The Mokai School Report
Wai 789. 31 March 2000. JR Morris (presiding), J Baird, A Koopu, R Tahuparae
Mokai Primary School was a small, rural, sole-charge school located in Mokai village between Taupo and Atiamuri. It was a mainstream school that, since 1994, had taught its pupils bilingually. All the pupils enrolled at the school when it closed, and for an unspecified period before that, were Mäori. While the school population had fluctuated considerably, since 1994 it had generally ranged between 10 and 18 students, with a high of 24 students and a low of four. In October 1999, following a decision by the Minister of Education under provisions of the Education Act 1989, the Mokai Primary School was closed. Meanwhile, proceedings had been commenced in the High Court for judicial review of the Minister’s decision and a claim about the closure was also submitted to the Waitangi Tribunal. Following the High Court’s decision dismissing the application for judicial review (see Mäori LR Oct 1999, p8), the Waitangi Tribunal was asked to hear the claim urgently. The tribunal found that the claim should be heard urgently.
The Education Act 1989
Sections 154 and 157 of the Education Act 1989 set out the steps to be taken in the process of closing a school. First, the Minister of Education must be satisfied, after consulting the board of the school, that the school should be closed. At this point, a decision in principle is made to close a school. After a decision in principle is reached, the minister may, by written notice, ask the board if it has any arguments in favour of the school staying open. In the second step, the minister must consider any arguments made by the board within 28 days after it receives written notice asking for them. After that, the school may be closed as from a specified day, which is effected by a notice in the Gazette specifying the day on which the school will close. On that day, the school ceases to be established. The third step involves consulting the boards of all State schools whose rolls might be affected by the school’s closure.
The claimants’ case
The claimants challenged the closure of the school on two main grounds. First, they contended that the minister’s decision to close the school was made without due regard to its effects on Mokai tino rangatiratanga and the taonga of te reo and mätauranga Mäori. They claimed that due consideration would have involved the minister and his advisers giving serious attention to all reasonable means by which education could be delivered to the Mokai children in their own community as opposed to closing the school. The school’s closure diminished Mokai tino rangatiratanga and protection of the taonga that are part of that identity and autonomy.
The claimants presented evidence about the importance of the Mokai Primary School in fostering Mokai tino rangatiratanga. The school was situated on ancestral land and within a predominantly Mäori community. The children who were attending the school had whakapapa links to the seven Mokai hapü and there was a close relationship between the school and the area’s mätua marae, Pakaketaiari. Not only were the school and the marae physically close, the school’s charter referred to the marae as being of "great importance in providing the community with a focal point for its needs" and to the school as a major part of that focal point. Claimant witnesses talked about a "Mokai triangle" to describe the interrelationship of the Mokai marae, village, and school and how "in the community nothing happened at the marae without happening at the school and vice versa". The school taught bilingually and incorporated te reo Mäori and the tikanga, kawa and mätauranga of Mokai in its curriculum. The principal of the school at the time of its closure, Mrs Koopu, of Ngäti Tüwharetoa and Ngäti Whakatere descent, was considered to be "one of their own". She testified that the emphasis on mätauranga and te reo Mäori in the daily life of the school was wholly compatible with the national curriculum and could not be distinguished from the time spent teaching it.
The claimants argued that the closure of the school would: "destroy the connection between our triangle – the school, the marae and the village". One witness commented that "These children were growing up in a unique environment where they actively participated in hui, tangi, and whänau gatherings at the marae where they could learn about their history, pakiwaitara, waiata, tikanga, kawa and whakapapa. They will never learn these things anywhere else."
The claimants submitted that the support and training provided to Mokai school was unsuitable. Further, the Ministry of Education gave insufficient attention to using other options for strengthening the school’s performance. These options included statutory interventions such as the appointment of a commissioner to replace a board of trustees (s 107/1989) or the engagement of specialists to provide a board with appropriate assistance (s 64(A)(1)/1989) and various school-initiated options, such as satellite schooling or school mergers. As the information gatekeeper, the ministry should have told the school community about such options, and "assisted with the implementation of any that were appropriate in all the circumstances".
The claimants’ second main ground for challenging the school’s closure focussed on the adequacy of the ministry’s consultation during the closure process, which began in November 1995 and spanned nearly four years. More particularly, they contended that the ministry’s efforts to engage in an exchange of ideas with the school community about the wider range of issues that the community considered relevant was insufficient and that if consultation had occurred that met the Treaty partnership standard, the Mokai community would have had the opportunity to identify the issues, directions, and possible solutions and outcomes. Claimant counsel submitted that there was no "fully fledged discussion about all alternatives and options in an attempt to find an agreed position in accordance with Treaty principles". Although a number of meetings took place over the closure period no meetings appeared to have specifically considered the topic of closure, and alternatives and options were generated. It appeared that the Crown "simply took on board the views of the Mokai community and Board that they did not want the school to close, consider[ed] that there was bilingual education within the local the area and relay[ed] that on to the Minister."
The claimants accepted that even if proper consultation had occurred, the school might still have closed.
