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

 

Mäori Land Court & Appellate Court

In Re Tukua and Maketu C2B Block

10 March 2000. 116 Otorohanga MB 81. Carter J

George Tukua died in 1997. He had never married and had no children. However, in 1953 he had met Paapi Karauti and lived with her until her death 14 years later. Paapi had a son, Te Kahuhui, who was 7 years old when the couple began living together. After his mother’s death, the association between George Tukua and Te Kahuhui continued, with George assisting in payments for for Te Kahuhui’s upbringing, and later, Te Kahuhui and his wife regularly visited George in his later years when his health was failing.

In a will made in 1993, George left the Maketu C2B block to "my step-son" Te Kahuhui "in recognition of his love and support for me." His other interests in Mäori land went to relatives of his mother and father.

There was no question that the will was subject to TTWM Act 1993 (although made several months before the Act came into force the will was still subject under s100(2)(c)/1993). Section 108 limits the persons to whom Mäori freehold land may be left by will. Land may be left to persons related by blood, including members of the hapü associated with the land, and whängai of the deceased. Te Kahuhui claimed that he was entitled to succeed under the will on the basis that he was related to George Tukua as a member of the hapü associated with the land (s108(2)(c)/1993) or as a whängai (s108(2)(e)/1993). He was opposed by members of the Tukua family who argued that neither relationship existed.

The blood relationship

The onus of establishing a blood relationship rested with the applicant, Te Kahuhui. The court had examined its own records, and had referred each side to relevant passages from its minute books. These cast doubt on the whakapapa presented by Te Kahuhui. The court was accordingly not satisfied that on the balance of probabilities there was a blood relationship with the deceased.

The whängai relationship

Section 3 defines whängai as "a person adopted in accordance with tikanga Mäori".

The court examined affidavits from two experts on the question of whängai within the Ngäti Mahuta hapü (Dr Ngapare Hopa, Auckland University, Fred Kaa, Waikato University).

Mr Kaa, of Ngäti Mahuta, provided an opinion that:

• Whangai relationships are usually between members of the same bloodline or family or extended family.

• Children not of the same bloodline could be considered whängai where the whängai relationship is strong and recognised by other members of the family and community.

• Whangai relationships can arise from agreements between unrelated families that a child of one will be raised by another.

• Ngäti Mahuta custom did not limit whängai only to children of the same bloodline or extended family, and non-kin whängai could exist, particularly where the whängai relationship was strong and widely recognised.

Dr Hopa provided an opinion that:

• Whangai relationships were usually between people related by birth, but non-kin whängai arrangements were possible.

• An example was the practice of whängai exchange between the Waikato kahui ariki (royal house) and whänau or hapü paying allegiance to the house. Children of the royal house were placed with these whänau or hapü, who in turn would send a child to the royal house to be brought up – as a political means of binding the people together.

• Non-kin whängai were sometimes described as mokai (pet, slave captive), which could stress an inferior position – but also a particularly strong bond based entirely on affection. This appeared to be the nature of the relationship in this case.

• Strong bonds of affection characterised relationships between Mäori and unrelated children placed in care by the Department of Mäori Affairs in the 1950s and 1960s.

• The term whängai commonly refers to relationships beginning at birth, but can apply to relationships commencing at a later date – in the case when the boy was 7 years old when he first met the deceased.

• A whängai arrangement is open to some renegotiations as circumstances change – usually the whänau as a whole are involved.

• Non-kin whängai relationships are more brittle than kin whängai because the whole whänau are not involved, and might resent the arrangement.

• The relationship in this case was based on affection, and could be compounded by another customary practice – an ohaaki or bequest.

The court concluded from this evidence that:

• Custom generally favours a kin based whängai relationship, but there were exceptions to that rule. Accordingly, the lack of a blood relationship in this case was not fatal to the application.

• The evidence showed a close relationship from the time the deceased first met Te Kahuhui at age 7, and the deceased referred to him as a son.

• The court could not take into account that putting Te Kahuhui into the land might cause problems with its administration by the trust which current held it. The trustees were obliged to act in the best interests of all beneficiaries.

