about the closure was also submitted to the Waitangi Tribunal. Following the High Court’s decision dismissing the application for judicial review (see Mäori LR Oct 1999, p8), the Waitangi Tribunal was asked to hear the claim urgently. The tribunal found that the claim should be heard urgently.

The Education Act 1989

Sections 154 and 157 of the Education Act 1989 set out the steps to be taken in the process of closing a school. First, the Minister of Education must be satisfied, after consulting the board of the school, that the school should be closed. At this point, a decision in principle is made to close a school. After a decision in principle is reached, the minister may, by written notice, ask the board if it has any arguments in favour of the school staying open. In the second step, the minister must consider any arguments made by the board within 28 days after it receives written notice asking for them. After that, the school may be closed as from a specified day, which is effected by a notice in the Gazette specifying the day on which the school will close. On that day, the school ceases to be established. The third step involves consulting the boards of all State schools whose rolls might be affected by the school’s closure.

The claimants’ case

The claimants challenged the closure of the school on two main grounds. First, they contended that the minister’s decision to close the school was made without due regard to its effects on Mokai tino rangatiratanga and the taonga of te reo and mätauranga Mäori. They claimed that due consideration would have involved the minister and his advisers giving serious attention to all reasonable means by which education could be delivered to the Mokai children in their own community as opposed to closing the school. The school’s closure diminished Mokai tino rangatiratanga and protection of the taonga that are part of that identity and autonomy.

The claimants presented evidence about the importance of the Mokai Primary School in fostering Mokai tino rangatiratanga. The school was situated on ancestral land and within a predominantly Mäori community. The children who were attending the school had whakapapa links to the seven Mokai hapü and there was a close relationship between the school and the area’s mätua marae, Pakaketaiari. Not only were the school and the marae physically close, the school’s charter referred to the marae as being of "great importance in providing the community with a focal point for its needs" and to the school as a major part of that focal point. Claimant witnesses talked about a "Mokai triangle" to describe the interrelationship of the Mokai marae, village, and school and how "in the community nothing happened at the marae without happening at the school and vice versa". The school taught bilingually and incorporated te reo Mäori and the tikanga, kawa and mätauranga of Mokai in its curriculum. The principal of the school at the time of its closure, Mrs Koopu, of Ngäti Tüwharetoa and Ngäti Whakatere descent, was considered to be "one of their own". She testified that the emphasis on mätauranga and te reo Mäori in the daily life of the school was wholly compatible with the national curriculum and could not be distinguished from the time spent teaching it.

The claimants argued that the closure of the school would: "destroy the connection between our triangle – the school, the marae and the village". One witness commented that "These children were growing up in a unique environment where they actively participated in hui, tangi, and whänau gatherings at the marae where they could learn about their history, pakiwaitara, waiata, tikanga, kawa and whakapapa. They will never learn these things anywhere else."

The claimants submitted that the support and training provided to Mokai school was unsuitable. Further, the Ministry of Education gave insufficient attention to using other options for strengthening the school’s performance. These options included statutory interventions such as the appointment of a commissioner to replace a board of trustees (s 107/1989) or the engagement of specialists to provide a board with appropriate assistance (s 64(A)(1)/1989) and various school-initiated options, such as satellite schooling or school mergers. As the information gatekeeper, the ministry should have told the school community about such options, and "assisted with the implementation of any that were appropriate in all the circumstances".

The claimants’ second main ground for challenging the school’s closure focussed on the adequacy of the ministry’s consultation during the closure process, which began in November 1995 and spanned nearly four years. More particularly, they contended that the ministry’s efforts to engage in an exchange of ideas with the school community about the wider range of issues that the community considered relevant was insufficient and that if consultation had occurred that met the Treaty partnership standard, the Mokai community would have had the opportunity to identify the issues, directions, and possible solutions and outcomes. Claimant counsel submitted that there was no "fully fledged discussion about all alternatives and options in an attempt to find an agreed position in accordance with Treaty principles". Although a number of meetings took place over the closure period no meetings appeared to have specifically considered the topic of closure, and alternatives and options were generated. It appeared that the Crown "simply took on board the views of the Mokai community and Board that they did not want the school to close, consider[ed] that there was bilingual education within the local the area and relay[ed] that on to the Minister."

The claimants accepted that even if proper consultation had occurred, the school might still have closed.

The Crown’s response

Crown counsel focussed on the two main concerns that the Minister of Education had had with the school: the quality of the education being delivered there and the school’s viability. In doing so, the Crown provided information about the roles and responsibilities of the Education Review Office (ERO) and school boards of trustees, both key agents of the Tomorrow Schools policy governing education in New Zealand throughout the 1990s.

ERO is the government department that has responsibility for independently evaluating and reporting on the quality of educational services provided by all registered schools in New Zealand. It is separate from the Ministry of Education, which develops and implements education policy across all State-funded education sectors, although the two bodies share common objectives. ERO’s primary objective is to provide "reliable, accurate, and useful evaluations that support and improve the quality of decisions taken by key education stakeholders". It does so, not through national measures of the educational achievements of primary school pupils, but by reviewing the performance by boards of trustees of their obligations to govern and manage the delivery of education. This is based on the understanding that there is a "correlation between the quality of a school’s governance and management systems and the quality of the educational achievements of its students". ERO conducts accountability reviews every three to four years to evaluate the degree of compliance by school boards with their legal obligations. Where significant concerns arise with a particular school’s performance, ERO conducts a follow-up review, called a discretionary review.