The Crown’s response
Crown counsel focussed on the two main concerns that the Minister of Education had had with the school: the quality of the education being delivered there and the school’s viability. In doing so, the Crown provided information about the roles and responsibilities of the Education Review Office (ERO) and school boards of trustees, both key agents of the Tomorrow Schools policy governing education in New Zealand throughout the 1990s.
ERO is the government department that has responsibility for independently evaluating and reporting on the quality of educational services provided by all registered schools in New Zealand. It is separate from the Ministry of Education, which develops and implements education policy across all State-funded education sectors, although the two bodies share common objectives. ERO’s primary objective is to provide "reliable, accurate, and useful evaluations that support and improve the quality of decisions taken by key education stakeholders". It does so, not through national measures of the educational achievements of primary school pupils, but by reviewing the performance by boards of trustees of their obligations to govern and manage the delivery of education. This is based on the understanding that there is a "correlation between the quality of a school’s governance and management systems and the quality of the educational achievements of its students". ERO conducts accountability reviews every three to four years to evaluate the degree of compliance by school boards with their legal obligations. Where significant concerns arise with a particular school’s performance, ERO conducts a follow-up review, called a discretionary review.
Reviews normally go through three stages:
• Scoping stage—to determine the extent and focus of the review.
• On-site review—involving a team of trained, experienced and tertiary-qualified review officers observing the school in action and consulting key stakeholders in the course of evaluating the school’s performance.
• Review team meeting with the board of trustees—for a final exit meeting to discuss the reviewers’ findings and assessments.
In the post-review stage, the review team’s unconfirmed report is made available to the school board for comment and, once confirmed, the report is made available to parents and the school. Subsequently, the board is asked to advise ERO of the action it has taken or plans to take in response to the reports findings or recommendations. That response is made public.
Elected boards of trustees, which comprise a majority of parent representatives, have overall responsibility for the operation of all schools in New Zealand, regardless of the size or location of the school or of the extent to which a community has within it people with the requisite skills for effective governance. The obligations of a board of trustees derive from each school’s charter and the national education guidelines, which in turn derive from the Education Act 1989.
School charters set out the aims, purpose, and objectives of each school. They are to be prepared after consultation with parents and staff, and after consideration of the views of Mäori communities in the area. All school charters are deemed to include the aims of:
• Conforming with the national educational guidelines;
• Developing policies and practices that reflect New Zealand’s cultural diversity and the unique position of the Mäori culture;
• Taking all reasonable steps to ensure that instruction in tikanga Mäori and te reo Mäori are provided for full-time students whose parents ask for it.
When the ERO conducts a review of a school, it evaluates a board’s compliance with the stated and deemed provisions of the school’s charter.
The national education guidelines, promulgated under s60A Education Act 1989, have 3 components. The national educational goals are broadly stated, overarching objectives for the State education system and include a goal for increased participation and success by Mäori through the advancement of Mäori education initiatives, and including education in Te Reo Mäori, consistent with the principles of the Treaty of Waitangi. The national administrative guidelines are more specific and support learning and assisting schools to meet the national educational goals. They relate to matters such as the provision of a balanced curriculum, employer responsibilities, and documenting the implementation of the national education guidelines. The third component, the national curriculum statements, ensures the implementation of the New Zealand curriculum that applies in schools from year 1 to year 13. Each statement applies to one of seven essential learning areas: language and languages, mathematics, science, technology, social sciences, the arts, and health and physical well-being. Once gazetted, a national education statement is compulsory; until then, schools use existing syllabi. A Crown witness described these statements as "sufficiently broad and flexible to allow for local interpretation and elaboration, and sufficiently specific to provide students, teachers, parents, and communities with clear information about what is to be learned and achieved during the years of schooling".
Crown evidence showed that ERO reviewed the Mokai Primary School seven times between 1991 and June 1998. Four of these were discretionary reviews following up unsatisfactory findings of previous reviews. Although the Crown acknowledged that the number of non-compliances had declined during Mrs Koopu’s term as principal of the school, its considered that the remaining non-compliances were of a significant nature and were "‘critical to the school’s effective delivery of quality education’". It also argued that all past ERO reports needed to be considered " to understand the cumulative impact of the quality of education delivered at Mokai".
Mr Hill, the ERO area manager who had been responsible for the last three reviews of the school, summarised the problems that remained at the time of the final review in 1998:
• Little formally-adopted policy to guide management in following the board’s direction;
• A 1997 objective of the school development plan to establish board roles and responsibilities had not been implemented;
• Basic material such as the charter, code of conduct, and handouts on the national administration guidelines had not been given to trustees;
• Individual documents for administration were developed in isolation, often with little relationship to other documents.
According to further Crown evidence about the quality of education at Mokai:
• Frequent changes in board members and principals over the years meant that the board was always needing to start again, leading to a lack of compliance with key governance matters.
• All ERO reports between 1991 and 1998 recorded curriculum difficulties to varying degrees, including a lack of planning of appropriate objectives and a lack of assessment of student progress.