• While the will clearly referred to Te Kahuhui as a stepson, that was a Päkehä description and a simplification which should not define the relationship (the solicitor who had drawn up the will indicated that had he been aware of the existence of the provisions of the 1993 Act, he would have described Te Kahuhui as whängai).

• In this case there was however no acceptance of the relationship by the whänau. But the court’s experience was that whängai were better accepted where they were brought up with other children of the family, and less accepted, particularly in terms of succession, where a deceased had no natural children and/or the wider family did not have a close association with the deceased. This was the case here, and in addition, there was an element of self interest in the whänau denying Te Kahuhui’s claim. Consequently, the lack of acceptance by the whänau was not fatal to the application.

• There was evidence of a long and close relationship between the deceased and Te Kahuhui, including caring for the deceased in his later years. That was the key factor in this case. Without that, the court would have rejected the application given the late start to the relationship (7 years of age) and the fact that it arose in a de facto relationship.

Nor should the court limit the interest given to the whängai to a life interest or something less than a full beneficial interest in the land. This would be incompatible with s108 which contemplates that Mäori making wills can leave full interests to whängai. There is a power of the court to limit the interests given in situations of intestacy (s115), rather than a situation where there is a will and the whängai may take as of right under the will.

Orders accordingly.

 

Re Mäori Trustee and Te Awaroa B4 Section 4B1 Block

90 Waikato MB 11. 21 January 2000. Carter J

In 1955 the Mäori Land Court ordered that this land, now comprising 41.6647 hectares, should be placed under the management of the Mäori Trustee and leased out, on the basis that the land had not been kept properly clear of noxious weeds, and the owners had neglected to farm or manage the land diligently and were not using it to its best advantage "in the interests of the owners and in the public interest."

Such orders were possible under the Noxious Weeds Act 1950, and ss387 & 389 Mäori Affairs Act 1953, with the approval of the Minister of Lands.

Public tenders were called by the Mäori Trustee and the block was leased in 1964 for 21 years, with rent set at 5% of unimproved value, reviewable every 10 years. The lease also contained a provisional right of renewal for the lessee along with a right to compensation of 75% of the value of certain specified improvements at the resumption of the lease.

The lease provided that the owners could seek to resume the lease by giving notice 12 months before it came up for renewal. The Mäori Trustee was obliged to take adequate steps to ascertain the wishes of the owners as to resumption or renewal, but was not bound to follow their wishes (s403(3)/1953).

In 1983 the lease came up for renewal and the Mäori Trustee notified the owners for whom he had addresses. Three owners responded and supported the renewal of the lease, and it was renewed for a further 21 years, with rights for the owners to seek resumption at the end of the 7th and 14th years for the renewed period..

Accordingly, in 1991 the Mäori Trustee once again notified the owners that a right of resumption or renewal was imminent. Of 13 replies 12 supported renewal and the lease was renewed.

In 1994 the owners met and formed a committee which directed the Mäori Trustee to resume the lease at the next available opportunity. This occurred in 1999 and valuations were being obtained to complete the process. As at December 1995, the improvements were valued at $75,000 and rent was $1500 per annum.

The owners had recently formed an ahu whenua trust and the trust had adopted these proceedings (originally brought by the owners as a group) alleging that the Mäori Trustee, as the agent and/or as a trustee for the owners, had failed in his duties and obligations in his administration of the land and caused considerable loss to the owners. In particular, it was alleged that he should not have granted a right to 75% of improvements in the first place, and should have considered alternative options to renewal of the lease came up, since each renewal allowed the sum for improvements to mount up to its present high figure.

Held: the applications should all be dismissed.

Nature of the obligations of the Mäori Trustee

The "somewhat draconian" provisions which allowed the land court to order that the land be placed under the Mäori Trustee for alienation was primarily concerned with utilisation of the land (s387/1953). The interests of the owners was secondary. The trustee was simply to act as an agent to alienate the land and no trust was mentioned. No fiduciary obligation was ever intended. The actions of the trustee therefore had to be examined as those of a statutory agent, and any remedy would lie in tort for a breach of his statutory duty (the land court has jurisdiction to consider such an action under s18(1)(d)/1993).

