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

 

Agreements Between Māori and Local Authorities

Grant Hewison, Strategic Manager, Strategic Management/Treaty of Waitangi Team Manukau City Council

Local Authorities throughout New Zealand have for some time being considering how best to formalise relationships between themselves and local Mäori. One mechanism that has been adopted widely and which appears attractive is the use of written memoranda or agreements. In order to more fully understand the use of these memoranda or agreements, the present author has collected most of the existing instruments between Mäori and local authorities throughout New Zealand and undertaken a comparative analysis of the instruments.

Twenty five instruments were analysed. Some local authorities indicated that, for various reasons, they did not have these kinds of instruments, while others indicated that they were in the process of developing them. A number of published reports concerning the relationship between local authorities and Mäori were also examined to provide further guidance in undertaking the analysis of the instruments.

A brief summary of the comparative analysis of the instruments examined follows:

• The general nature of the instruments - Most of the instruments follow an overall pattern, although there are also notable differences in the detail between the instruments. In several instances it appears that one instrument has been used as a model for others. The pattern typically followed involves the instrument being divided into two separate parts. The first part usually provides an outline of the broad principles that will guide the overall relationship or "set the scene" between the parties followed by a second detailing the more operational aspects of the relationship, including matters such as representation, consultation and resourcing. The instruments are typically drafted along the lines of an embellished ‘contract’.

• The legal significance of the instruments - It appears that most of the instruments analyzed were not considered legally binding.

• Language - Almost all of the instruments examined have been produced only in English although one was produced in both English and Mäori.

• Title - There are a range of different phrases or terms used as a title among the instruments, including ‘Agreement’, ‘Partnership Agreement’, ‘Charter of Understanding’, ‘Memorandum of Understanding’, ‘Memorandum of Agreement’, ‘Memorandum of Partnership’, ‘Agreement of Understanding’ and ‘Operating Protocol’. In one instrument, the Mäori term "Tutohinga" was used.

• The parties - The parties to the instruments are, as expected, on the one hand local authorities, and on the other, Mäori group(s). While the process of determining which Mäori group(s) are representative takes place prior to negotiation of the instrument, the instrument is very significant in that it formally recognises representation. Almost all of the instruments were with Mäori parties who represented mana whenua interests.

• Purpose - Many of instruments provide for a section titled "Purpose" which outlined the reasons for establishing the instrument. These typically included purposes such as: developing a relationship of mutual benefit; and establishing and providing for a clear understanding of the basis of any relationship and the ongoing conduct of the relationship.

• Background - Many of the instruments provide a ‘Background’ which outlines the legal relationship between the parties under the Treaty of Waitangi, the Resource Management Act 1991 and/or the Local Government Act 1974. Many of the instruments explicitly state, however, that the local authority parties only have obligations under the Treaty of Waitangi when central government legislation provides for those obligations.

• Principles for the relationship - Almost all of the instruments outline the principles of the relationship between the parties. These include matters such as good-faith, cooperation, timely sharing of information, honesty of purpose, recognition of differing philosophical approaches to resource management, recognition of the different levels and forms of tangata whenua representation and the need for effectiveness and efficiency in delivering resource management for the wider community.

• Implementing the principles - All of the instruments outline how operational aspects of the relationship between the parties are to be dealt with. These typically include matters such as how the parties will be represented, consultation between the parties, conflict resolution, resourcing of the Mäori party, hearings, transfer of powers, resolution of conflicts of interest and the protection of sensitive information.

• Attestation clause - All of the instruments include some form of attestation clause, although some of the instruments are more detailed than others.

The instruments examined provide useful models for the development of these kinds of written agreements by other local authorities and Mäori groups. While the above analysis has raised many important points that should be considered in developing any written instrument, several general conclusions are worth underscoring:

• There will be at least two parties to the instrument - a Council and a Mäori group(s). It appears important that local authorities ensure the Mäori party or parties to the instrument are adequately resourced throughout any negotiations;

• Consideration should be given at the outset as to whether the parties are seeking to negotiate a broad instrument encompassing an overall relationship, or a more limited instrument relating to particular activities or services (such as resource management, representation or consultation);

• The parties should determine whether the instrument is to be considered legally binding;

• The parties should examine whether the instrument should be in English, Mäori or both languages;

• Where a local authority is seeking to establish relationships with more than one Mäori party, there might be consideration among the parties about whether to establish one written instrument for all Mäori parties or separate distinct instruments;

• The parties need to consider whether these types of written instrument which are typically drafted along the lines of an embellished ‘contract’ are an appropriate mechanism for establishing or acknowledging a relationship between a local authority and a mana whenua group or groups; and

• Overall there is a need for further clarification of local government’s constitutional relationship with Mäori.

The above analysis of the structure of these agreements begs the next question which is whether the use of these types of instruments is an effective mechanism for establishing and maintaining relationships between local authorities and Mäori.

A more comprehensive paper and a full set of the instruments referred to can be found on www.vuw.ac.nz/law/indigenous.

 

Māori Land Court & Appellate Court

Re Wilson & Brown & Arapaoanui 3C

146 Gisborne MB 72. 17 November 1999. Isaac DCJ

This matter began as an application to the Mäori Land Court for confirmation of a resolution of assembled owners of Arapaoanui 3C, a block of Mäori freehold land comprising approximately 74 hectares. In December 1997, the Mäori Land Court confirmed the resolution and its decision was appealed to the Mäori Appellate Court. The Mäori Appellate Court allowed the appeal and referred the matter back to the Mäori Land Court for rehearing. The main facts are set out in the Mäori LR October 1998 p3 where the Mäori Appellate Court’s decision is reported. In summary, the original meeting of assembled owners had resolved to lease the block to Michael Brown who had planted 22 acres of the land in pine trees and had occupied the land for some years. The proposed lease was for a 15 year period, with a right of renewal for a further 15 years. The rental was to be a fair market rental determined by Valuation NZ, the first three years to be based on 7% of the unimproved value of the land and with rent reviews every three years. (Originally, Mr Brown was not himself a shareholder in the block, but he was a son of major shareholder. By the time of the Mäori Appellate Court hearing, however, Mr Brown had become a shareholder.)