• There was inadequate or incomplete governance and management of the school by the board of trustees, including a lack of understanding of the board’s roles and responsibilities and a failure to demonstrate familiarity with the national education guidelines and their significance in the continuing operation and administration of the school.
While Mr Hill acknowledged the Mokai Primary School’s board of trustees’ commitment to the school and community vision, he did not concede that in its last two years the school faced more pressure than other schools. There were many examples of comparable situations where schools had successfully established systems to meet their legal obligations.
The second major concern of the Minister of Education in deciding to close the school had been the issue of the school’s viability, defined as a community’s ability over time to "actually sustain quality of education". While the Ministry of Education no longer has a minimum roll number below which a school would automatically close, although size and the sustainability of a school’s roll were taken into account. The Crown considered the roll at Mokai Primary School to be "generally low". Although it acknowledged that whakapapa links influenced the size of a catchment area and that those links extended beyond the immediate geographical area surrounding the school, its evidence was that most enrolments came from a school’s immediate area and that there were very few pre-schoolers in Mokai Primary School’s catchment area.
The Crown also presented evidence about the cost-effectiveness of small schools in general and Mokai Primary School, in particular. For very small schools, which are the most expensive per student, the government had to balance "its interest in ensuring access to schooling against the educational and financial viability of the school and the need to obtain value for money in the use of taxpayer funding."
For Mokai Primary School, statistics showed that the staffing and operational funding was $6508 per pupil in 1997 (for 15 students) and $6422 in 1998 (for 18 students). The ministry estimated that in 1999 the school’s per pupil costs, based on a roll of eight students, was over $14,000 per pupil. The average primary school received 3,250 per pupil.
In keeping with the Tomorrow’s Schools’ governance model, school boards have a substantial measure of independence to self-manage their affairs. Accordingly, the ministry preference was to support schools through the funding of a number of agencies that give support to schools rather than by imposing intervention measures. Nevertheless, the Crown argued that the board of trustees and principal of Mokai Primary School had received assistance from the Ministry of Education and ministry-funded service providers "that was extensive, appropriate, and sufficient to enable compliance with all the board’s legal responsibilities", including training in governance areas and operational areas.
The Crown’s position was that, taking account of all the circumstances, the closure of Mokai Primary School was the most appropriate course of action to take. The circumstances were not appropriate for the appointment of a commissioner or other alternatives to closure. Crown witnesses presented details of meetings and discussions about closure with the Mokai Primary School board of trustees and community that had occurred from late 1993 to July 1998. These began with information requests about closure by the then principal, who was concerned about low enrolments, and included a meeting at the school by ministry officials in March 1994 to discuss closure and further meetings in 1995. After a meeting in October 1995, the Minister of Education had decided to consider the closure of the school. A further meeting occurred in November 1995 to present a letter that outlined the minister’s decision. The letter concluded that the ministry’s Hamilton office had been directed to consult with the school’s board. Mr Kitto, the Ministry of Education’s liaison officer with responsibility for the considerations relating to the closure of the school, stated that most attempts to consult with the board were unsuccessful because "the school board did not prioritise such discussions". Consequently, after November 1995 and before the minister’s decision in principle to close the school was reached in July 1998, "there were no meetings called by the Ministry specifically to discuss the issue of school closure." Where communications did occur with the school about closure, they were part of discussions that primarily involved other matters about the ongoing operation of the school and were not always well documented.
Further communication took place after the minister had made his decision in principle to close the school. In July 1998, the Mokai school board was asked, as required by s154 Education Act 1989, to provide any argument as to why the school should remain open. The board presented its response in writing and in person. Noting the board’s arguments that there had been improvements at the school, the minister then asked for clarification and, in March 1999, ministry staff attended a hui at the school to receive the board’s reply. In the same month, the ministry briefed the minister, including information about the nearest alternative school and the nearest bilingual provider for each pupil at Mokai Primary School.
Crown counsel submitted that it was "inevitable" that in a situation where a community did not want a school to close, "the school, staff, board and community would be unwilling to engage in a process which could have an outcome which they were not prepared to consider, namely closure". However, particularly in light of the board’s unwillingness to discuss the matter, the ministry had done as much as could be reasonably done to consult over the closure of the school and the consultation undertaken by the ministry under s154 satisfied Treaty requirements for consultation developed by the Court of Appeal.
Treaty arguments of the parties
The claimants asserted that the Crown’s right of governance is qualified by the responsibilities that flow from the Treaty partnership and that, in this particular case, the Crown had not taken proper account of those responsibilities in its dealings with the Mokai school community. By invoking this Treaty principle, the claimants asserted that the Mokai school community was a Mäori community exercising tino rangatiratanga (or, as the claimants put it, Mokai identity and autonomy, or Mokaitanga) and could therefore expect the Crown, exercising kawanatanga, to take reasonable steps to respect and protect its interests. Relying on comments from the Lands case  1 NZLR 641, the claimants contended that the Treaty principle of partnership required "the Treaty partners to act reasonably and in good faith towards one another" and that this principle provided the standard by which the ministry’s consultation regarding the closure of Mokai school was to be tested.