Reviews normally go through three stages:

• Scoping stage—to determine the extent and focus of the review.

• On-site review—involving a team of trained, experienced and tertiary-qualified review officers observing the school in action and consulting key stakeholders in the course of evaluating the school’s performance.

• Review team meeting with the board of trustees—for a final exit meeting to discuss the reviewers’ findings and assessments.

In the post-review stage, the review team’s unconfirmed report is made available to the school board for comment and, once confirmed, the report is made available to parents and the school. Subsequently, the board is asked to advise ERO of the action it has taken or plans to take in response to the reports findings or recommendations. That response is made public.

Elected boards of trustees, which comprise a majority of parent representatives, have overall responsibility for the operation of all schools in New Zealand, regardless of the size or location of the school or of the extent to which a community has within it people with the requisite skills for effective governance. The obligations of a board of trustees derive from each school’s charter and the national education guidelines, which in turn derive from the Education Act 1989.

School charters set out the aims, purpose, and objectives of each school. They are to be prepared after consultation with parents and staff, and after consideration of the views of Mäori communities in the area. All school charters are deemed to include the aims of:

• Conforming with the national educational guidelines;

• Developing policies and practices that reflect New Zealand’s cultural diversity and the unique position of the Mäori culture;

• Taking all reasonable steps to ensure that instruction in tikanga Mäori and te reo Mäori are provided for full-time students whose parents ask for it.

When the ERO conducts a review of a school, it evaluates a board’s compliance with the stated and deemed provisions of the school’s charter.

The national education guidelines, promulgated under s60A Education Act 1989, have 3 components. The national educational goals are broadly stated, overarching objectives for the State education system and include a goal for increased participation and success by Mäori through the advancement of Mäori education initiatives, and including education in Te Reo Mäori, consistent with the principles of the Treaty of Waitangi. The national administrative guidelines are more specific and support learning and assisting schools to meet the national educational goals. They relate to matters such as the provision of a balanced curriculum, employer responsibilities, and documenting the implementation of the national education guidelines. The third component, the national curriculum statements, ensures the implementation of the New Zealand curriculum that applies in schools from year 1 to year 13. Each statement applies to one of seven essential learning areas: language and languages, mathematics, science, technology, social sciences, the arts, and health and physical well-being. Once gazetted, a national education statement is compulsory; until then, schools use existing syllabi. A Crown witness described these statements as "sufficiently broad and flexible to allow for local interpretation and elaboration, and sufficiently specific to provide students, teachers, parents, and communities with clear information about what is to be learned and achieved during the years of schooling".

Crown evidence showed that ERO reviewed the Mokai Primary School seven times between 1991 and June 1998. Four of these were discretionary reviews following up unsatisfactory findings of previous reviews. Although the Crown acknowledged that the number of non-compliances had declined during Mrs Koopu’s term as principal of the school, its considered that the remaining non-compliances were of a significant nature and were "‘critical to the school’s effective delivery of quality education’". It also argued that all past ERO reports needed to be considered " to understand the cumulative impact of the quality of education delivered at Mokai".

Mr Hill, the ERO area manager who had been responsible for the last three reviews of the school, summarised the problems that remained at the time of the final review in 1998:

• Little formally-adopted policy to guide management in following the board’s direction;

• A 1997 objective of the school development plan to establish board roles and responsibilities had not been implemented;

• Basic material such as the charter, code of conduct, and handouts on the national administration guidelines had not been given to trustees;

• Individual documents for administration were developed in isolation, often with little relationship to other documents.

According to further Crown evidence about the quality of education at Mokai:

• Frequent changes in board members and principals over the years meant that the board was always needing to start again, leading to a lack of compliance with key governance matters.

• All ERO reports between 1991 and 1998 recorded curriculum difficulties to varying degrees, including a lack of planning of appropriate objectives and a lack of assessment of student progress.

• There was inadequate or incomplete governance and management of the school by the board of trustees, including a lack of understanding of the board’s roles and responsibilities and a failure to demonstrate familiarity with the national education guidelines and their significance in the continuing operation and administration of the school.

While Mr Hill acknowledged the Mokai Primary School’s board of trustees’ commitment to the school and community vision, he did not concede that in its last two years the school faced more pressure than other schools. There were many examples of comparable situations where schools had successfully established systems to meet their legal obligations.

The second major concern of the Minister of Education in deciding to close the school had been the issue of the school’s viability, defined as a community’s ability over time to "actually sustain quality of education". While the Ministry of Education no longer has a minimum roll number below which a school would automatically close, although size and the sustainability of a school’s roll were taken into account. The Crown considered the roll at Mokai Primary School to be "generally low". Although it acknowledged that whakapapa links influenced the size of a catchment area and that those links extended beyond the immediate geographical area surrounding the school, its evidence was that most enrolments came from a school’s immediate area and that there were very few pre-schoolers in Mokai Primary School’s catchment area.

The Crown also presented evidence about the cost-effectiveness of small schools in general and Mokai Primary School, in particular. For very small schools, which are the most expensive per student, the government had to balance "its interest in ensuring access to schooling against the educational and financial viability of the school and the need to obtain value for money in the use of taxpayer funding."