In the course of rehearing the matter, the Mäori Land Court held two judicial conferences and a further meeting of assembled owners. From these, it had become clear that:

• The owners acknowledged that Mr Brown and his family should receive the benefits of the trees and that the owners had terminated their prima facie right to own them in favour of Mr Brown.

• Any lease to Mr Brown should take no account of the value of the trees and the rental should be assessed on the unimproved value of the land.

• Despite the acknowledgment as to the ownership of the trees, a 70/30 split existed between the major and the minor shareholders, which the land court described as a "major" and "constant" conflict. In particular, the minority owners proposed the establishment of an ahu whenua trust to manage the entire block, with Mr Brown leasing 70 per cent of the hill country including the existing forest, the balance owners leasing the remaining 30 per cent of the hill and the remaining flat land administered, and possibly developed, by the Trust.

Held: Given the difference of opinion between the majority and minority shareholders, the land court should adhere to its primary objectives to promote and assist in the retention of Mäori land and General land owned by Mäori in the hands of the owners and the effective use, management, and development, by or on behalf of the owners, of Mäori land and General land owned by Mäori (s 17 of Te Ture Whenua Mäori Act 1993). In enabling these primary objectives to be met, the land court is required (amongst other things):

• To protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority (s 17(2)(d)/1993).

• To ensure fairness in dealings with the owners of any land in multiple ownership (s 17(2)(e)/1993)).

• To promote practical solutions to problems arising in the use or management of land (s 17(2)(f)/1993).

In this case, the land court considered that there was both an oppressive majority and an unreasonable minority, evidenced by each side’s unwillingness to compromise "despite being given every opportunity to do so". The land court was also concerned that confirming the resolution as it stood would provide neither a fair nor a practical resolution to the use and development of the land. Furthermore, there was a need to bring finality without more delay and it was important to avoid a partial solution that may need to be altered later.

Accordingly, the land court proposed a modified resolution by which Mr Brown would lease the hill portion of the block, including the area in forestry and the hill area not yet planted. This area totalled approximately 64 hectares. The value of the trees would not form part of the lease. The lease would be for a 15 year term, with a right of renewal for a further 15 year term. For the first three years, the rental would be based on 7 per cent of the unimproved value of the 64 hectares and rent reviews would occur every five years, with the rental to be a fair market rental determined by Valuation New Zealand. The balance owners would lease the flat portion of the block on the same terms. Two acres, however, would be excluded from the leases and be set aside as an urupä. The leases would be administered by an ahu whenua trust. The court gave Mr Brown time to consider and approve the modifications. It observed that if he did not give his approval, the court would dismiss the application on the basis that the provisions of s 17/1993 would not be satisfied.

 

Proprietors of Mangakino Township Inc v Hemi & Pouakani No 2

73 Taupo MB 30. 30 November 1999. Savage J

This matter began as an application for review of the incorporation, and an application to remove the trustee of the incorporation. Various aspects were appealed to the High Court and Court of Appeal (seeMäori LR July 1999 p2). In this judgment the court made final orders on the applications. There had been a "long history of acrimony and mistrust" associated with the governance of the land. Among other matters, the court ordered that:

• By agreement, the responsible trustee resigned his position and was to be replaced by two other persons appointed by the court after nominations were received from the two main protagonists before the court. These trustees were directed to raise the issue of appointment of future trustees before the next general meeting of the incorporation and then seek further orders from the court on the issue.

• A new clause would be added to the trust order providing for five yearly management reviews undertaken by an independent person paid for by the trust and whose appointment would be approved by the Mäori Land Court.

• No orders would be made in relation to voting by beneficiaries.

"Some may argue for one man one vote and others for voting by shares. Both have only dubious validity in Mäori tradition. They are both the logical consequence of individualisation of title and ownership by this Court. The very idea of voting and majority rule whether by number or shares has only doubtful validity in Polynesian tradition."

In a strict legal sense the voting had no impact since the trustees and court were required to make decisions. Voting by beneficiaries was not orthodox in general trust law. Voting by beneficiaries had been "grafted onto the Trust system by this Court to make the structure conform to an extent with the Incorporation mode and to give owners the opportunity to have their say" but it had no more legal force than that. Neither the trustees in making decisions about trust business nor the court in appointing trustees could delegate decision making authority to beneficiaries.

• The two appointed trustees would pay themselves normal fees after filing vouchers in court and obtaining approval for the specific payments.

• Mr Hemi, who had brought the proceedings and campaigned on behalf of the owners as a whole, was not entitled to normal fees, but because his actions had brought some benefit to the owners some of his costs in bringing the litigation would be paid.

No ruling would be made on any of the many allegations of breach of trust because the case had been broad in its coverage and there would be an inherent unfairness in particular findings on particular accusations. Separate proceedings could be brought if required.

 

Other courts & tribunals

McGuire and another v Hastings District Council and another

CA 224/99. Court of Appeal, Wellington. 16 December 1999. Richardson P, Henry, Thomas, Keith, Tipping JJ

Section 19(1)(a) of Te Ture Whenua Mäori Act 1993 (TTWMA 1993) gives the Mäori Land Court the power to issue an injunction for "any actual or threatened trespass or other injury" to any Mäori freehold land. In April 1999, the land court had issued an interim injunction under that provision by which it prevented the Hastings District Council from designating a roadway across Mäori land under ss168 and 168A of the Resource Management Act 1991 (RMA 1991) (see Mäori LR July 1999, p1). The Hastings District Council appealed the decision in the High Court. Goddard J held that TTWMA 1993 did not give the land court jurisdiction to overrule actions taken lawfully by territorial authorities under the RMA 1991 (see Mäori LR September 1999 p2).

The landowners appealed the High Court’s ruling. The appellants’ counsel submitted that there were two questions to decide. First, was the land court’s jurisdiction to injunct the district council circumscribed by the scheme and provisions of the RMA/1991 and, secondly, was the decision to notify a requirement under the RMA 1991 an actual or threatened trespass or other injury to Mäori freehold land? In respect of the first question, counsel submitted that:

• TTWMA 1993 reaffirms the Treaty principle of protection and maintains a specialist court to achieve the implementation of that principle.