The claimants argued that local Mokai identity and autonomy was inextricably linked with te reo and mätauranga Mäori. Moreover, Mokai school played a vital role in preserving and strengthening the Mokai identity "including all its various components in particular its tikanga, mätauranga and reo particular to this area". Therefore, in closing the school, the Crown breached Treaty principles by failing to protect actively the taonga of te reo and mätauranga Mäori and it adopted a narrow approach to the issue by failing to consider the interdependence between local Mäori identity and autonomy and Mäori language and knowledge systems.
The Crown submitted that its policies and conduct under the Education Act 1989 were a legitimate exercise of kawanatanga, both generally and specifically in relation to Mokai school. Also relying on theLands case, Crown counsel submitted that the Crown’s right to govern in the interests of all New Zealanders "cannot be made subject to unreasonable restrictions as a result of the interpretation of other Treaty principles". Although she acknowledged that claimant counsel had expressly denied that the claimants were asserting "an absolute right for Mäori to have an education at the place of their choice", Crown counsel argued that the claimants were asserting that Article 2 supported an argument that a community such as that at Mokai had an "absolute right" (by virtue of the Treaty and not for any educational or social policy reasons) to receive a State education which accommodated that community’s interests in the taonga of the Mäori language and traditional knowledge and customs, disregarding all other considerations. It was also said that the claimants were asserting that such a right extended to delivery of that education "in the context of the particular identity and place of that community." The Crown rejected that approach.
The Crown did not acknowledge that the Treaty principle of partnership was directly relevant to the claim but it submitted that the consultation required by the s154 school closure process depended on the same features as the partnership principle requires. Referring to Barton-Prescott v Director-General of Social Welfare  3 NZLR 179 (see Mäori LR, June 1997, p6), the Crown maintained that the principles of the Treaty coloured the interpretation of the Education Act 1989, as it colours the interpretation of "all Acts dealing with the status, future and control of children".
In respect of Mäori language and culture, the Crown accepted that these were taonga and that the State education system had a role in carrying out its duty actively to protect them. The Crown fulfilled its duty "by the provision of a statutory framework under which the taonga may be protected and by the existing and developing strategies by which it supports communities’ initiatives to implement the protection in ways that suit them".
While the claimants did not place any reliance on Article 3 of the Treaty, the Crown submitted that, "in modern-day terms, Article 3 guarantees Mäori ‘equality of access to the benefits, rights and privileges of all citizens’" and that State primary education is one such right.
The tribunal noted that the claimants and the Crown had "fundamental differences in their understandings of the Treaty principles" and those arose from "quite separate understandings" of the relevance of article 2 of the Treaty of Waitangi to the claim. As a result, the parties "‘talked past each other’ during the hearing to a significant degree". The tribunal considered a wide range of statements by the courts and the Waitangi Tribunal about Treaty principles and, in particular, drew assistance from the Waitangi Tribunal report on the Te Whänau o Waipareira claim about social and welfare services, (see Mäori LR, July 1998, p1) which considered the "nature of tino rangatiratanga and how the relationship between the Crown and Mäori is to be approached in modern times".
In terms of the Treaty principle of kawanatanga, the tribunal found that it could not be understood in isolation from other principles that require the Crown to exercise quality kawanatanga or good governance, "where the meaning of ‘quality’ and ‘good’ is determined by the consistency of the Crown’s governance with the entirety of the Treaty’s principles.
Drawing on the Te Whänau o Waipareira Report, the tribunal found that the "essence of tino rangatiratanga is found in the reciprocal relationships that exist, between a group’s leaders and supporters, for the purpose of maximising the group’s interests". The relationships and values of tino rangatiratanga were evident in the Mokai community and the "education of Mäori children into their own community is a responsibility of tino rangatiratanga, properly understood". The essence of the principle of tino rangatiratanga was that "Mäori communities are entitled to identify themselves, and to manage their affairs, in accordance with Mäori custom and values". The principle applied to the Mokai community and was relevant to its interactions with the Crown over the State education of Mokai children. The tribunal considered that no other view was possible in light of the fact that "those children are the recipients of State education and, as is acknowledged by the Crown, State education has an important role to play in the fulfilment of the Crown’s duty actively to protect the taonga of Mäori language and knowledge."
The tribunal rejected the Crown’s submission that State education is purely an article 3, equal rights matter but noted that the Crown had not given that argument heavy emphasis.
In relation to the principle of partnership, the tribunal again closely followed the approach taken in the Te Whänau o Waipareira Report and reiterated the view that the Treaty partnership should not be seen in a narrow, contractual way as if to describe a relationship between the Crown and particular classes of Mäori. Rather, the "primary purpose of the Treaty concept is to describe the way in which Mäori and the Crown should relate to each other." As part of that relating to each other, the Crown is to protect all things important to Mäori, including tino rangatiratanga. In this way, the principles of tino rangatiratanga and active protection of taonga were the foundation of the partnership between the Crown and Mäori and always guided the way in which the Crown exercised its kawanatanga.