For Mokai Primary School, statistics showed that the staffing and operational funding was $6508 per pupil in 1997 (for 15 students) and $6422 in 1998 (for 18 students). The ministry estimated that in 1999 the school’s per pupil costs, based on a roll of eight students, was over $14,000 per pupil. The average primary school received 3,250 per pupil.

In keeping with the Tomorrow’s Schools’ governance model, school boards have a substantial measure of independence to self-manage their affairs. Accordingly, the ministry preference was to support schools through the funding of a number of agencies that give support to schools rather than by imposing intervention measures. Nevertheless, the Crown argued that the board of trustees and principal of Mokai Primary School had received assistance from the Ministry of Education and ministry-funded service providers "that was extensive, appropriate, and sufficient to enable compliance with all the board’s legal responsibilities", including training in governance areas and operational areas.

The Crown’s position was that, taking account of all the circumstances, the closure of Mokai Primary School was the most appropriate course of action to take. The circumstances were not appropriate for the appointment of a commissioner or other alternatives to closure. Crown witnesses presented details of meetings and discussions about closure with the Mokai Primary School board of trustees and community that had occurred from late 1993 to July 1998. These began with information requests about closure by the then principal, who was concerned about low enrolments, and included a meeting at the school by ministry officials in March 1994 to discuss closure and further meetings in 1995. After a meeting in October 1995, the Minister of Education had decided to consider the closure of the school. A further meeting occurred in November 1995 to present a letter that outlined the minister’s decision. The letter concluded that the ministry’s Hamilton office had been directed to consult with the school’s board. Mr Kitto, the Ministry of Education’s liaison officer with responsibility for the considerations relating to the closure of the school, stated that most attempts to consult with the board were unsuccessful because "the school board did not prioritise such discussions". Consequently, after November 1995 and before the minister’s decision in principle to close the school was reached in July 1998, "there were no meetings called by the Ministry specifically to discuss the issue of school closure." Where communications did occur with the school about closure, they were part of discussions that primarily involved other matters about the ongoing operation of the school and were not always well documented.

Further communication took place after the minister had made his decision in principle to close the school. In July 1998, the Mokai school board was asked, as required by s154 Education Act 1989, to provide any argument as to why the school should remain open. The board presented its response in writing and in person. Noting the board’s arguments that there had been improvements at the school, the minister then asked for clarification and, in March 1999, ministry staff attended a hui at the school to receive the board’s reply. In the same month, the ministry briefed the minister, including information about the nearest alternative school and the nearest bilingual provider for each pupil at Mokai Primary School.

Crown counsel submitted that it was "inevitable" that in a situation where a community did not want a school to close, "the school, staff, board and community would be unwilling to engage in a process which could have an outcome which they were not prepared to consider, namely closure". However, particularly in light of the board’s unwillingness to discuss the matter, the ministry had done as much as could be reasonably done to consult over the closure of the school and the consultation undertaken by the ministry under s154 satisfied Treaty requirements for consultation developed by the Court of Appeal.

Treaty arguments of the parties

The claimants asserted that the Crown’s right of governance is qualified by the responsibilities that flow from the Treaty partnership and that, in this particular case, the Crown had not taken proper account of those responsibilities in its dealings with the Mokai school community. By invoking this Treaty principle, the claimants asserted that the Mokai school community was a Mäori community exercising tino rangatiratanga (or, as the claimants put it, Mokai identity and autonomy, or Mokaitanga) and could therefore expect the Crown, exercising kawanatanga, to take reasonable steps to respect and protect its interests. Relying on comments from the Lands case [1987] 1 NZLR 641, the claimants contended that the Treaty principle of partnership required "the Treaty partners to act reasonably and in good faith towards one another" and that this principle provided the standard by which the ministry’s consultation regarding the closure of Mokai school was to be tested.

The claimants argued that local Mokai identity and autonomy was inextricably linked with te reo and mätauranga Mäori. Moreover, Mokai school played a vital role in preserving and strengthening the Mokai identity "including all its various components in particular its tikanga, mätauranga and reo particular to this area". Therefore, in closing the school, the Crown breached Treaty principles by failing to protect actively the taonga of te reo and mätauranga Mäori and it adopted a narrow approach to the issue by failing to consider the interdependence between local Mäori identity and autonomy and Mäori language and knowledge systems.

The Crown submitted that its policies and conduct under the Education Act 1989 were a legitimate exercise of kawanatanga, both generally and specifically in relation to Mokai school. Also relying on theLands case, Crown counsel submitted that the Crown’s right to govern in the interests of all New Zealanders "cannot be made subject to unreasonable restrictions as a result of the interpretation of other Treaty principles". Although she acknowledged that claimant counsel had expressly denied that the claimants were asserting "an absolute right for Mäori to have an education at the place of their choice", Crown counsel argued that the claimants were asserting that Article 2 supported an argument that a community such as that at Mokai had an "absolute right" (by virtue of the Treaty and not for any educational or social policy reasons) to receive a State education which accommodated that community’s interests in the taonga of the Mäori language and traditional knowledge and customs, disregarding all other considerations. It was also said that the claimants were asserting that such a right extended to delivery of that education "in the context of the particular identity and place of that community." The Crown rejected that approach.