• Neither the RMA 1991 nor TTWMA 1993 conflicts with the other. Their different purposes complement each other. TTWMA 1993 operates to protect Mäori freehold land from the consequences of decisions that the RMA 1991 does not authorise.

• The clear Parliamentary intent of TTWMA 1993 is to affirm the Crown’s duty of protection of Mäori land as a taonga tuku iho. The extent to which TTWMA 1993 has an effect on the RMA 1991 designation process accords with this.

• The RMA 1991 does not expressly exempt from injunction by the land court an unlawful exercise of statutory power under ss168 or 168A/1991 that causes injury to Mäori freehold land.

• This approach to jurisdiction is in harmony with the strong presumption that public authorities and public servants are answerable in the ordinary courts for wrongs done to individuals, unless clearly exempted.

In relation to the second question, counsel submitted that s19(1)(a)/1993 must be read in its statutory context having regard to the scheme and purpose of TTWMA 1993 and to the underlying policy. Land should be treated as a physical and metaphysical entity and an unlawful making and notification of a requirement to construct a roadway over Mäori freehold land constituted an actual or threatened trespass or other wrongful injury to that land. He argued that:

"Notification of a requirement represents a public violation of the Mäori landowners’ ancestral bond with their land. It offends against their rangatiratanga and their status as kaitiaki. More importantly it offends against the spirit or wairua of the land, because it represents a severing of ancient ties between the people and the land. Any conception of injury for the purposes of [TTWMA 1993] must include injury to the physical land and injury to the spiritual connection with that land."

Counsel for the appellants also submitted that the RMA 1991 does not expressly provide for relief from an invalid exercise of powers under ss168 and 168A/1991 and this, together with the absence of express fetters in either the RMA 1991 or TTWMA 1993 that limit the land court’s jurisdiction in this context, mean that its jurisdiction should not be read down to exclude a collateral challenge in respect of a local authority’s decision to make and notify a requirement under ss168 and 168A/1991. The wide jurisdiction that s19(1)(a)/1993 conferred on the land court could only be excluded by clear statutory language.

Counsel for the District Council submitted that, looking at the provisions of the RMA 1991 and TTWMA 1993, the correct inference was that the two statutes were prima facie separate and distinct and that the only relationships between them were those that were specified (such as provisions in relation to partitioning Mäori land). There were no provisions that made the requirement and designation process in the RMA 1991 subject to TTWMA 1993. Moreover:

"The requirement and designation procedure under the RMA is so clear and comprehensive as to provide an exhaustive code. The RMA contains procedures and processes to protect all interests involved. This cannot be reconciled with the purported jurisdiction of the Mäori Land Court to make orders that would cut across the administration of the RMA."

As to the scope and meaning of the phrase "trespass or other injury to any Mäori freehold land", counsel submitted that by statutory interpretation and the principle of ejusdem generis, the term "other injury" must be limited by the same criteria that apply to trespass, namely some unlawful act and physical entry or use of force. Accordingly, the requirement and designation process is not a "trespass or other injury". Where there is a doubt as to whether a territorial authority is acting lawfully, a declaration may be sought from the Environment Court. To accept the appellants’ arguments would mean that the land court could issue injunctions that "interfere with the operation of statutes of broad and general significance to the whole community including Mäori ... which would be a surprising and unexpected role for a specialist court like the Mäori Land Court." Duplication, forum shopping, uncertainty and confusion would result.

Held: The appeal could be more appropriately determined by focussing on the RMA 1991. Therefore, it is not necessary to decide whether s19(1)(a) embraces conduct wider than actual or threatened physical damage or interference with the possession of land. Nevertheless, the further paragraphs of s19(1)/1993 do not support a more expansive interpretation of para (a) than would otherwise be called for and the statutory history does not justify a wider interpretation.

There is no justification for reading into s19(1)(a)/1993 by implication a jurisdiction that would allow the Mäori Land Court to question decisions of the district council that on their face are squarely within the RMA 1991. The language and scheme of s18/1993 (which outlines the land court’s general jurisdiction) and of s19/1993 lend no support to such an implication. If s9(1)(a)/1993 contained such an implication, it would confer on the land court a jurisdiction "to inquire into any matters which may impinge on the validity of any action of a council under the RMA". Yet the ordinary area of operation and expertise of the land court "is far removed from resource management and judicial review matters".

Such an implication would also "jar with the elaborate provisions designed to ensure that the Environment Court will reflect Mäori values which are part and parcel of resource management under the RMA". For example, s6(e), s7(a) and s8 of the RMA 1991 each requires recognition of Mäori values in some way and s269(3)/1991 requires the court to recognise tikanga Mäori where appropriate. The RMA 1991 gives the court a pivotal role in decisions made under the Act, including appeals relating to policy statements, plans and resource consent applications, and the Court has a wide jurisdiction to grant declarations and it has extended enforcement powers. In terms of the Environment Court’s constitution, Environment Judges and alternate Environment Judges are appointed after consultation with the Minister for the Environment and the Minister of Mäori Affairs (s250/1991). An alternate Environment Judge must be either a District Court Judge or a Mäori Land Court Judge (s249(2)/1991) and may act when the Principal Environment Judge, in consultation with the Chief District Court Judge or the Chief Mäori Land Court Judge considers it necessary (s252/1991). In appointing an Environment Commissioner or Deputy Environment Commissioners, the Minister of Justice is to have regard to the need to ensure that the Environment Court possesses a mix of knowledge and experience in matters coming before the Court, including knowledge and experience in matters relating to the Treaty of Waitangi and kaupapa Mäori (s253(e)/1991). The appeal was dismissed.

 

Te Kupenga O Ngäti Hako Incorporated v The Hauraki District Council and Others

A105/99. Environment Court. 30 September 1999. Bollard J, Dr AH Hackett, IG McIntyre

Since 1952, HG Leach & Co had owned and operated the Tirohia Quarry, near Paeroa. In 1967 they purchased some land from local Mäori adjoining the quarry, with the Mäori owners retaining some mineral rights. There was a small fenced-off urupa to the east of the quarry.