In terms of the consultation that occurred in the school closure process, the tribunal’s focus was not on the legality of the process but on the "standards for consultation that proceed from the Treaty principle of partnership and whether they were met in all the circumstances". In assessing the consultation, the starting point was the fact the Crown did not acknowledge the Mokai community’s tino rangatiratanga. This indicated that the Crown "misunderstood the nature of the community with which it was dealing and so the context within which Mokai Primary School operated".
The opposition of the Mokai community to the school’s closure "should have rung ‘warning bells’ for the ministry, alerting it to the need to take special care to approach the consultation process in a well-structured manner, perhaps even including steps that would not be needed in a school-initiated closure process." The evidence showed that this did not happen. The ministry had not sufficiently followed the advice contained in its own publication, Tukutuku Korero, which contained guidelines for schools initiating consultation with a Mäori community.
In analysing the detail of the consultation process, the tribunal adopted features of consultation that were identified in West Coast United Council v Prebble (1988) 12 NZTPA 399 where it was found that "Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done."
The tribunal concluded that the consultation had failed to meet the standards required by the Treaty principle of partnership. The s154 consultation had begun badly with the meeting in November 1995 to present the letter outlining the minister’s decision to consider closing the school. That, and surrounding events, could well have led the school community to believe that closure was the only possibility in the minister’s mind, that it was to happen quickly and that the number of enrolments was the main reason for it. The consultation did not include invitations to discuss all issues about the school’s future, nor an undertaking that the ministry would provide information about all possible alternatives.
A stand off between the ministry and the school community was almost inevitable, but this was largely because of the way in which the consultation process had begun. The ministry had made "no considered attempts" to retrieve the situation, which it could have done, for example, by bringing in other officials "to try to generate discussions at a more constructive level". What occurred was not a lengthy consultation process but a "lengthy process of uncertainty about each other’s views and their implications".
On the evidence before it, the tribunal held that, before the decision to close Mokai school was made in June 1999, the ministry had not properly sought, discussed and understood the school community’s views on the issues raised by the prospect of closure. Accordingly, the requirement that the views of others be considered before a decision is made could not be satisfied.
As a result of the deficient consultation in the school closure process, Mokai Primary School was closed without the Crown being aware of the Mokai community’s views on how the principles of the Treaty relate to the school place in the community. The school had been closed without regard to the exercise of Mokai tino rangatiratanga, and its exercise in relation to the taonga of te reo and mätauranga Mäori, which was "necessarily inconsistent with the requirements of ‘quality kawanatanga’ or ‘good governance’".
As a result of these Treaty breaches, the claimants and their children had suffered prejudice in that the children of Mokai could no longer be educated "in their own community where they are most likely to develop the confidence to manage their lives both within and outside it". Mokai tino rangatiratanga had, consequently, been diminished.
In considering the relief that it should recommend, the tribunal concluded that no option except the reopening of Mokai Primary School could remedy the prejudice suffered. Although the tribunal recognised that the governance and management problems facing the school when it closed would not be solved simply by reopening the school, nevertheless: "with the community’s commitment to the school, and with the Ministry’s commitment to supporting it, ... within a reasonable period of time, the school can be made to work to a standard that satisfies the expectations of all concerned."
Accordingly, the tribunal recommended that Mokai Primary School be ‘reopened’ (established again) as quickly as possible, ideally, to resume teaching during the second term of the school year 2000, subject only to:
• The establishment of a board of trustees; and
• The board’s appointment of a Mäori teaching principal who has the confidence of the school community.
This main recommendation was accompanied by a number of other recommendations, including recommendations that the school be provided with additional support and assistance to meet its governance and other requirements. At a more general level, the tribunal also recommended that:
• The minister initiate a review of the policies and processes involved in determining when and what statutory interventions may be appropriate and the processes to be followed in implementing each of the interventions; and
• The minister, through the ministry and in consultation with Mäori communities, explore additional strategies to increase the ministry’s and schools’ responsiveness to the educational needs of Mäori children.
The tribunal also commented that its findings were not "a challenge to the basic structure and nature of the education system" but signalled that a "fresh focus on how the various elements of the system may be more effectively tailored to respond to the interests of Mäori communities that are recognised by the principles of the Treaty of Waitangi". The most important elements that warranted attention were:
• How the Crown supports schools in difficulty, and when and how it should intervene, rather than leaving schools to rely on the school’s use of support mechanisms;
• Adjusting prevailing definitions and measures of mainstream education so that they are better informed by the knowledge and experiences of Mäori communities.
Memorandum re hearing of Ngäti Pikiao claims
Wai 550. 18 April 2000. Durie J (Chairperson)
In this memorandum, the tribunal considered a request from Ngäti Pikiao to have their claims heard as soon as possible. The tribunal had already heard claims brought by Ngäti Awa, Tüwharetoa ki Kawerau and Ngäti Makino, a hapü of Ngäti Pikiao concerning the Rotoehu forest in an area generally referred to as Otamarakau. Other hapü of Ngäti Pikiao considered that they had an interest in the forest. Accordingly, they sought parity in terms of hearing time to present their case. The tribunal considered that two areas of lands were involved.