The Crown did not acknowledge that the Treaty principle of partnership was directly relevant to the claim but it submitted that the consultation required by the s154 school closure process depended on the same features as the partnership principle requires. Referring to Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (see Mäori LR, June 1997, p6), the Crown maintained that the principles of the Treaty coloured the interpretation of the Education Act 1989, as it colours the interpretation of "all Acts dealing with the status, future and control of children".

In respect of Mäori language and culture, the Crown accepted that these were taonga and that the State education system had a role in carrying out its duty actively to protect them. The Crown fulfilled its duty "by the provision of a statutory framework under which the taonga may be protected and by the existing and developing strategies by which it supports communities’ initiatives to implement the protection in ways that suit them".

While the claimants did not place any reliance on Article 3 of the Treaty, the Crown submitted that, "in modern-day terms, Article 3 guarantees Mäori ‘equality of access to the benefits, rights and privileges of all citizens’" and that State primary education is one such right.

Tribunal findings

The tribunal noted that the claimants and the Crown had "fundamental differences in their understandings of the Treaty principles" and those arose from "quite separate understandings" of the relevance of article 2 of the Treaty of Waitangi to the claim. As a result, the parties "‘talked past each other’ during the hearing to a significant degree". The tribunal considered a wide range of statements by the courts and the Waitangi Tribunal about Treaty principles and, in particular, drew assistance from the Waitangi Tribunal report on the Te Whänau o Waipareira claim about social and welfare services, (see Mäori LR, July 1998, p1) which considered the "nature of tino rangatiratanga and how the relationship between the Crown and Mäori is to be approached in modern times".

In terms of the Treaty principle of kawanatanga, the tribunal found that it could not be understood in isolation from other principles that require the Crown to exercise quality kawanatanga or good governance, "where the meaning of ‘quality’ and ‘good’ is determined by the consistency of the Crown’s governance with the entirety of the Treaty’s principles.

Drawing on the Te Whänau o Waipareira Report, the tribunal found that the "essence of tino rangatiratanga is found in the reciprocal relationships that exist, between a group’s leaders and supporters, for the purpose of maximising the group’s interests". The relationships and values of tino rangatiratanga were evident in the Mokai community and the "education of Mäori children into their own community is a responsibility of tino rangatiratanga, properly understood". The essence of the principle of tino rangatiratanga was that "Mäori communities are entitled to identify themselves, and to manage their affairs, in accordance with Mäori custom and values". The principle applied to the Mokai community and was relevant to its interactions with the Crown over the State education of Mokai children. The tribunal considered that no other view was possible in light of the fact that "those children are the recipients of State education and, as is acknowledged by the Crown, State education has an important role to play in the fulfilment of the Crown’s duty actively to protect the taonga of Mäori language and knowledge."

The tribunal rejected the Crown’s submission that State education is purely an article 3, equal rights matter but noted that the Crown had not given that argument heavy emphasis.

In relation to the principle of partnership, the tribunal again closely followed the approach taken in the Te Whänau o Waipareira Report and reiterated the view that the Treaty partnership should not be seen in a narrow, contractual way as if to describe a relationship between the Crown and particular classes of Mäori. Rather, the "primary purpose of the Treaty concept is to describe the way in which Mäori and the Crown should relate to each other." As part of that relating to each other, the Crown is to protect all things important to Mäori, including tino rangatiratanga. In this way, the principles of tino rangatiratanga and active protection of taonga were the foundation of the partnership between the Crown and Mäori and always guided the way in which the Crown exercised its kawanatanga.

In terms of the consultation that occurred in the school closure process, the tribunal’s focus was not on the legality of the process but on the "standards for consultation that proceed from the Treaty principle of partnership and whether they were met in all the circumstances". In assessing the consultation, the starting point was the fact the Crown did not acknowledge the Mokai community’s tino rangatiratanga. This indicated that the Crown "misunderstood the nature of the community with which it was dealing and so the context within which Mokai Primary School operated".

The opposition of the Mokai community to the school’s closure "should have rung ‘warning bells’ for the ministry, alerting it to the need to take special care to approach the consultation process in a well-structured manner, perhaps even including steps that would not be needed in a school-initiated closure process." The evidence showed that this did not happen. The ministry had not sufficiently followed the advice contained in its own publication, Tukutuku Korero, which contained guidelines for schools initiating consultation with a Mäori community.

In analysing the detail of the consultation process, the tribunal adopted features of consultation that were identified in West Coast United Council v Prebble (1988) 12 NZTPA 399 where it was found that "Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done."

The tribunal concluded that the consultation had failed to meet the standards required by the Treaty principle of partnership. The s154 consultation had begun badly with the meeting in November 1995 to present the letter outlining the minister’s decision to consider closing the school. That, and surrounding events, could well have led the school community to believe that closure was the only possibility in the minister’s mind, that it was to happen quickly and that the number of enrolments was the main reason for it. The consultation did not include invitations to discuss all issues about the school’s future, nor an undertaking that the ministry would provide information about all possible alternatives.

A stand off between the ministry and the school community was almost inevitable, but this was largely because of the way in which the consultation process had begun. The ministry had made "no considered attempts" to retrieve the situation, which it could have done, for example, by bringing in other officials "to try to generate discussions at a more constructive level". What occurred was not a lengthy consultation process but a "lengthy process of uncertainty about each other’s views and their implications".