The company had obtained resource consents from the district council to develop a regional landfill operation in conjunction with the quarry. The intention was to fill a large hole created by previous quarrying with about 800,000 tonnes of solid waste (The Waikato Regional Council had also granted the company consents relating to the discharge of landfill gas and other contaminants to air, vegetation removal and earthworks, stormwater control and treatment, clean water diversion, refuse disposal onto ground and discharge of landfill seepage to ground).

Te Kupenga O Ngäti Hako Incorporated, which represented certain tangata whenua interests of Ngäti Hako, an iwi with "traditional and long-standing occupational links" with the area and the land in question, challenged the consents.

Shortly before the completion of the appeal hearing, the quarry company announced that it had just obtained from the district council a certificate of compliance under s139/1991 which stated that the existing quarry operations complied in all respects with the district plan.

In this judgment, which was an interim decision, the Environment Court considered whether the existing quarry operation, when operated in conjunction with the proposed regional landfill, was a continuation of substantially the same operation as previously or whether it required a resource consent along with the landfill.

Held: For the purpose of its decision, the court assumed that the company’s current quarry operations were lawful on the basis of s10/1991 which provided that land could be used in a manner that would otherwise contravene a rule in a district plan if the use was lawfully established before the rule came into effect and the effects of the use remain "the same or similar in character, intensity, and scale" (quarrying was a discretionary activity under the Hauraki District Council’s district plan).

However, if the future use of the land were for a landfill and quarry in contrast with its present use as a quarry only, the company could not maintain its reliance on an existing use right under s 10/1991 and it would have to seek consent for both land use components. First, the combined activity would generate a substantial increase in heavy vehicle movements, the effects of which would not have been the same or similar to those stemming from the current quarrying. Secondly, for the tangata whenua of the area, the effects of the proposed landfill and quarry activity were different in cultural terms than for the quarry operation alone. The court accepted that it was a "major concern" to Te Kupenga that the proposed refuse disposal facility would inevitably receive items, such as sanitary pads and disposable nappies, soiled by bodily fluids or human wastes "albeit very small in comparative quantity". On the other hand, if the landfill were to be used for "‘clean fill’ such as earth, waste rock and the like, that would go far to remove the appellant’s objection. Although the court considered treating the proposed landfill as a separate planning entity distinct from the quarry, it did not see this as realistic given the "obvious inter-relationship between the two in terms of site layout, use of cover material, proximity of operation, and common access". Accordingly, consent for the quarry as well as for the landfill would have to be sought.

 

Kemp & Billoud v Queenstown Lakes District Council

C229/99. Environment Court. 22 December 1999. Jackson J, R Grigg, RS Tasker

This case concerned the refusal of the district council to grant two consents for further commercial jet boating on the Dart River where it flows into Lake Whakatipu. The area is one of outstanding natural landscapes and is an important area for Ngäi Tahu, who view the surrounding mountains as ancestors. Resource consents were required for commercial jet boat operations under the transitional and proposed district plans as non-complying activities (although a council decision on the proposed plan would make the activity discretionary in future).

The existing consent holders were Dart River Safaris Ltd (DRSL), running 20 trips per day, the Kemps, running 2 trips (to pick up and drop off trampers and fishers only), and a consent for Mr Billoud to operate hand paddled Canadian style canoes – a quieter operation. Mr Billoud was seeking a further consent to run 4 jet boat trips per day to take his kayakers upriver (having previously relied on DRSL to do this). The Kemps were seeking 10 jet boat trips per day for sightseeing.

Te Runanga o Ngäi Tahu (TRONT) opposed the application by the Kemps but supported Mr Billoud. As the Court was preparing its decision it became aware of a public announcement that TRONT had obtained a controlling interest in Shotover Jet Ltd which was the owner of DRSL. The court invited further submissions on any issues raised. DRSL also opposed the Kemp application but not that of Billoud.

The council has turned down both applications because the current consents already allowed 22 trips per day and the council had safety concerns. Any increase in trips was also opposed by several other witnesses, including the Department of Conservation, on grounds of effects on local ecology and wilderness values.

A TRONT witness outlined the importance of Te Awa Whakatipu (Dart River) as a taoka (taonga) and its spiritual importance based on reverence for deeds of the gods mentioned in legends associated with the river, genealogical links of present generations back to the river, the mana of ancestors who explored the area, waahi tapu (sacred places), and the naming of places in the landscape. The name for the South Island, Te Wai Pounamu, originated from greenstone found in the river catchment. The waters of the river had spiritual qualities and at least one area along it was regarded as tapu.

Under the Ngäi Tahu Claims Settlement Act 1998 (NTCSA 1998) a töpuni or protective "cloak" had been thrown over nearby Pikirakatahi (Mt Earnslaw), which extended down the slopes to the middle line of the river. The töpuni was a statement in legislation of values associated with the area covered and of steps to be taken to maintain those values.

TRONT opposed the Kemps application specifically because it would, among other matters, affect the intrinsic values of the river and the Ngäi Tahu spiritual and cultural relationship with it, detrimentally affect wildlife over which the iwi were kaitiaki, and reduce the quality of the place for the recharging of cultural values. In this regard, the river was said to be akin to Mecca - a place for the faithful to visit to strengthen their spiritual links with the area.

The area was also subject to a statutory acknowledgement or statement about values attaching to the place (under s206 NTCSA 1998 and Schedule 51). The court considered that, while the acknowledgment had "real psychological and cultural importance" its main legal purpose was for procedure and consultation, since s215 NTCSA 1998 provided that statutory acknowledgments only required consent authorities to forward consent applications to TRONT and enabled TRONT to cite the acknowledgments as evidence of Ngäi Tahu associations with the areas affected. In addition, s217 NTCSA 1998 provided that statutory acknowledgments could not be taken into account in the exercise of any power under a statute. The intention was that they were to ensure only that TRONT was always an interested group under the RMA 1991 and should be consulted whenever land covered by an acknowledgment was subject to a resource consent application. The status of TRONT as an interested group was also confirmed by an amendment to s274 RMA 1991, but their substantive interests were protected by the matters set out in Part II. The fact that the area was also subject to a töpuni meant that obligations were placed on the NZ Conservation Authority and Conservation Boards, but there were no obligations on other parties such as local authorities.