Central Lakes lands
These lands were all Ngäti Pikiao lands outside Otamarakau/Rotoehu forest lands. Historical reports had been prepared on these lands. They showed that Ngäti Pikiao retained 90% of this land to the present day. However, the claimants alleged that none of this land was held on behalf of the Ngäti Pikiao generally or could be utilised for general tribal purposes. It was claimed that individualisation of title had occurred without iwi approval and had deprived the tribe of the land, since the duty of land managers was to individual beneficiaries and not the tribe. Also, the Native Land Court was given (and continued to have as the Mäori Land Court) inordinate control over land and land management arrangements. The tribunal noted that historical reports had already been prepared which examined particular blocks. There might however, be no need to go beyond those historical reports if the general complaint about loss of tribal control were made out, as the remedy would be in general rather than specific compensation. Issues relevant to the general claim of loss of tribal control appeared to be:
• Control of individualised land by statutory land council and boards, rather than by the hapü of Ngäti Pikiao, and whether any pressure was applied to have lands placed under these arrangements.
• Sales by meetings of owners through trustees might illustrate the consequences of individualisation. It would also be interesting to see if the best quality lands were sold in this way and poorer quality lands retained.
• Individualisation may have led to small groups cutting their interests out from the tribe as a whole, when those matters had traditionally been matters for tribal planning and approval.
• Consolidations of lands and the combination of several hapü in one block may have diminished the voice of minority hapü.
• Whether Ngäti Pikiao lands or money from land were used in development schemes to assist other tribal groups.
The tribunal thought that it would be possible to determine the extent to which the present system continues to have impact by considering a sample of block titles to assess fragmentation, including looking at numbers of owners, value of shares, number of missing owners, and the extent to which owners remain geographically scattered.
The basic claim appeared to be that: "the Treaty guaranteed Mäori the possession and control of their lands according to their own preferred system, that the Crown imposed a system that did not meet their preferred system for tribal control and that they were and remain prejudiced as a result."
The tribunal directed that appropriate research be prepared for a 1 week hearing.
Otamarakau lands (including Rotoehu forest)
Ngäti Pikiao agreed that historical research to date on the forest lands was sufficient for tribunal purposes, and that the main issue was the extent of Ngäti Pikiao customary interests in the forest apart from that of the Ngäti Makino hapü of Ngäti Pikiao.
The tribunal determined that it should not proceed with a hearing of this aspect of the Ngäti Pikiao claim. If the general claims to the Central Lakes lands were made out, providing an alternative basis for Ngäti Pikiao's Treaty claims, then a hearing on the forest lands "which is likely to lead to strong tribal confrontation", might become unnecessary.
Other courts & tribunals
Te Waka Hi Ika O Te Arawa & Perenara v Treaty of Waitangi Fisheries Commission & Others
CP395/93. High Court Wellington. 7 March 2000. Anderson, Paterson JJ
In the fisheries settlement of September 1992, the Treaty of Waitangi Fisheries Commission took ownership of 50% of Sealord Group Ltd, with Brierleys NZ Holdings Ltd owning the other half. The fisheries commission was given a first right to purchase the Brierleys interest should they wish to sell. Brierleys had recently indicated that they wished to sell their 50% share and were seeking bids.
Mr Perenara and others were concerned that the Brierleys share might not be purchased by the commission, and sought orders 1) effectively preventing Brierleys from giving, or the fisheries commission from receiving or acting on, any notice that Brierleys intended to sell its interests, and 2) any other relief which the court might think fit to give.
Held: there was no rule of law which could be applied to prevent Brierleys issuing notice of intended sale to the fisheries commission. And if the commission did not receive the notice, then it would have no ability to exercise its pre-emptive right.
As to any other relief which might be given, there was no equitable relief which the court could give, since judicial review did not involve the equitable jurisdiction of the High Court. Nevertheless, "in a case of such public significance as the Mäori Fisheries litigation, the historical origins of which involve issues of equity in the broadest sense of that word, and concepts of trusts on a public scale, a Court might have resource to a full armoury of jurisprudential principle to do justice."
However, in this case there had been no wrong in respect of which relief might be given. The fisheries commission had provided an affidavit assuring the court that it had not yet taken any decision on the sale of the Brierleys interest and, should it receive a notice of sale, and the right of first purchase become available in the near future, it would take all relevant matters into consideration. These would include the offer price, and the commercial prudence of a possible purchase in terms of:
• The ability of the fisheries commission to finance the acquisition;
• The best way for the fisheries commission to ensure its investment in Sealords grows in value;
• Commercial risks associated with further investments in Sealords;
• The statutory duty of the commission to represent the interests of Mäori generally;
• Other matters.
In addition, the court thought that it was questionable whether a decision of the fisheries commission over the sale of the Brierleys interest could be subject to judicial review as the exercise of a statutory power of decision, or, if it could be reviewed, whether the courts should review it given that the decision was one involving complex considerations of policy and commercial judgment.