On the evidence before it, the tribunal held that, before the decision to close Mokai school was made in June 1999, the ministry had not properly sought, discussed and understood the school community’s views on the issues raised by the prospect of closure. Accordingly, the requirement that the views of others be considered before a decision is made could not be satisfied.

As a result of the deficient consultation in the school closure process, Mokai Primary School was closed without the Crown being aware of the Mokai community’s views on how the principles of the Treaty relate to the school place in the community. The school had been closed without regard to the exercise of Mokai tino rangatiratanga, and its exercise in relation to the taonga of te reo and mätauranga Mäori, which was "necessarily inconsistent with the requirements of ‘quality kawanatanga’ or ‘good governance’".

As a result of these Treaty breaches, the claimants and their children had suffered prejudice in that the children of Mokai could no longer be educated "in their own community where they are most likely to develop the confidence to manage their lives both within and outside it". Mokai tino rangatiratanga had, consequently, been diminished.

Recommendations

In considering the relief that it should recommend, the tribunal concluded that no option except the reopening of Mokai Primary School could remedy the prejudice suffered. Although the tribunal recognised that the governance and management problems facing the school when it closed would not be solved simply by reopening the school, nevertheless: "with the community’s commitment to the school, and with the Ministry’s commitment to supporting it, ... within a reasonable period of time, the school can be made to work to a standard that satisfies the expectations of all concerned."

Accordingly, the tribunal recommended that Mokai Primary School be ‘reopened’ (established again) as quickly as possible, ideally, to resume teaching during the second term of the school year 2000, subject only to:

• The establishment of a board of trustees; and

• The board’s appointment of a Mäori teaching principal who has the confidence of the school community.

This main recommendation was accompanied by a number of other recommendations, including recommendations that the school be provided with additional support and assistance to meet its governance and other requirements. At a more general level, the tribunal also recommended that:

• The minister initiate a review of the policies and processes involved in determining when and what statutory interventions may be appropriate and the processes to be followed in implementing each of the interventions; and

• The minister, through the ministry and in consultation with Mäori communities, explore additional strategies to increase the ministry’s and schools’ responsiveness to the educational needs of Mäori children.

The tribunal also commented that its findings were not "a challenge to the basic structure and nature of the education system" but signalled that a "fresh focus on how the various elements of the system may be more effectively tailored to respond to the interests of Mäori communities that are recognised by the principles of the Treaty of Waitangi". The most important elements that warranted attention were:

• How the Crown supports schools in difficulty, and when and how it should intervene, rather than leaving schools to rely on the school’s use of support mechanisms;

• Adjusting prevailing definitions and measures of mainstream education so that they are better informed by the knowledge and experiences of Mäori communities.

 

Memorandum re hearing of Ngäti Pikiao claims

Wai 550. 18 April 2000. Durie J (Chairperson)

In this memorandum, the tribunal considered a request from Ngäti Pikiao to have their claims heard as soon as possible. The tribunal had already heard claims brought by Ngäti Awa, Tüwharetoa ki Kawerau and Ngäti Makino, a hapü of Ngäti Pikiao concerning the Rotoehu forest in an area generally referred to as Otamarakau. Other hapü of Ngäti Pikiao considered that they had an interest in the forest. Accordingly, they sought parity in terms of hearing time to present their case. The tribunal considered that two areas of lands were involved.

Central Lakes lands

These lands were all Ngäti Pikiao lands outside Otamarakau/Rotoehu forest lands. Historical reports had been prepared on these lands. They showed that Ngäti Pikiao retained 90% of this land to the present day. However, the claimants alleged that none of this land was held on behalf of the Ngäti Pikiao generally or could be utilised for general tribal purposes. It was claimed that individualisation of title had occurred without iwi approval and had deprived the tribe of the land, since the duty of land managers was to individual beneficiaries and not the tribe. Also, the Native Land Court was given (and continued to have as the Mäori Land Court) inordinate control over land and land management arrangements. The tribunal noted that historical reports had already been prepared which examined particular blocks. There might however, be no need to go beyond those historical reports if the general complaint about loss of tribal control were made out, as the remedy would be in general rather than specific compensation. Issues relevant to the general claim of loss of tribal control appeared to be:

• Control of individualised land by statutory land council and boards, rather than by the hapü of Ngäti Pikiao, and whether any pressure was applied to have lands placed under these arrangements.

• Sales by meetings of owners through trustees might illustrate the consequences of individualisation. It would also be interesting to see if the best quality lands were sold in this way and poorer quality lands retained.

• Individualisation may have led to small groups cutting their interests out from the tribe as a whole, when those matters had traditionally been matters for tribal planning and approval.

• Consolidations of lands and the combination of several hapü in one block may have diminished the voice of minority hapü.

• Whether Ngäti Pikiao lands or money from land were used in development schemes to assist other tribal groups.

The tribunal thought that it would be possible to determine the extent to which the present system continues to have impact by considering a sample of block titles to assess fragmentation, including looking at numbers of owners, value of shares, number of missing owners, and the extent to which owners remain geographically scattered.

The basic claim appeared to be that: "the Treaty guaranteed Mäori the possession and control of their lands according to their own preferred system, that the Crown imposed a system that did not meet their preferred system for tribal control and that they were and remain prejudiced as a result."

The tribunal directed that appropriate research be prepared for a 1 week hearing.

Otamarakau lands (including Rotoehu forest)

Ngäti Pikiao agreed that historical research to date on the forest lands was sufficient for tribunal purposes, and that the main issue was the extent of Ngäti Pikiao customary interests in the forest apart from that of the Ngäti Makino hapü of Ngäti Pikiao.

The tribunal determined that it should not proceed with a hearing of this aspect of the Ngäti Pikiao claim. If the general claims to the Central Lakes lands were made out, providing an alternative basis for Ngäti Pikiao's Treaty claims, then a hearing on the forest lands "which is likely to lead to strong tribal confrontation", might become unnecessary.

 

Other courts & tribunals

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

CP395/93. High Court Wellington. 7 March 2000. Anderson, Paterson JJ

In the fisheries settlement of September 1992, the Treaty of Waitangi Fisheries Commission took ownership of 50% of Sealord Group Ltd, with Brierleys NZ Holdings Ltd owning the other half. The fisheries commission was given a first right to purchase the Brierleys interest should they wish to sell. Brierleys had recently indicated that they wished to sell their 50% share and were seeking bids.

Mr Perenara and others were concerned that the Brierleys share might not be purchased by the commission, and sought orders 1) effectively preventing Brierleys from giving, or the fisheries commission from receiving or acting on, any notice that Brierleys intended to sell its interests, and 2) any other relief which the court might think fit to give.

Held: there was no rule of law which could be applied to prevent Brierleys issuing notice of intended sale to the fisheries commission. And if the commission did not receive the notice, then it would have no ability to exercise its pre-emptive right.

As to any other relief which might be given, there was no equitable relief which the court could give, since judicial review did not involve the equitable jurisdiction of the High Court. Nevertheless, "in a case of such public significance as the Mäori Fisheries litigation, the historical origins of which involve issues of equity in the broadest sense of that word, and concepts of trusts on a public scale, a Court might have resource to a full armoury of jurisprudential principle to do justice."

However, in this case there had been no wrong in respect of which relief might be given. The fisheries commission had provided an affidavit assuring the court that it had not yet taken any decision on the sale of the Brierleys interest and, should it receive a notice of sale, and the right of first purchase become available in the near future, it would take all relevant matters into consideration. These would include the offer price, and the commercial prudence of a possible purchase in terms of:

• The ability of the fisheries commission to finance the acquisition;

• The best way for the fisheries commission to ensure its investment in Sealords grows in value;

• Commercial risks associated with further investments in Sealords;

• The statutory duty of the commission to represent the interests of Mäori generally;

• Other matters.

In addition, the court thought that it was questionable whether a decision of the fisheries commission over the sale of the Brierleys interest could be subject to judicial review as the exercise of a statutory power of decision, or, if it could be reviewed, whether the courts should review it given that the decision was one involving complex considerations of policy and commercial judgment.

 

Te Hau v Te Whänau O Rongomaiwahine Trust v Treaty of Waitangi Fisheries Commission and Ngäti Kahungunu Iwi Inc

CP 12/00. 3 April 2000. High Court Wellington. Doogue J

The Treaty of Waitangi Fisheries Commission made a determination that Te Whänau O Rongomaiwahine represented a hapü of Ngäti Kahungunu and not an iwi in its own right. The plaintiffs sought:

• To control how the commission leased rock lobster quota in the Fisheries Management Area CRA 3 for the 2000/2001 year;

• Orders requiring Ngäti Kahungunu to hold on trust the whole proceeds of the lease of wetfish quota leased by it in the 1999/2000 fishing year.

The essential issue was whether it was necessary to make the orders to protect the plaintiffs’ position on behalf of Rongomaiwahine.

When the fisheries commission announced its intention to lease the quota for the 2000/2001 year, it advised that it would lease to iwi representative organisations, and do all it could to assist iwi in resolving disputes connected with the lease round. Hapu were not mentioned. The plaintiffs argued that this necessarily prejudiced them in the lease round. The fisheries commission argued that it had acknowledged that there was a dispute between Ngäti Kahungunu and Te Rongomaiwahine and that the latter claimed iwi status, and that there remained a possibility that the disputed quota would be held in trust pending a full hearing of the matter before the courts, as had happened in other years.

Held: the first application sought (concerning rock lobster) was premature in that the fisheries commission had recognised that Rongomaiwahine claimed to be an iwi and that this had yet to be heard in a full hearing. In the meantime, the commission could proceed in its duty to determine that quota should be made available, and if it was made available to Ngäti Kahungunu then that could be done in a way which protected the position of Rongomaiwahine. If Ngäti Kahungunu should take proceedings to avoid this result, then interim relief might be considered for Te Rongomaiwahine, but for now the application was premature.

With regard to the wetfish quota, Ngäti Kahungunu had offered to hold 50% of the net proceeds of the lease round on trust, but the plaintiffs sought that 100% be held on trust. However, there was no justification for this position on the papers before the court and the application should be declined.

The court made comment on other matters, including the fact that, in order to have the court make interim orders of this type, an undertaking as to damages was required (see for example Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission CA224/93) and it had not been given.

If the fisheries commission should, after the disputes procedure had been gone through, act to allocate quota in a way which did not protect the Rongomaiwahine position, then Rongomaiwahine might apply for an order for protection of their interests.

The plaintiffs had persisted in pursuing interim orders through court proceedings when matters might have been resolved short of a hearing, and despite the conciliatory position taken by the fisheries commission and Ngäti Kahungunu to the complaints of Rongomaiwahine. Consequently costs beyond the normal scale would apply ($3250 per defendant plus disbursements).

 

Ryder & Others and Te Kotahitanga O Te Arawa Waaka Trust Board & Others v Treaty of Waitangi Fisheries Commission

CP171/97. 6 April 2000. High Court Wellington. Anderson, Paterson JJ

These proceedings concerned the legal status and powers of fisheries commissioners appointed under ss29 & 31 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, who had continued in office beyond their appointed times and the effect (if any) on the report of those commissioners on the allocation of pre-settlement fishing quota and other assets to iwi which was about to be sent to the Minister of Fisheries by the Treaty of Waitangi Fisheries Commission.

The fisheries commissioners were appointed by the Governor-General on the advice of the Minister of Mäori Affairs. The warrants of the commissioners expired in June 1996. The allegation was that the minister failed to advise the Governor-General on fresh appointments. It was also alleged that this affected the legality of the report on the allocation of quota to iwi which was about to be forwarded by the commission to the Minister of Fisheries (who may recommend adjustments before the allocation scheme is implemented). It was argued that the report itself was invalid, and that the commission had no power to present it to the Minister of Fisheries for his consideration.

Thirteen commissioners had originally been appointed in May 1993, and all warrants expired in June 1996. In mid 1996 the Minister of Mäori Affairs had undertaken consultation and presented to the Cabinet Appointments and Honours Committee a proposal for the reappointment of most of the existing commissioners, with three new appointments.

Four of the negotiators of the 1992 fisheries settlement challenged the proposal in the High Court, alleging insufficient consultation. Since there was provision in the legislation for existing appointments to continue pending reappointment or replacement (s31), the Minister of Mäori Affairs and Cabinet decided to leave the matter to the incoming government. The High Court proceedings were dismissed by agreement on this basis.

In early 1997 the new Minister of Mäori Affairs (Hon Tau Henare) considered the issue of appointments, at the same time as the Privy Council determined that the High Court should reconsider a judgment that allocation should be only to iwi – not including non-traditional groups. There was a meeting of most groups involved in the issue, and an agreement to desist from litigation for the time being and work towards allocation (the current plaintiffs were not however parties to that agreement). The minister was advised by officials that that agreement provided a basis for the current commissioners continuing in office until June 1997 when they would report on a scheme of allocation. In the meantime, it was recommended that consultation about new appointments should be undertaken.

Officials undertook consultation about appointments and reported to the minister in May 1997. In April 1997, one of the parties to the fisheries litigation formally raised the issue of the validity of the continuing appointments of the commissioners, and was soon joined by others. The fisheries commission issued a full consultation document on its proposals for a scheme for the allocation of quota in July 1997, and consultation on that document commenced in September and October 1997.

Also in July, the minister was given a short list of nominees for the fisheries commission. A Cabinet paper was prepared in September 1997. However, in that same month the minister consulted with fellow ministers and concluded that appointments should wait until the fisheries commission had further consulted on its allocation proposal. The minister maintained this stance until November 1998 when the fisheries commission released its allocation proposal in a near final form for consultation. In this period the preliminary issue of whether allocation should be only to traditional iwi had been heard, judgment delivered, and further appeals lodged.

In March 1999 the fisheries commission released a report on its preferred approach to allocation which it intended to report to the Minister of Fisheries. A High Court order was obtained preventing the fisheries commission from reporting to that minister.

There was then talk of a possible out of court settlement, and the Minister of Mäori Affairs felt that it would be disruptive to proceed with new appointments at that stage. However, in July 1999, nominations for new commissioners were advertised. A Cabinet paper recommending new appointments was prepared, but it was decided to once again wait until after the general election. It was again noted that there was provision in the legislation for existing appointments to continue pending reappointment or replacement (s31).

As these proceedings were commenced, a full consultative process on appointments was underway. It was hoped to have fresh appointments in April 2000.

Held: this was not a case of total inactivity by the Minister of Mäori Affairs. Court proceedings by the fisheries negotiators, the conventions applying to caretaker governments and the minister’s decision not to hinder the contentious issue of allocation had delayed the process.

Sections 29-31 provided that appointments should not exceed 4 years, but commissioners could be reappointed without limit, and they could continue to hold office on the expiry of their term. The legislation did not provide that the commissioners could be dismissed (expect for misconduct etc) until the Governor –General had been advised on a replacement.

It was accepted by the Crown that a decision of the Minister of Mäori Affairs not to recommend reappointments could be challenged in some circumstances. But it was contended that the ability to challenge this power of recommendation was very limited, and the minister could only be challenged if he was acting in bad faith or attempting to thwart the purposes of the Act. In this case he had acted in good faith.

The plaintiffs argued that there was a clear requirement to consult within a reasonable time, which had passed, and no discretion beyond that was involved.

The court found that the appointments process must be considered against the background legislation which emphasises consultation and accountability to Mäori by the fisheries commission. The fisheries commissioners had important functions to facilitate the entry of Mäori into fishing and to manage the pre and post settlement assets and the joint venture with Brierley Investments Ltd. The requirement of consultation with Mäori over appointments to the commission recognised these important functions.

The Act did not authorise re-appointments without effective consultation. The ability for commissioners to remain in office pending new appointments or reappointment was a transitional provision only and could not replace the requirement for full consultation and recommendations on appointments. The legislation required that consultation must be followed by advice to the Governor-General and appointments or reappointments would follow from that. The minister could not, after consultation, himself decide that the present commission should continue and leave it at that.

The duty of consultation on the minister arose no later than the expiry of any commissioner’s term. Reasonable time must be allowed for the consultation, but the courts could review a delay which was "manifestly excessive."

In this case the court would not comment on delays arising from the Cabinet convention not to make fresh appointments immediately prior to a general election.

However, with regard to the other delays, the minister was not legally justified in deferring consultation on new appointments in the hope that the fisheries disputes would be settled. Mäori were entitled to be consulted within the last 4 years about the appointments of the persons who would be responsible for the fisheries settlement. Accountability was thwarted if a manifestly excessive time passed between the expiry of appointments and consultation and advice to the Governor-General on reappointments . Probably since September 1997 and certainly by mid 1998, two years after the term of all members had expired, a manifestly excessive period had passed, and the minister must be considered to be in breach of the duty implied by the legislation. Mäori continued to be "effectively disenfranchised" in respect of the composition of the commission.

However, the court exercised its discretion and witheld relief because a process of reappointments was already underway.

As for the contention that, pending fresh appointments or reappointments, the existing commissioners had no right to complete their report on allocation and submit it to the Minister of Fisheries for his consideration. There was nothing in the Act to suggest that the powers of the commissioners, or any part of them, were in any way limited while reappointments were pending. They continued to have full power to act, and indeed was obliged to act, nothwithstanding the breach of duty by the Minister of Maori Affairs. Nevertheless, with regard to the report on allocation of quota:

"How the Minister of Fisheries should view any Report, including the weight to be attached to it in view of the remoteness of consultation concerning the appointment of the Commissioners, is for the Minister. No doubt the fact that none of the present members has been confirmed by consultation, advice by the Minister of Mäori Affairs and vice-regal appointment, for nearly eight years would be given appropriate consideration."


March 2000 Contents

Mäori Land Court & Appellate Court

Definition of "whängai"

Compulsory lease, duties of Mäori Trustee

Waitangi Tribunal

Procedure for the Gisborne inquiry

Other Courts and Tribunals

High Court – jurisdiction of the courts over Mäori

High Court – forestry leases, provision for Mäori interests

Parliament

Ministry of Justice Post Election Briefing for Incoming Ministers

read more


February 2000 Contents

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

Whaanga and Mahia Township Section 90 and 91

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.

Incorrect whakapapa

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 [1920] 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:

Kaitiakitanga

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.

Consultation

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.

Other grounds

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".

 

Parliament

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

No 336-1

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 [1999] 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.

Whängai

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.

Occupation orders

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.

Land trusts

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.

In addition:

• 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).

Mäori incorporations

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.

Reserves

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.


Status of land and jurisdiction – challenge to claim in adverse possession – Whaanga

Whaanga - Mahia Township Sections 90 and 91

Māori Appellate Court (2000) 34 Tairāwhiti Appellate MB 12 (34 APGS 12)

24 February 2000

Appeal against a decision by the Māori Land Court changing the status of land from General land to Māori freehold land and making determinations as to succession to the interests of the late Ihaka Whaanga. Appeal in respect of the status issue dismissed. There was no breach of natural justice or failure to consider certain submissions. Succession Order set aside due to jurisdictional errors of the lower Court.

Download  Whaanga - Mahia Township Sections 90 and 91 (2000) 34 Tairāwhiti Appellate MB 12 (34 APGS 12) here (1.87 MB PDF).

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December-January 2000 Contents

Comment

Agreements between Māori and Local Authorities by Grant Hewison, Strategic Manager, Strategic Management/Treaty of Waitangi Team Manukau City Council

Māori Appellate Court and Māori Land Court

Chief Judge's powers – appeal based on misunderstanding – Mann - Pakohu 2B2AJ  (2000) 4 Taitokerau Appellate MB 234

Lease by assembled owners – disputed resolution - Re Wilson & Brown & Arapaoanui 3C (1999) 146 Gisborne MB 72

Performance of trust, voting by beneficiaries - Proprietors of Mangakino Township Inc v Hemi & Pouakani No 2 (1999) 73 Taupo MB 30

Other Courts and Tribunals

Court of Appeal – Māori land & RMA 1991

Environment Court - cultural objections to a landfill

Environment Court – effect of Ngāi Tahu Settlement Act

Other

Taupo tributaries revesting

Waitangi and Indigenous Rights. Revolution, Law and Legitimation

Adoption law reform

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Chief Judge’s powers – appeal based on misunderstanding – Mann

Mann - Pakohu 2B2AJ

Māori Appellate Court (2000) 4 Taitokerau Appellate MB 234 (4 APWH 234)

11 January 2000

Appeal against a decision of the Chief Judge made under s 45 of Te Ture Whenua Māori Act 1993 dismissed. Appellants wrongly believed that the Chief Judge's decision to cancel a succession order reflected poorly on their ancestor. Other matters raised were not within the Appellate Court's jurisdiction.

Download Mann - Pakohu 2B2AJ here (5.03 MB PDF). read more