The court found that there was a conflict between the matters raised by TRONT witnesses and the protection for Mäori interests as a matter of national importance under Part II and ss6-8 RMA 1991. However, since access to rivers was also a matter of national importance (s6(d)), the task was to balance or reconcile those interests.

The court considered effects of noise, disturbance to wildlife (particularly birds) and safety issues, and found that those effects could be adequately mitigated.

The Department of Conservation argued that a water conservation order on the river which protected amenity and intrinsic values of the river effectively prevented the issuing of further consents for jet boating. However, the court concluded that a water conservation order concerns only matters over which the regional council has control, and did not affect the actions of the regional council and land use consents.

There was an allegation of inadequate consultation with Ngäi Tahu, who argued that while this did not prevent the court granting the application, it further demonstrated a poor appreciation by the Kemps of the values Ngäi Tahu held for the river. The court accepted that the NTCSA 1998 "strengthened" the duty to consult which arose under s8 RMA 1991 (duty to take into account the principles of the Treaty of Waitangi).

Since the activity was non-complying under the relevant plans, the court had to be satisfied that the effects would be no more than minor. The court found that, overall, 10 more trips would be a more than minor effect, but 4 more trips would not.

With regard to the issues raised by Ngäi Tahu, the requirement of the RMA 1991 to have regard to the principles of the Treaty of Waitangi worked at both a procedural level (consultation etc) and at a substantive level. The substantive duties were "reinforced and particularised" by the duty to recognise and provide for the relationship of Ngäi Tahu with their ancestral water and waahi tapu and the kaitiakitanga over the river and adjacent mountains under s6(e). Following Minhinnick v Watercare Services Ltd [1998] 1 NZLR 294, the court must make a value judgment among competing considerations on behalf of the community as a whole. The proposed activities were close to but not on a waahi tapu, and were on a river of great significance to Ngäi Tahu.

However, the fact that TRONT had bought a controlling interest in Shotover jet and thus DSRL was significant. The allegation that the TRONT evidence was tainted with this knowledge was rejected, since the TRONT witness had denied this and had not been cross examined on it (although he was possibly aware of the purchase within a few days of the court hearing and ought to have informed the court through his lawyers).

It was also argued that TRONT was being inconsistent in arguing that it had concerns about the effect of extra jet boat trips on the spiritual values of the river, when it now operated a company which took 20 trips per day on the river. The court found that if 20 trips were currently acceptable to TRONT, plus the 4 further trips sought by Billoud and not opposed by TRONT, then it should be acceptable for those 4 further trips to be operated by another party, if all other effects could be mitigated.

The Kemps (whose application for a resource consent had been lodged first) would therefore have 4 further trips granted (making 6 in total). The Billoud appeal was dismissed. Costs were reserved, and the court noted that there was an element of trade competition in the DSRL preference for the Billoud application and appeal against the Kemp application.

The court also suggested that, in view of the growing number of non-commercial jet boats in the river not subject to controls under the district plan, the district council might consult with TRONT over a variation to the plan to take account of the matters of concern raised by the Ngäi Tahu Claims Settlement Act 1998.

Commentary: The judgment is 71 pages long and many procedural and substantive matters not relevant to the Mäori dimension of the case have not been covered here. The case is interesting because it is the first judicial comment on what practical effect statutory acknowledgments and töpuni will actually have on resource management decisions. The judgment will be of interest to iwi other than Ngäi Tahu who are looking at using such mechanisms in their claim settlements.

 

Other

Taupo Tributaries Revested in Tuwharetoa Mäori Trust Board

Land Information New Zealand. Press release 21 December 1999

The title of the beds of several rivers and streams flowing into Lake Taupo has been transferred from the Crown to Ngäti Tuwharetoa through the Tuwharetoa Mäori Trust Board. The vesting arises from an agreement negotiated in August 1992 between the Crown and the trust board. The agreement relates to what are referred to as "Taupo waters", being Lake Taupo and the Waikato River extending from Lake Taupo to and including the Huka Falls and the beds and rivers flowing into Lake Taupo.

Background

In 1926, the Crown and Ngäti Tuwharetoa reached an agreement whereby the general public would have access to the fishery in Lake Taupo. The agreement is embodied in s14 of the Mäori Land Amendment and Mäori Land Claims Adjustment Act 1926. Under that section, proclamations were made declaring that the Taupo waters, together with the right to use the waters, were the property of the Crown. In negotiating the 1992 agreement, Ngäti Tuwharetoa asserted that the vesting in the Crown of title to the beds of Taupo waters was not intended to be part of the 1926 agreement. The agreement records the proposal that "‘beds of all Taupo waters shall be vested in the King as a public reserve’". However, the 1926 Act did not provide that the beds of those waters be held as a public reserve.

1992 Deed of Agreement

Under the 1992 deed of agreement, a management board is established to control the management of the beds of Taupo waters. The board comprises eight members, half of whom are appointed by the Minister of Conservation in consultation with the Minister of Local Government, with the remaining half appointed by the trust board. As far as it is practicable, and where not inconsistent with the deed, the management board is required to act as if it were an administering body under the Reserves Act 1977 and the beds of the Taupo waters are to be managed as if they are a reserve for recreation purposes under s17 of that Act.

Other salient features of the deed include agreements that:

• The bed of Lake Taupo vests in the trust board and is held in trust pursuant to the Mäori Trust Boards Act 1955 for its beneficiaries.

• The trust board holds the lake title in trust for the common use and benefit of all the peoples of New Zealand.

• Title to the beds of the Waikato River extending from Lake Taupo to and including Huka Falls and of the rivers or streams flowing into Lake Taupo vests in the trust board and is held in trust for the members of the Ngäti Tuwharetoa hapü who adjoin the rivers and streams, and in trust for the common use and benefit of all peoples of New Zealand.

• The people of New Zealand continue to have freedom of access to Taupo waters for recreational use and enjoyment, research and associated activities but subject to conditions and restrictions that the management board considers necessary for the protection and well-being of the beds of Taupo waters and the control of the public using them.

• The trust board may grant leases or licences in respect of parts of the beds of Taupo waters. Where such a lease or licence is entered into, half of the revenue is to be paid to the Crown and half to the trust board, which is to hold the money for charitable purposes as authorised by the Mäori Trust Boards Act 1955.