Te Hau v Te Whänau O Rongomaiwahine Trust v Treaty of Waitangi Fisheries Commission and Ngäti Kahungunu Iwi Inc
CP 12/00. 3 April 2000. High Court Wellington. Doogue J
The Treaty of Waitangi Fisheries Commission made a determination that Te Whänau O Rongomaiwahine represented a hapü of Ngäti Kahungunu and not an iwi in its own right. The plaintiffs sought:
• To control how the commission leased rock lobster quota in the Fisheries Management Area CRA 3 for the 2000/2001 year;
• Orders requiring Ngäti Kahungunu to hold on trust the whole proceeds of the lease of wetfish quota leased by it in the 1999/2000 fishing year.
The essential issue was whether it was necessary to make the orders to protect the plaintiffs’ position on behalf of Rongomaiwahine.
When the fisheries commission announced its intention to lease the quota for the 2000/2001 year, it advised that it would lease to iwi representative organisations, and do all it could to assist iwi in resolving disputes connected with the lease round. Hapu were not mentioned. The plaintiffs argued that this necessarily prejudiced them in the lease round. The fisheries commission argued that it had acknowledged that there was a dispute between Ngäti Kahungunu and Te Rongomaiwahine and that the latter claimed iwi status, and that there remained a possibility that the disputed quota would be held in trust pending a full hearing of the matter before the courts, as had happened in other years.
Held: the first application sought (concerning rock lobster) was premature in that the fisheries commission had recognised that Rongomaiwahine claimed to be an iwi and that this had yet to be heard in a full hearing. In the meantime, the commission could proceed in its duty to determine that quota should be made available, and if it was made available to Ngäti Kahungunu then that could be done in a way which protected the position of Rongomaiwahine. If Ngäti Kahungunu should take proceedings to avoid this result, then interim relief might be considered for Te Rongomaiwahine, but for now the application was premature.
With regard to the wetfish quota, Ngäti Kahungunu had offered to hold 50% of the net proceeds of the lease round on trust, but the plaintiffs sought that 100% be held on trust. However, there was no justification for this position on the papers before the court and the application should be declined.
The court made comment on other matters, including the fact that, in order to have the court make interim orders of this type, an undertaking as to damages was required (see for example Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission CA224/93) and it had not been given.
If the fisheries commission should, after the disputes procedure had been gone through, act to allocate quota in a way which did not protect the Rongomaiwahine position, then Rongomaiwahine might apply for an order for protection of their interests.
The plaintiffs had persisted in pursuing interim orders through court proceedings when matters might have been resolved short of a hearing, and despite the conciliatory position taken by the fisheries commission and Ngäti Kahungunu to the complaints of Rongomaiwahine. Consequently costs beyond the normal scale would apply ($3250 per defendant plus disbursements).
Ryder & Others and Te Kotahitanga O Te Arawa Waaka Trust Board & Others v Treaty of Waitangi Fisheries Commission
CP171/97. 6 April 2000. High Court Wellington. Anderson, Paterson JJ
These proceedings concerned the legal status and powers of fisheries commissioners appointed under ss29 & 31 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, who had continued in office beyond their appointed times and the effect (if any) on the report of those commissioners on the allocation of pre-settlement fishing quota and other assets to iwi which was about to be sent to the Minister of Fisheries by the Treaty of Waitangi Fisheries Commission.
The fisheries commissioners were appointed by the Governor-General on the advice of the Minister of Mäori Affairs. The warrants of the commissioners expired in June 1996. The allegation was that the minister failed to advise the Governor-General on fresh appointments. It was also alleged that this affected the legality of the report on the allocation of quota to iwi which was about to be forwarded by the commission to the Minister of Fisheries (who may recommend adjustments before the allocation scheme is implemented). It was argued that the report itself was invalid, and that the commission had no power to present it to the Minister of Fisheries for his consideration.
Thirteen commissioners had originally been appointed in May 1993, and all warrants expired in June 1996. In mid 1996 the Minister of Mäori Affairs had undertaken consultation and presented to the Cabinet Appointments and Honours Committee a proposal for the reappointment of most of the existing commissioners, with three new appointments.
Four of the negotiators of the 1992 fisheries settlement challenged the proposal in the High Court, alleging insufficient consultation. Since there was provision in the legislation for existing appointments to continue pending reappointment or replacement (s31), the Minister of Mäori Affairs and Cabinet decided to leave the matter to the incoming government. The High Court proceedings were dismissed by agreement on this basis.
In early 1997 the new Minister of Mäori Affairs (Hon Tau Henare) considered the issue of appointments, at the same time as the Privy Council determined that the High Court should reconsider a judgment that allocation should be only to iwi – not including non-traditional groups. There was a meeting of most groups involved in the issue, and an agreement to desist from litigation for the time being and work towards allocation (the current plaintiffs were not however parties to that agreement). The minister was advised by officials that that agreement provided a basis for the current commissioners continuing in office until June 1997 when they would report on a scheme of allocation. In the meantime, it was recommended that consultation about new appointments should be undertaken.