General administration of the lease

There had been minor breaches of covenants on the lease, mainly to do with clearing weeds. The approach taken of regular inspections was practical one. In practical terms it was not easy for a lessor to terminate a lease for minor breaches of covenants. The re-entry procedures are demanding and reserved for more serious breaches.

There were only four letters regarding non-payment of rent over 35 years. Taking re-entry proceedings for non-payment could end up in costly court proceedings and the letters also suggested that a practical approach had been taken.

The policy adopted by the Mäori Trustee was in accord with normal practice and there was no real room for criticism of his administration. In addition:

• Any minor breaches of the lease had not resulted in any great loss to the owners in any event.

• The fact that covenants regarding fencing, clearing and grassing did not specifically mention compensation did not make them inconsistent with the general requirement for 75% compensation for those improvements. It was a common lease in this regard in the era, and the compensation for improvements was the inducement to enter into the lease.

• The use of a standard form of lease adapted to the situation, whose provisions had been well tested in the courts, was a standard approach and a prudent exercise of administration by the Mäori Trustee.

The original grant of the lease

Criticisms about the 75% clause in the original lease could not be upheld. Part XXV/1953 clearly intended to bring land into production through long term leasing. A simple grazing licence with no provision for land improvement would not have met the intent of Part XXV/1953.

There had been reasonable advertising of the original lease and contact with key owner families at that time.

There was no substance to the criticisms that the lease could have been let on better terms. The land was not leased until 9 years after the Mäori Trustee was appointed as agent. The original advertising did not draw any offers. The land was re-advertised when a local Päkehä farmer expressed an interest in the land and he was the successful tenderer. The Mäori Trustee was obliged to offer the land by public tender (S393/1953), he obtained a good rental for the land by this method, and, had he entered into a private treaty, he would have been criticised for not testing the market.

The onus of proof rested on the owners to show negligence or gross error by the Mäori Trustee and they had failed to shift it. The Mäori Trustee file for the block showed no such negligence or error.

Renewal of the lease

Section 403(3)/1953 required the Mäori Trustee, before issuing a renewal of the lease, to take adequate steps to ascertain the wishes of the owners as to resuming the land, although he was not bound by their views. The actions of the Mäori Trustee in 1985 and 1992 were criticised, in continuing the lease without calling a meeting of owners, while knowing that the owners were concerned about the lease.

It was also alleged that the Mäori Trustee should have been aware of the effect of inflation on the compensation clause in the lease. The owners relied on In Re Te Akau B12L Block (1996) 79 Waikato MB 64 where the MLC considered that s403(3) requires the Mäori Trustee to consider fully the possibility of resumption each time the renewal of a lease comes up.

The comments on s403(3) in that case were not central to the decision in that case (ie obiter), but it was correct that the wishes of the owners were central to the discretion which the Mäori Trustee had to exercise. The 1953 Act required the Mäori Trustee to gave Mäori owners first preference over the original lease of the block (which had been contemplated when the original lease was let in this case). Accordingly, s403(3) was intended to give owners that opportunity each time that lease was renewed. If there was to be some outstanding debt however, arising from compensation provisions, then the Mäori Trustee would need to ensure that owners coming back into the land could address that issue.

If the Mäori Trustee wanted to terminate the original lease, re-lease the land to some of the owners, and charge the land for any outstanding amount which might be due under the compensation clause, he would need the approval from the owners before taking such radical action and seeking appropriate orders.

In 1983 the Mäori Trustee had notified the owners of the options for renewing the lease, or having the owners resume it. Three owners responded and none wanted the land resumed. A letter of concern written by an owner had been received too late for the renewal in 1985, since it was received after notice had to be given to the lessee (in November 1984).

In 1991 the Mäori Trustee had again notified the owners by letter of the forthcoming resumption option. Of the thirteen owners who responded 12 supported the renewal of the lease. There was therefore simply no mandate for the Mäori Trustee to resume the land at that time.

While the notice could have given further details of the lease terms, it was adequate enough to put owners on notice about the situation. Also, Part XXV did not require any meeting of owners, and the notice which had been given was adequate.

Recent events

Nor could the land court find anything wrong in the recent conduct of the Mäori Trustee. In particular:

• In order to put into effect the desire of the owners resume the land the Mäori Trustee had discussed with the lessee a further limited extension of the lease and payment of compensation, based on a 1995 valuation. That valuation now seemed a little high given a fall since 1995 in the value of the land, but the Mäori Trustee could not be blamed for that. It was the legislation rather than the Mäori Trustee which should be blamed for the situation now faced where compensation of $25-28,000 was required, when only $9,000 was held in a sinking fund from rents received.

• The Mäori Trustee could not be responsible for paying for an independent valuation of the compensation owed which had been obtained by the owners. The valuation was not obtained following the procedures laid down in the Act, and could only be used for checking valuations properly obtained.

• There had been an error in recording the terms of the lease in court documents, but the errors were minor, had been corrected, and had not disadvantaged any owner.

• The Mäori Trustee had exceeded his jurisdiction and retained all the rent received in recent years in the sinking fund, rather than distributing half the net rental received to the owners as required by statute (s402(2)). However, there was no necessary disadvantage to the owners in terms of their efforts to resume the lease.

The legislation

The court had "considerable sympathy" for the owners. But their situation has arisen because of the nature of the 1953 Act, not any action by the Mäori Trustee. The legislation fixed the rental which could be obtained at 5% of unimproved value and not a market value, with the consequence that the sinking fund could not cover the compensation now owed.

The option, suggested by the Mäori Trustee, of a fresh 10 year lease to the former lessee as compensation for the improvements, seemed the most viable option open to the owners. If the owners borrowed the money to pay off the compensation for improvements outright, the interest on the loan would take up all incoming rent, making repayment a long process. Viewed in this light, had the Mäori Trustee ended the lease in 1985 or 1992 the owners might have been worse off – because they would have had to lease out the land for an extended period to pay back interest on the money borrowed to pay off the compensation for improvements.

The object of the original lease had been obtained. The land had been brought into production.

Had the legislation in 1985 allowed, or policy encouraged negotiation to end these sorts of situations, the agreement now being discussed could have been arrived at earlier and the land resumed by 1995 or 1999 free of debt.

These provisions in the 1953 Act, first introduced in 1950, were repealed in 1970, and at that time the government could have assessed the likely impact of these sorts of leases on Mäori owners. There had however been no government policy to assist the owners to resume their lands.

Now that they were aware that no claim could lie before the land court on the issue, the new trustees might consider a claim to the Waitangi Tribunal.

 

Waitangi Tribunal

Memorandum-Directions of the Waitangi Tribunal concerning the Gisborne Inquiry

(Wai 814, document 2.2, Deputy Chairperson, Chief Judge Williams)

The Waitangi Tribunal’s Deputy Chairperson, Chief Judge Williams, has issued memorandum-directions relating to the Tribunal’s forthcoming inquiry into claims in the Gisborne area. The memorandum advises that the Tribunal will apply its casebook method to the inquiry but with some modifications. In particular, the Tribunal is proposing that the Tribunal conduct a more intensive interlocutory (or preliminary) process before starting hearings than has occurred in other inquiries. The elements to that proposal are as follows.

• The casebook, comprising all major historical research for the Gisborne inquiry will be compiled towards the end of this year.

• All claimant groups would be expected to submit fully particularised statements of claim so as to give the Crown and the Tribunal "fair warning" of the issues in contention and the evidence that is to be advanced.

• A conference "to assess live claim issues" would then follow. This would involve a "full and frank discussion of the approaches to be taken by claimants in their claims". It is expected that counsel at the conference would be assisted by their primary historians and claim managers so that instructions could be taken on particular matters, where necessary.

• Following this conference, the Tribunal may issue a minute that records the broad thrust of the claims that are being made.

• Once the claims have been fully particularised, it is likely that the Tribunal would require the Crown to plead to the statements of claim, either as a whole, or claim by claim. This Crown response would be expected to be fully particularised so that claimants have notice of the Crown stance and can identify areas of common ground and matters in dispute and whether those matters are ones of historical fact, opinions drawn from agreed facts, or the application of Treaty principles.

• A further conference would be held with a full and frank discussion of the Crown’s responses to the claims.

• Following this conference, the Tribunal may issue a minute that records any common ground between the parties and points of difference and the matters to which any differences relate.

• A final conference would be held to settle the technical and other evidence to be called by all parties. Thereafter, a departure from the list of witnesses and the evidence to be called would be by leave only and leave would be granted in exceptional circumstances only.

A conference has been scheduled for 8 May 2000 in Gisborne to hear the views of counsel on this proposal. Representatives of the Crown Forestry Rental Trust and the Legal Services Board have also been asked to attend "so that issues relating to research, claim management and counsel funding may be addressed comprehensively at this first conference".

The Chief Judge’s memorandum also:

• Sets out the possible geographical scope of the Gisborne hearing district.

• Signals that the Tribunal hearing the Gisborne claims may set a cut-off date after which claims filed will not be heard in the Gisborne inquiry.

• Advises that parties should raise any representation issues at an early stage in the inquiry, "if they are to be raised at all."

• Strongly encourages all parties to have instructed legal counsel well in advance of the May conference so as to avoid serious prejudice.

 

Other courts & tribunals

Warren v Police

AP 133/99 High Court, Hamilton. 9 February 2000. Penlington J.

The appellant had been convicted of three charges under the Crimes Act 1961 and the Summary Offences Act 1981. The charges related to theft, possession of an offensive weapon and assaulting a police officer. At the time of sentencing, the appellant was part way through a six-month sentence, suspended for two years, for cultivating cannabis. Accordingly, the District Court Judge activated the suspended sentence and imposed a cumulative sentence of eight months imprisonment. The appellant appealed both conviction and sentence.

The appellant represented himself on appeal, although in the course of proceedings he was joined by a Mr Manakau, who assisted him as a McKenzie Friend. The appellant argued that the Court did not have jurisdiction or authority over him and the offences he was alleged to have committed "‘did not exist’". He claimed that New Zealand was the territory of Te One One and that neither the Crown nor the New Zealand Government had the power "‘or any kind of authority’" in that territory. He submitted that his proper name was Wairata Te One One and that he was both king and the attorney-general of Te One One.

Counsel for the respondent submitted that the Court did have jurisdiction and that the appeal should fail.

Held: the appeal against conviction was dismissed. In reaching this decision, His Honour reviewed a number of cases in which similar defences had been raised: Kohu v Police 5 CRNZ 194, Berkett v Tauranga District Court [1992] 3 NZLR 206, R v Pairama 13 CRNZ 496, R v Fuimaono, CA 159/96, R v Clarke & Another CA 348/97, Knowles v Police (A 123/97. High Court, Hamilton. 27 February 1998. Hammond J), Haira v Police (A 18/98. High Court, Gisborne. 3 February 1999) and R v Waetford (CA 406/99, 2 December 1999). These cases confirmed the following principles:

• The New Zealand Parliament is empowered to make legislation.

• The Acts of Parliament do not derive their authority from the Treaty of Waitangi or the Declaration of Independence.

• The Acts of Parliament are binding on all persons within the territory of New Zealand, both Päkehä and Mäori.

• The New Zealand courts are subservient to the New Zealand Parliament.

• The Crimes Act 1961 and the Summary Offences Act 1981 were enacted by the New Zealand Parliament under the authority of the Constitution Act 1852 (UK). Later, the Constitution Act 1986, while repealing the 1852 Act, preserved the existing legislation including the Crimes Act and the Summary Offences Act.

These principles mean that the Courts have jurisdiction to deal with all acts and omissions that constitute offences under the Crimes Act and the Summary Offences Act committed within New Zealand.

The appeal against sentence was also dismissed. The sentence that had been imposed was within the range for the offences that had been committed.

Commentary: this case raises issues that are considered by Professor Brookfield in his recently published book Waitangi & Indigenous Rights: Revolution, Law & Legitimation (reviewed in Mäori LRDec 1999/Jan 2000 p8). There Brookfield writes that the "courts are always the courts of the constitution under which they are established. Their authority can always be traced back to the basic norm of the legal order."

"... the person who, pleading before any of those courts, for any reason denies its jurisdiction, ought not to be surprised or dismayed at the court’s inevitable rejection of the plea; for, if the revolution comes and is successful, a like plea by a person denying the jurisdiction of a court established by the revolution will just as inevitably incur a like rejection. This may be seen as the general rule." (p 19)

"The legal order desiderated by radicals, in which the tino rangatiratanga is at least part of the basic norm in a dual Mäori-Päkehä or Mäori-dominated polity, is likely to be established only as the result of a (probably overt) revolution. If and when it is established (any supra-constitutional questions being resolved in its favour), though possibly very different in many ways it will have in the present matter the same ‘internal logic’ as the one it has superseded." (pp 166-167)

 

Juken Nissho Limited v Thomas and others

CP 548/98 High Court, Auckland. 29 February 2000. Paterson J

Background

This case concerned three forestry leases of land at Mitimiti, Northland. The leases were known as the Te Puna lease and the first and second supplementary leases. The defendants owned the land in their capacity as trustees of the Te Puna Topu o Hokianga Trust. The trust had been created under the Mäori Affairs Act 1953 to represent the interests of the Mäori owners of several adjoining blocks of land in the region north of the Hokianga River.

Originally, Northern Pulp Limited was the lessee under each lease but, following the collapse of the Equiticorp Group in 1989, it was placed in statutory management. The plaintiff, Juken Nissho Limited (JNL), eventually purchased Northern Pulp’s assets, including the three leases, and the receivers undertook to use their best endeavours to secure the consent of the Trust to assign the leases to JNL. In January 1991, the receivers made a formal request for that consent. The trust, however, refused to consent to the assignment and, in turn, gave notice to Northern Pulp under the Property Law Act 1952, s 118 (restrictions on relief against forfeiture), in which it alleged breaches of the terms and conditions of the leases. Negotiations and litigation ensued. Ultimately, a deed of settlement was executed on 26 May 1995. It provided for the payment by JNL to the trust of three separate payments of money, the assignment to JNL by the trust of the three leases, and the amendment of some of the terms of the leases.

In these proceedings, JNL sought declarations regarding the agreed terms and conditions of the leases that were to be assigned, its right under the Settlement Deed to request that the trust execute substitutory leases in registrable form for the same land and forests on the same terms and conditions as the original leases as varied by the deed of settlement, and the regularisation of the Te Puna land titles so that the Te Puna lease could be registered.

For its part, the Trust contended that the leases had been varied beyond the express variations set out in the settlement deed. In particular, it argued that the provisions in the leases that provided JNL with the right to "full quiet and undisturbed possession" of the leased land and imposed on the trust an obligation to "abide by the directions of the lessee to enable the full and efficient administration" of the land no longer applied because they were inconsistent with provisions of the settlement deed. It also argued that the settlement deed varied the leases by giving it a role in the management of JNL’s forestry operations. Accordingly, the trust made a counterclaim in which it sought damages for the alleged breach by JNL of certain contractual arrangements under the deed of settlement, including damages for:

Inadequate roading in the forest.

• Non-compliance with certain silviculture requirements.

• Other failures that had caused a loss of production and therefore loss of revenue to the trust.

• Non-compliance with the employment protocol in the settlement deed.

• Failure to obtain the trust’s agreement to management plans, with consequent losses to the trust.

• Failure to provide the trust on a monthly basis with certain GST invoices.

• Breach of provisions relating to communications between JNL and the trust.

Held:

Terms and Conditions of the Leases

The leases held by JNL were on the same terms and conditions as the original leases, except for the express variations provided in the settlement deed. The settlement deed gave rise to legal obligations but it was collateral to the leases and, taking its plain and unambiguous meaning, it did not override the leases except where it contained express agreements providing for variations. This meant that the leases still contained the quiet enjoyment provisions that were in the original leases but they did not contain the report and management provisions that were in the settlement deed because the deed did not expressly provide that these provisions varied the leases. However, historical details in the leases could be updated and redundant matters excised if the substance of the leases did not change.

Breaches of contractual obligations by JNL

In the main, the High Court rejected the trust’s counterclaims either because they had no basis in law given the contractual arrangements between the parties, or because no right in damages arose. However, it held that in two instances JNL had breached its obligations to the trust by not giving it a right of first refusal under the employment protocol. Under the protocol, JNL agreed to offer the trust:

"the right of first refusal to carry out forestry work which the Trust or the Trust’s associated companies wish to carry out (such work to include but not be limited to land clearing, planting, thinning, silviculture, mensuration, fencing, roading, logging, transport and maintenance), provided that the trust can satisfy Juken Nissho’s reasonable contractual requirements for the particular type of work offered."

Recital F of the deed also stated that:

"The Trust and Juken Nissho agree to work together with goodwill and co-operation with a view to Juken Nissho managing a forest plantation on the Land in the best manner possible and giving full consideration to the local people in the Mitimiti forest district in relation to training and employment."

JNL submitted that all of the prospective employees were to be "the local people in the Mitimiti Forest district" and that Trust beneficiaries and their relatives were to be given priority over others. But the court rejected JNL’s argument that "beneficial owners" should be confined to those living within the Mitimiti forest district. Recognising that "Mäori have a very strong attachment to their land", it held that a narrow interpretation of "beneficial owners" in the lease would disadvantage some owners, such as those living in Sydney. Instead, "beneficial owners" should take its natural meaning and apply to all beneficial owners of the land contained in the leases. However, the trust would have difficulties in maintaining a claim on behalf of non-beneficial owners living in the district and denied work as it would have to prove that there had been a loss to the trust or to its beneficiaries and identification and standing problems would arise. The High Court held that the protocol contemplated work being offered to the trust as an independent contractor or as an employee, and that the relevant provisions of both the leases and the deed of settlement meant that the trust could subcontract work provided a ‘substantial portion of the work would be carried out by beneficiaries, their relatives or other residents in the Mitimiti Forest district".

The trust had a right to seek to resolve the two breaches of the employment protocol under the dispute resolution provisions in the leases or settlement deed, although the court considered that the trust could face difficulty in establishing that it had suffered damage. In respect of three other matters raised in the counterclaims, the trust had a right to have them further considered through the appropriate dispute resolution provisions in the leases or settlement deed.

In terms of the regularisation of the Te Puna land titles, the court found that the trust was contractually bound to execute three substitutory leases in the form of the original leases as amended and to regularise the title in respect of the Te Puna property so that the leases could be registered.

 

Parliament

1999 Ministry of Justice Post Election Briefing for Incoming Ministers

 

4.2 Customary rights and water

….. Crown policy on the use of rivers and lakes in Treaty settlements will be a significant issue in the coming year. In recent reports the Waitangi Tribunal recommended that Mäori interest in rivers and lakes that is akin to ownership should be recognised, and therefore compensation for hydro-electric generation be given.

Various redress instruments have been developed in settlement negotiations for recognising the historical and cultural association Mäori have with rivers and lakes and for involving them in management. However, there is no right in law to own water and the Crown has opposed any suggestion that compensation be paid for hydro-electric generation.

The claim to ownership of rivers has been reported on by the Waitangi Tribunal and is likely to be heard in the High Court next year; the Marlborough foreshore and seabed case is now before the Mäori Land Court again for re-hearing. Whanganui Mäori and Tainui are discussing their historical river claims with the Crown although these discussions are not focussing on aboriginal title or customary rights.

The options for the Government include:

a.defending litigation and Treaty claims on the general basis that aboriginal or customary title in New Zealand does not generally include water, foreshore or seabed

b.entering into negotiations with specific claimants to reconcile the interests of the Crown and Mäori (bearing in mind the implications nation-wide)

c.legislating to clarify the extent of any remaining aboriginal title or customary right

d.adopting some combination of these.

4.3 Resolution of Mäori historical grievances

….

4.3.2 Claims settled to date

Substantial progress has been made. For example, as a result of direct negotiations, historical grievances have been resolved in an area covering more than half of New Zealand, including most of the South Island. To date, over $500m has been provided as Treaty settlements redress. There are still 700 unsettled claims lodged with the Waitangi Tribunal. However, many overlap … or are "contemporary" claims.

Settlements since 21 September 1992

Claimant group Year Settled Value of settlements ($)

Fisheries 1992/93 170,000,000

Ngäti Whakaue 1993/94 5,210,000

Ngäti Rangiteaorere 1993/94 760,000

Hauai 1993/94 715,682

Tainui Raupatu 1994/95 170,000,000

Waimakuku 1995/96 375,000

Rotoma 1996/97 43,931

Te Maunga 1996/97 129,032

Ngäi Tahu 1996/97 170,000,000

Ngäti Turangitukua 1998/99 5,000,000

Pouakani 1999/2000 7,675,0002

Total Settlement Redress $529,908,645

4.3.3 Current negotiations

Heads of Agreement reached by 27 November 1999

Claimant group Year Heads Agreed Quantum ($)

Ngäti Awa 1998/99 42,390,000

Ngäti Ruanui 1999/2000 41,000,000

Ngäti Tama 1999/2000 14,500,000

Ngäti Mutunga 1999/2000 14,500,000

Te Uri o Hau 1999/2000 15,250,000

Rangitaane o Manawatu 1999/2000 8,500,000

Te Atiawa 1999/2000 34,000,000

4.3.4 Strategic issues

What is the appropriate pace of settlements? The readiness of claimants is clearly a limiting factor, but there is also a choice for the Government about the resourcing made available to enable more or less speedy resolution of these grievances.

How and at what level are Treaty settlements to be funded? Budget forecasting requirements mean that a decision is needed on the appropriation for implementing Treaty settlements.

What should be the role of the Waitangi Tribunal? The Tribunal was set up initially to deal with contemporary claims of breaches of the Treaty. It focussed more intensively on historical claims when its jurisdiction was extended to them in 1986. It currently has a mix of contemporary and historical claims to consider. At the moment, investigation by the Tribunal is an optional first step for claimants, before entering direct negotiations; this provides a mechanism for research and for airing of grievances. The Tribunal’s findings are in most cases influential, but not determinative, in negotiation.

The options for the Government include:

a.maintaining the current processes and the current level of resourcing

b.initiating a review of the processes for settlement of Mäori historical grievances, including examining objectives, processes and resources.

 

4.4 Specific historical Treaty settlement issues

4.4.1 Mandating

• Claimants’ ability to establish mandates to negotiate is a constraint in the settlement process. Mandating is a crucial phase of the negotiation process; it is also something that the Crown has only limited influence over. Robust mandates protect the wider claimant community, the claimant negotiators themselves and the Crown. For many claimant groups achieving a robust mandate is difficult because:

• Traditional decision-making structures have often broken down

• Iwi members are spread throughout the country

• Existing legal structures are often unsuitable.

Mandates are assessed for robustness by a consistent process involving publicising mandates and the assessment of submissions and supporting material by officials in Te Puni Kökiri, the Crown’s principal adviser on mandates, and the Office of Treaty Settlements.

The preference for iwi-level comprehensive settlements is likely to continue to be subject to challenge by claimant groups. In particular, it is likely that there will be approaches to the Government to negotiate with individual whänau or hapü, or to leave parts of particular iwi claims unsettled.

4.4.2 Settlement benchmarks

While settlement benchmarks have been established for claims involving pre-1865 Crown purchases and raupatu, there is still to be a benchmark established for claims involving the operation and impact of the native land laws and other post-1865 forms of alienation. This is significant as the majority of unsettled claims involve these forms of alienation.

Treating claimant groups in a consistent manner when considering settlement redress is fundamental to the integrity of the negotiation process and is central to the durability of existing and future settlements. Settlements are more likely to be revisited in the future if the Crown were seen to be changing the factors its takes into account when considering redress amounts for different claimants.

The relativity clauses in the Waikato-Tainui and Ngäi Tahu settlements mean that these iwi will receive approximately 17 percent each of any amount over $1 billion (in adjusted terms) that the Crown spends on settlements. Any departure from the established benchmarks is also likely to have significant implications for these relativity clauses.

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