• The beds of Taupo waters are acknowledged to be land belonging to Ngäti Tuwharetoa, and the trust board shall have all the rights (including all Mäori customary rights not inconsistent with law or the deed), and shall be subject to all the responsibilities and restrictions, of a land owner.

• The Crown retains control of Lake Taupo as a harbour under the Harbours Act 1959 and the Lake Taupo Regulations 1976.

The re-vesting of the bed of Lake Taupo in Ngäti Tuwharetoa Trust Board occurred earlier, in 1993.

Commentary: These arrangements make an interesting contrast with the statutory acknowledgments and töpuni examined in the Kemp decision noted above.

 

Waitangi and Indigenous Rights. Revolution, Law and Legitimation

FM Brookfield. Auckland University Press 1999, 253pp

This book examines the concept of revolution as a means of basic constitutional change and its application in New Zealand. Brookfield develops in detail his thinking on issues which he has raised in other academic papers in recent years. His central thesis is that the British Crown’s assumption of sovereignty over Mäori iwi and hapü went far beyond what was ceded in the Treaty of Waitangi and was therefore revolutionary both for signatories and non-signatories. He examines the implications for the current and future legal order.

Background constitutional concepts

In the first half of the book Brookfield sketches out the broad legal principles which have been developed by courts to deal with revolutionary change and, in particular, seizures of power by Western states. As a constitutional lawyer, Brookfield is concerned with revolutions which involve the overthrow or replacement of any legal order which takes place contrary to a limitation or rule of that legal order. Violent action is not a prerequisite.

Standard constitutional theory holds that the superior courts (ie in NZ the High Court and Court of Appeal) have a duty to uphold the legal order under which they are constituted. The courts may also, in a revolutionary situation where an effective overthrow of the government has occurred, for the time being recognise day-to-day acts of government of the revolutionary regime, but not acts entrenching the revolution. Standard theory does not however allow the superior courts to rule on whether the revolutionary regime is lawful, since courts may not question the validity of the constitution under which they are created. The revolutionary regime must re-appoint the judges or replace them.

There is however an alternative view, with Privy Council support, that the courts are authorised and required to determine if a revolutionary regime has become lawful (Madzimbamuto v Lardner-Burke[1969] 1 AC 645). A key principle in exercising this "supra-constitutional" jurisdiction is whether the revolution has been successful in a practical sense, is not under serious challenge, and the people generally have acquiesced in the change. The point at which citizens owe allegiance to a new regime is when the new government is able to protect and administer law to citizens under it. Dissenters from the new order have a right to depart within a reasonable time.

A key reason for accepting the alternative view is that where quiet revolutions occur (eg replacing the monarchy with a republic) judges practically do carry on and accept the new regime.

However, while the test of "success and effectiveness of the revolution" determines whether the incoming regime is lawful, whether it is just and moral – ie legitimate – is a separate question.

An analogy with the common law of prescription – a weak title made good over time – can be applied so that a regime which was wrongly founded can attain legitimacy over time. The principle has been explicitly discussed in at least one case in Australia (R v Walker [1989] 2 Qd R 79). The common law also contains a principle which recognises that those in possession of land even for a short time have a right against all subsequent comers.

Over time, even revolutions achieved by force can gain legitimacy and moral force in addition to the minimal legality attained by the immediate success of the use of force. The means of initially attaining power are unimportant where prescription over time applies. Attaining legitimacy is important since all states begin in revolution and without some morality and justice there is little to distinguish them from mere thieves in possession of stolen territory.

Taken together, these concepts provide a means to determine what should occur in situations where there is limited revolution and the new regime incorporates some of the substance of the pre-revolutionary order. The new order may achieve legitimacy sooner in time, because some of the expectations of justice of the losers in the revolution will be fulfilled, even if imperfectly.

Such partial recognition or incorporation of the substance of the pre-revolutionary order can be found in the expansion of the Roman Empire, and in the course of Western colonisation – particularly in the recognition of aboriginal title as a common law right and in treaties made with indigenous groups.

As to the question of whether Western conquests could ever attain legitimacy, there was nothing special about Western Christian expansion (which followed earlier Islamic expansion) which would prevent the doctrine of prescription or growing legitimacy over time being applied. However, it might be that with respect to Western colonisation, we presently live too close in time to those events for them to have attained complete legitimacy. This conclusion allows countries to steer a constitutional "middle way" between the extremes of denying that indigenous peoples have any right to claim that a government lacks full legitimacy on the one hand and accepting that such claims can never be quieted by the passage of time and require the revolutionary overthrow of the existing regime. Brookfield examines Islamic/Christian rivalry, the Norman conquest and the English occupation in Ireland as examples of this tension between the two views being worked out in practice.

Brookfield also notes that, even where regimes established under western imperialism are replaced, subsequent regimes may retain some features of the earlier system which have proven to be an enduring legacy. He cites as examples laws against slavery and laws introducing due process and the rule of law. An independent judiciary is not usually present in societies under a chiefly system where chiefs combine executive and judicial functions. The rule of law has in many instances afforded some protection against the worst excesses of the colonial state – a fact admitted even by those otherwise hostile to western capitalist systems (the Marxist historian EP Thompson is cited).

Turning to the position of indigenous people specifically, if a state denies an indigenous people a right to self determination that may give rise to a right to rebel. That may not however include a right to secede from the state. Various international documents which recognise the right to self determination are unclear on whether that right includes a right to secede.

There is a further issue of who can be classed as indigenous. In some cases people who are not truly or uniquely original occupants of an area have been treated as indigenous (eg Sami people). The United Nations relies on a definition referring to peoples affected by Western colonial expansion. This very limitation on the term indicates that prescription practically operates so that many ancient invasions are viewed as legitimate over time (eg ancient invasions throughout Europe).

A conquest of one tribe over another usually gains legitimacy over time and may be acceptable in terms of broader custom. But even conquests of tribes by a group outside the society may gain legitimacy with the passage of time (thus, in Algeria, indigenous Berbers had no problems in aligning with Arabs (who conquered the area in the 8th century) in the war of independence against the French).