Officials undertook consultation about appointments and reported to the minister in May 1997. In April 1997, one of the parties to the fisheries litigation formally raised the issue of the validity of the continuing appointments of the commissioners, and was soon joined by others. The fisheries commission issued a full consultation document on its proposals for a scheme for the allocation of quota in July 1997, and consultation on that document commenced in September and October 1997.
Also in July, the minister was given a short list of nominees for the fisheries commission. A Cabinet paper was prepared in September 1997. However, in that same month the minister consulted with fellow ministers and concluded that appointments should wait until the fisheries commission had further consulted on its allocation proposal. The minister maintained this stance until November 1998 when the fisheries commission released its allocation proposal in a near final form for consultation. In this period the preliminary issue of whether allocation should be only to traditional iwi had been heard, judgment delivered, and further appeals lodged.
In March 1999 the fisheries commission released a report on its preferred approach to allocation which it intended to report to the Minister of Fisheries. A High Court order was obtained preventing the fisheries commission from reporting to that minister.
There was then talk of a possible out of court settlement, and the Minister of Mäori Affairs felt that it would be disruptive to proceed with new appointments at that stage. However, in July 1999, nominations for new commissioners were advertised. A Cabinet paper recommending new appointments was prepared, but it was decided to once again wait until after the general election. It was again noted that there was provision in the legislation for existing appointments to continue pending reappointment or replacement (s31).
As these proceedings were commenced, a full consultative process on appointments was underway. It was hoped to have fresh appointments in April 2000.
Held: this was not a case of total inactivity by the Minister of Mäori Affairs. Court proceedings by the fisheries negotiators, the conventions applying to caretaker governments and the minister’s decision not to hinder the contentious issue of allocation had delayed the process.
Sections 29-31 provided that appointments should not exceed 4 years, but commissioners could be reappointed without limit, and they could continue to hold office on the expiry of their term. The legislation did not provide that the commissioners could be dismissed (expect for misconduct etc) until the Governor –General had been advised on a replacement.
It was accepted by the Crown that a decision of the Minister of Mäori Affairs not to recommend reappointments could be challenged in some circumstances. But it was contended that the ability to challenge this power of recommendation was very limited, and the minister could only be challenged if he was acting in bad faith or attempting to thwart the purposes of the Act. In this case he had acted in good faith.
The plaintiffs argued that there was a clear requirement to consult within a reasonable time, which had passed, and no discretion beyond that was involved.
The court found that the appointments process must be considered against the background legislation which emphasises consultation and accountability to Mäori by the fisheries commission. The fisheries commissioners had important functions to facilitate the entry of Mäori into fishing and to manage the pre and post settlement assets and the joint venture with Brierley Investments Ltd. The requirement of consultation with Mäori over appointments to the commission recognised these important functions.
The Act did not authorise re-appointments without effective consultation. The ability for commissioners to remain in office pending new appointments or reappointment was a transitional provision only and could not replace the requirement for full consultation and recommendations on appointments. The legislation required that consultation must be followed by advice to the Governor-General and appointments or reappointments would follow from that. The minister could not, after consultation, himself decide that the present commission should continue and leave it at that.
The duty of consultation on the minister arose no later than the expiry of any commissioner’s term. Reasonable time must be allowed for the consultation, but the courts could review a delay which was "manifestly excessive."
In this case the court would not comment on delays arising from the Cabinet convention not to make fresh appointments immediately prior to a general election.
However, with regard to the other delays, the minister was not legally justified in deferring consultation on new appointments in the hope that the fisheries disputes would be settled. Mäori were entitled to be consulted within the last 4 years about the appointments of the persons who would be responsible for the fisheries settlement. Accountability was thwarted if a manifestly excessive time passed between the expiry of appointments and consultation and advice to the Governor-General on reappointments . Probably since September 1997 and certainly by mid 1998, two years after the term of all members had expired, a manifestly excessive period had passed, and the minister must be considered to be in breach of the duty implied by the legislation. Mäori continued to be "effectively disenfranchised" in respect of the composition of the commission.
However, the court exercised its discretion and witheld relief because a process of reappointments was already underway.
As for the contention that, pending fresh appointments or reappointments, the existing commissioners had no right to complete their report on allocation and submit it to the Minister of Fisheries for his consideration. There was nothing in the Act to suggest that the powers of the commissioners, or any part of them, were in any way limited while reappointments were pending. They continued to have full power to act, and indeed was obliged to act, nothwithstanding the breach of duty by the Minister of Maori Affairs. Nevertheless, with regard to the report on allocation of quota:
"How the Minister of Fisheries should view any Report, including the weight to be attached to it in view of the remoteness of consultation concerning the appointment of the Commissioners, is for the Minister. No doubt the fact that none of the present members has been confirmed by consultation, advice by the Minister of Mäori Affairs and vice-regal appointment, for nearly eight years would be given appropriate consideration."
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