It appears that the issue of legitimacy has remained a problem mostly for peoples colonized by Western states. Occupation prior to Western colonization rather than original colonization is the issue.

Yet if an indigenous society, having occupied originally uninhabited soil (ie having complete moral legitimacy), recognises in their inter-tribal relations customary principles of seizure and conquest ie revolution, that society cannot deny the operation of the same principles between cultures – just as Mäori asserted such principles against Moriori in the Chatham Islands. The principles of revolution are not culturally specific. The important issue is rather how the rights of groups who have been conquered are dealt with.

Application to New Zealand

In the second part of the book, Brookfield applies these principles to New Zealand.

He first examines the Mäori legal system prior to colonisation. It included utu (punishment of offences) and muru (ritualized plunder), treaty making, the complex rules relating to land usage, and the office and authority of rangatira (chiefs). Inter-tribal conquests were possible, and conquests which might be wrongful could still be legitimated over time. There was the potential for tribes to agree on modifications to custom.

On the Crown side, in 1840 the Queen still retained much personal influence over government, but that was being increasingly limited by developing conventions that she only act on the advice of her ministers, who in turn had to enjoy the support of parliament. Moreover, the English Parliament, while called into being by the Crown, enjoyed powers beyond those of the Crown in relation to making law, and that supreme lawmaking power could also be possessed by any colonial parliaments which might be established. Such supreme power might be subject to common law limits against outrageous law (eg laws allowing torture), but such limits were and are uncertain. In summary, the Queen brought with her to NZ supreme legislative power as the Queen or Crown in Parliament with limits to that power which were imperfectly defined or did not exist.

The Declaration of Confederation and Independence of October 1835 signed by a few northern chiefs calling themselves the Confederation of the United Tribes of New Zealand may have been an attempt at revolutionary change if they were purporting to make fresh laws for the territories which the Declaration was to cover. But no such new legal order was ever extended over the country so that the revolution never became "by and large effective". Writers such as Kelsey have condemned the Declaration as not only politically and practically unsustainable, but also culturally inconceivable. The Declaration was briefly considered, but disregarded in Re Manukau (Unreported [1993] NZ Recent Law Rev 278).

As for the Treaty of Waitangi itself, Jane Kelsey and Moana Jackson have argued that the chiefs did not have customary authority to cede the mana of their tribe and thus could not transfer kawanatanga to the Crown. Brookfield (cheekily) suggests that Jackson might therefore agree with Judge Prendergast’s conclusion in 1877 that they also could not make an international treaty of cession! However, even allowing that some chiefs might have had a revolution in mind (ie making an arrangement going beyond and forbidden by their existing legal order), "it is surely impossible that any of the signatories can have intended to cede to the Crown the full power which it claimed and ultimately enforced throughout the country." The absolute supreme lawmaking power of the Crown in Parliament was not in their minds. Thus Crown actions after the Treaty are impossible to reconcile with it. The seizure of power beyond what could possibly have been agreed by the Treaty was a revolutionary act in relation to the customary legal systems of the hapü of the chiefs who signed. The seizure of power and revolution was even more acute for those chiefs who did not sign.

The Waitangi Tribunal has commented that while the kawanatanga conceded by the chiefs was not the sovereignty mentioned in the English text, a cession of sovereignty was "implicit from surrounding circumstances". Full agreement to the overriding power for the Crown ie legitimacy for the revolution - can only have been achieved over time.

"The revolutionary nature of the Crown’s seizure of power in pursuance of the proclamations of sovereignty of May 1840 is clear from the first constitutional steps taken by it. To give effect to the Treaty, if it did not create the protectorate of later imperial practice, the Crown ought to have created a colony with a written constitution in which Mäori rights were identified and received entrenched protection. That kind of solution was part of the constitutional thinking of the time. What the Crown in fact and law did was to create a Crown colony on the general model …"

The problems of this approach became apparent from an early stage. The first Attorney-General, William Swainson, argued that the Crown had taken more than then Treaty allowed. And the revolution was not effective over much of the country for many years (in Hohepa Wi Neera v Bishop of Wellington (1902) 21 NZLR 655 the Court of Appeal noted that the Queen’s writ did not run through all districts until long after 1865). There were questions about whether Mäori were even subjects of the Crown in those areas where no Crown government was present. The passage of the Native Rights Act 1965, which declared that Mäori were natural born British subjects, largely put those doubts to rest. The uncertain status of the Crown sovereignty led to the illegal use of force and martial law to pacify Mäori subjects in some areas. Mäori faced being attacked as if they were rebels, when the new legal order in fact made them loyal subjects exercising a right of self-defence. Prisoners from such engagements were treated as if they were prisoners of war rather than rebels.

The Crown also found itself dealing with Mäori groups such as the Kingitanga and followers of Te Whiti and Tohu as if they independent states rather than subject peoples. There were at least 2 offers by the Crown to King Tawhiao to recognize his authority as paramount in his district. The Mäori areas of autonomy which remained until the turn of the century were essentially counter-revolutionary situations against the Crown’s assertion of a new legal order.

The much quoted s71 NZ Constitution Act 1852 is interesting in this respect. It provided that the Governor might set apart districts where Mäori laws and customs would prevail. It carried the potential to create "domestic dependent Mäori nations" within NZ. The two offers to Tawhiao of an area of independence might have been given effect by using s71 (it was repealed in 1986).

Revolutionary change continued when, around the beginning of the 20th century, it became accepted that the imperial Crown was no longer unitary, but split into the Crown in right of England and separately in right of NZ. Thereafter the English Crown could not entertain appeals from Mäori about the actions of the Crown or government in NZ (although it was not until the Constitution Act 1986 that this position was recorded in legislation).

The Crown seizure of power also means that there is, in factual terms, no Mäori legal order based on the rangatiratanga reserved under Article 2 of the Treaty of Waitangi against which NZ law can be tested today. The basic legal order is that introduced by the Crown’s revolutionary seizure of power.

The revolution and new legal order did however recognise and provide for the existence of continuing Mäori interests in land via the common law doctrine of aboriginal title (even if there is a checkered history of the NZ courts enforcing this legal right). Nevertheless, the new legal order provided parliament with absolute authority to alter that title by legislation. The various acts of confiscations and Native land acts, as well as the recent fisheries settlement legislation, can be seen as an exercise of this revolutionary power of parliament.

Questions about the legitimacy (as opposed to legality) of the revolution of 1840 remain. There are some consequences of the colonisation of NZ which arguably give some legitimacy to the current order (even if they do not actually legitimise the seizure of power). These include an end of slavery, and the promotion of the rule of law – including an end to customary feuding and greater protection for individuals. In as far as rangatiratanga has been partly recognised in the new legal order (through Mäori councils, the Waitangi Tribunal and the like), the new order is partly legitimated. The growing "constitutionalisation" of the Treaty of Waitangi by the government and the courts in recent years is also part of this process.

To legitimise its actual seizure of power however, the Crown must invoke the principle of prescription - durability over time. The Chatham Islands provides a useful recent example of this process at work. The revolutionary seizure of power in the Chatham Islands by Mäori in 1835-36 was lawful in that it was effective on the ground. Its legitimacy was however uncertain. The Mäori legal order was effectively replaced in 1855 by the arrival of Crown officials. Insufficient time had passed to give the Mäori regime legitimacy. The Crown ought to have recognised the Mäori legal right, but because the Mäori order lacked sufficient legitimacy, it ought not, in justice to the pre-existing order of Moriori, have awarded almost all land to the conquerors.

Similar principles should apply on the mainland. The 1840 revolutionary legal order should be accepted as legal, and as having obtained some legitimacy over time, because of some justice and recognition of the pre-existing order which it has provided.

In his concluding chapter, Brookfield surveys the current debate over the Treaty, rangatiratanga and the legitimacy of the current legal order. The NZ courts are acting according to ordinary constitutional principles when they reject claims that certain statutes cannot apply to Mäori (eg Berkett v Tauranga District Court [1992] 3 NZLR 206). There is no revolutionary body making a substantial claim to the control of the state. The current legal order is thus unaffected and the courts cannot question it. There are however issues of legitimacy of the current order.

Brookfield suggests that a new legal order is required, but that this can be achieved by a quiet revolution, and not by extra-legal and extra-judicial means as writers such as Kelsey have suggested may be inevitable. He argues that the revolution must be effected within the structure created by the revolution of 1840 and should involve the settlement of the place of the Treaty of Waitangi within a new written constitution, preferably in the change from a monarchy to a republic. Some limit on Parliamentary sovereignty would be required to recognise in some way the rangatiratanga which was guaranteed in the Treaty and never provided for in the new legal order after 1840. This recognition could be in the form of limited self government for remaining traditional communities with operating marae, possibly in changes to the criminal justice system, and in official recognition for systems of iwi and hapü self government and a national representative Mäori body with some authority over legislation affecting Treaty principles. Alternatively, Treaty principles could be enshrined in a written constitution, comparable to the protection afforded to treaty rights in the Canadian constitution. A separate constitutional court might also be necessary to rule on disputes.

As to the method to bring about the change, binding national referenda of the Mäori and non-Mäori populations and a virtual majority in parliament would practically be required. But in terms of the constitutional principles discussed, agreement from Mäori might not be strictly necessary for such changes to take legal effect.

Brookfield briefly examines revolutionary scenarios mapped out by Jane Kelsey and Chris Trotter and finds that they do not fully consider the constitutional principles which would make the current order important in determining the legality and legitimacy of any subsequent order. If the current order were overthrown by Mäori in the armed forces (the Trotter scenario), the moral legitimacy of the subsequent order would in turn be open to question from the Päkehä majority.

Finally, Brookfield notes that growing globalization and the decline of the nation state may affect the ability to the state to effect the necessary constitutional changes to address the claims of indigenous peoples.

Commentary: This is an important book. It is the first time that a senior constitutional scholar has put forward such a lengthy and persuasive argument that there was in effect a legal revolution in 1840 and that the Treaty cannot be used to argue that sovereignty was ceded by consent.

Brookfield provides reasons for supporting the present order as at least "legal" in a strict sense, but he recognises that change at a constitutional level and some limits on the supremacy of Parliament are definitely required. He notes that the government has not yet reached this conclusion.

Conservative writers such as Round, Scott, and Minogue will find some comfort in his defence of the present order, his sharp critique of the contradictions in the arguments of radical commentators and his arguments about the benefits of the western legal system. They may not however be satisfied with his ultimate conclusions and call for change.

 

Adoption: Options for Reform

Preliminary Paper No 38 (NZLC PP38). October 1999. Law Commission

The Law Commission has released a discussion paper as part of a review of "the legal framework for adoption in New Zealand as set out in the Adoption Act 1955 and the Adult Adoption Information Act 1985 and to recommend whether and how the framework should be modified to address contemporary social needs". The commission’s terms of reference ask it to consider whether "special recognition should be given to Mäori customary adoptions or any other culturally different adoption practices".

The paper notes that, "the precise purpose and effect of ‘adoption’ varies depending upon the context, society and era in respect of which it is discussed". Some Mäori still practise an "informal system of customary ‘adoption’ which corresponds with the traditional concept of whängai or atawhai placements". However, the practice is not recognised by the New Zealand legal system. The Adoption Act 1955 has been criticised for its failure to accommodate Mäori culture, particularly:

• Its treatment of adopted children as the children of the adopters for all legal purposes and its severing of any legal relationship between the adopted children and the birth parents once the adoption order is made.

• The effect the Act has on customary rules relating to lines of descent.

• The secrecy involved in adoption practices.

• The lack of consultation and whänau participation in the adoption process.

The paper raises the possibility of a parallel system of adoption for Mäori but it notes that how this might be achieved and the legal consequences that would flow from such recognition have received little attention. It also cautions that whatever system is in place, legal certainty must prevail.

At this stage of its review, the commission has posed questions rather than answers and it is seeking submissions or comments by 31 January 2000. Some of the questions it has asked are:

• Should revival of legal recognition of Mäori customary adoption be considered? If so, what would the legal effect of customary adoption be?

• Should customary adoption be defined in accordance with former customary rules, or has it evolved since then?

• How would jurisdictional debates be resolved where the parents of the child were from different cultural groups?

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn