May 2000 Contents

Waitangi Tribunal

Expanding the boundaries of Tauranga & Kaipara claims districts

Urgent hearing re Taranaki petroleum resources

Other Courts and Tribunals

Court of Appeal – Ngäti Apa claims within Ngäi Tahu boundaries

Environment Court – consultation with Mäori over subdivision

Other

New instructions re legal aid for Treaty claims

 

Waitangi Tribunal

Applications to extend the Tauranga Moana and the Kaipara District Inquiries

Wai 215, doc 2.56; Wai 674, docs 2.241 and 2.242. 20 March 2000, 7 May 2000

The Waitangi Tribunal has recently considered applications by claimants in the Tauranga Moana and the Kaipara district inquiries for extensions to those inquiry districts. Both applications were declined.

In the Tauranga Moana inquiry district, the claimants in Wai 664, the Waitaha Tribal Estate claim, sought an extension of the eastern boundary of the inquiry district to the Waiari River (to the east of Te Puke), which was said to be the south-eastern boundary of the claimants’ rohe. The Tribunal had based the inquiry district on the 19th century confiscation line (the eastern boundary of each extended to Papamoa), and this, the claimants argued, was "offensive and artificial". The confiscation line had been drawn by the Crown and bore "no relation to tangata whenua interests on the ground". Its use to define the Tauranga Moana inquiry district perpetuated the original wrongs inflicted upon Waitaha by the Crown. As a result, the inquiry district split Waitaha’s interests down the middle, "as the raupatu did originally". The Waitaha claimants also advised the tribunal that on account of their whakapapa and history, they considered that they had a closer affinity to Tauranga Moana than to Te Arawa.

At the hearing held to consider the application, other claimant groups expressed a mixture of support for and opposition to the application. A concern was expressed by counsel for Ngäi te Rangi about the lateness of the original application and the delay in applying for it to be heard. A submission by counsel for Tapuika stated that Tapuika also claimed part of the area that Waitaha were seeking to have included in the Tauranga Moana district inquiry and that that was "a point of conflict with Waitaha". Crown counsel advised that it had no position on the matter and would abide the tribunal’s decision.

In its decision, the tribunal stated that the:

"Tauranga Moana district has long since been fixed by the Government’s actions in the passing of three legislative enactments, the New Zealand Settlements Act 1863 and the Tauranga District Lands Acts of 1867 and 1868, and its subsequent use of those Acts to justify the initial taking of all of the lands of the Tauranga Moana people, and thereafter changing the nature of the tribal ownership of those lands which were returned to Tauranga claimants. The Raupatu line defines today, in a clear and long recognised way, the parameters of this Tribunal’s inquiry and jurisdiction with regard to the particular actions of the Crown referred to above, and the resultant claims of alleged Treaty breaches."

Accordingly, the tribunal found that there were "compelling reasons to confine this already very large inquiry to the land issues contained within the raupatu boundary lines". The tribunal recognised that Waitaha, along with claimants elsewhere, would have to present their claims partly in one inquiry district and partly in another but it did not accept that that would cause the claimants any prejudice "so long as each tribunal is fully informed of relevant circumstances, and claims are placed in adequate context". The tribunal would consider Waitaha evidence relating to matters outside the Tauranga Moana inquiry district insofar as it was necessary to provide a context for the aspects of their claim relating to matters within the inquiry district and to provide the tribunal with "a full and rounded account of Waitaha’s grievances and of the outcomes of events within the Tauranga boundaries, as they affected (or were affected by) matters outside the boundary". While the tribunal would not make findings in relation to matters outside the Tauranga Moana inquiry district, it could be necessary for the tribunal to take account "of the overall situation and outcomes for Waitaha people when making its findings with regard to matters inside the boundary".

In reaching its decision, the tribunal noted Crown counsel’s statements that the Crown wished to settle the whole of Waitaha’s claims and did not believe that it was necessary to wait for a tribunal inquiry into their Te Puke claims. If only part of Waitaha’s claim had been heard by the Tauranga Moana sitting of the tribunal, or if their claim had been heard in parts by more than one tribunal, that would cause them no prejudice in terms of the settlement of their claim. The tribunal was also concerned that granting the extension could draw the Waitaha/Tapuika conflict into the Tauranga Moana inquiry and have a "significant impact" on that inquiry’s already very large hearing programme. Its decision meant that there would be no further need for involvement in the Tauranga Moana district inquiry from Tapuika or any other group outside the boundary.

In the Kaipara district inquiry, Kawerau a Maki (Wai 470) sought an extension to include West Auckland within the inquiry. The Kaipara sitting of the tribunal estimated that the extension would delay the completion of hearings by at least a year. It also noted that inquiry districts were:

"normally not consistent with customary boundaries (or rohe). When the Tribunal drew inquiry boundaries, this almost always required some claimant groups to appear in more than one inquiry."

In giving the tribunal’s decision, the presiding officer, Dame Augusta Wallace, stated that the tribunal must consider the interests of all parties, as well as the applicant’s interests. It was in the interests of all parties (including the applicant’s) to complete the Kaipara hearings by mid-2001, and those interests outweighed those expressed by the applicant. While the tribunal was mindful of the burden that faced claimants who were obliged to appear in more than one inquiry, it was possible that almost half the claimants appearing in the Kaipara inquiry were in that position. The tribunal did not believe that subsequent appearances in other inquiries would necessarily disadvantage those claimants.

The tribunal also noted that in other inquiries, a number of applications had been made to adjust the inquiry district boundaries. However, only one of these had been granted and in that case the application had been made before the first hearing. The tribunal would consider granting an extension only if the application were filed early in the inquiry, with compelling grounds.

 

Memorandum-Directions re Taungatara-Tariki-Araukuku (Nga Ruahine) Petroleum, Natural Gas and Minerals claim

Wai 796. 12 May 2000. Joanne Morris

Nga Ruahine sought an urgent hearing of their claim to petroleum resources. Their claim related to all petroleum resources located within their rohe (including resources covered by the Kupe offshore licence). These resources were claimed to be:

• Taonga tuku iho of Nga Hapü o Nga Ruahine;

• Subject to customary law of Nga Ruahine and a natural incident of their rangatiratanga and mana over their rohe;

• Subject to native title in accordance with the doctrine of aboriginal title.

Urgency was sought because the first report of the Waitangi Tribunal on the Taranaki claims, Kaupapa Tuatahi of 1996, was silent on the issue of Mäori ownership of petroleum, but invited parties to seek further hearings on the whole or any aspect of the claims, if proposed negotiations for settlement with the Crown were unsuccessful or would benefit from consideration of particular items.

In addition, three claimant groups in Taranaki had signed Heads of Agreement with the Crown and others were close to that stage. The Heads of Agreement were signed on the basis that the Crown would "not consider any right in petroleum as a means of redress of Treaty grievances and that future claims to petroleum by iwi will be precluded".

It was argued that the conclusion of those settlements would create a precedent for other Taranaki iwi. It was also argued that Taranaki iwi had a "right to know the Tribunal’s view on the matter of Mäori ownership of petroleum" before they concluded a settlement because it was expected to be an important means of compensation if the ruapatu claim proved successful – particularly given the little Crown land available for settlement. In an interim ruling in 1990 the tribunal commented that in relation to petroleum, Taranaki claimants have a "case to be argued, either to a share of the resource or to compensation from that resource as a local asset within the de facto control of the Crown."

Urgency was also sought on the basis that the Crown was proposing to privatise its 11% interest in the Kupe licence. Once a sale agreement was entered into that part of the resource would not be available as redress.

The Crown opposed urgency on the basis that:

• The Crown was not currently considering any offers to privatise its interest in the Kupe licence, and the conditions surrounding that licence made it a particularly unsuitable asset for Treaty redress in any event.

• The Crown had owned and managed the petroleum resource in the national interest since 1937, and it was consistent with that ownership that it should not be available in Treaty settlements. In addition, there were problems in using petroleum in settlements because of the difficulty of assessing an underground resource and its development potential and accordingly the contribution it could make to a Treaty settlement.

• The Crown could settle claims by means other than an interest in the petroleum resource, and these would give an asset of more certain value, and iwi could use the cash portion of a settlement to buy interests in petroleum licences.

• The Crown had agreed with Taranaki iwi to issue protocols concerning consultation in respect of petroleum management.

The tribunal decided to grant an urgent hearing. The Kaupapa Tuatahi report had explicitly recognised that future hearings might be required to expedite settlements of the Taranaki claims, including further consideration of particular items. The tribunal had in the Kaupapa Tuatahi report commented that, since Taranaki iwi would not receive in settlement full reparation based on usual legal principles, they should not be required to sign a full and final release for compensation given as if usual legal principles applied. The two matters to be considered were whether the claimants were likely to be prejudicially affected to a significant extent by pending Crown actions and whether the claimants were ready to proceed with an urgent hearing.

Since there was no immediate likelihood of the Crown altering its position on the Kupe licence that matter should be put to one side for urgency consideration. Considering the Crown settlement policy in Taranaki, it was pursuing a policy of full and final settlements, and those would "very likely" create a "benchmark" for later settlements. The need for consistency in a policy of full and final settlements would mean that Nga Ruahine could be prejudiced if other Taranaki settlements which negated any interest in petroleum reached finality before the Nga Ruahine claim to petroleum was heard.

The claimants had nearly completed a research report and were ready to go to hearing. The report (by Richard Boast) was to be filed by the 19 May, with a hearing and report to occur within the next 6 months, so as to minimise any prejudice to other Taranaki claimants. It would be helpful if the Crown were to undertake not to conclude settlements with other Taranaki claimants pending the report of the tribunal on this issue.

 

Other courts & tribunals

Ngäti Apa Ki Te Waipounamu Trust v R & Mäori Appellate Court & Te Runanga O Ngäi Tahu

CA154/99. Court of Appeal. 8 May 2000. Elias, Gault, Keith, Blanchard, Tipping JJ

Ngäti Apa claimed on several grounds that a decision of the Mäori Appellate Court that they had no customary interests in certain lands in the South Island. In these proceedings, the Court of Appeal was asked to reconsider a High Court decision to struck out the claims (for the High Court decision see Mäori LR August 1999 p3). Rangitane interests had previously applied for judicial review of the MAC decision, and that claim had been dismissed (Sadd & Te Runanga A Rangitane v Waitangi Tribunal, see Mäori LR June 1994 p3). Ngäti Apa was concerned that, if the MAC decision stood, it would prevent the Waitangi Tribunal from investigating their claims to some South Island lands. The relief sought was orders setting aside the decision of the MAC and a declaration that the Waitangi Tribunal could hear the Ngäti Apa claims.

Background

In 1860 the Crown acquired 7 million acres of land on the West Coast of the South Island by the Arahura Purchase. Ngäti Apa were signatories to the deed of purchase and received some purchase money, although the majority went to Ngäi Tahu.

Ngäti Apa brought a claim to the Waitangi Tribunal concerning a small part of the area covered by the Arahura purchase, and also part of an area covered by another deed, the Kaikoura purchase of 1859. They did not claim an exclusive interest in these lands in customary terms.

During hearings of the Ngäi Tahu claims, the Waitangi Tribunal became aware of overlapping claims by other tribes and sought a decision on tribal boundaries under s6A Treaty of Waitangi Act 1975.

In November 1990 the Mäori Appellate Court ruled that in 1860 Ngäi Tahu had sole ownership according to customary law principles of take and occupation or use of all the land in the Arahura and Kaikoura purchases.

The appellant, the Ngäti Apa trust, had not been a party to that hearing. A body known as Te Runanganui O Te Tau Ihu O Te Waka A Maui Inc purported to represent Ngäi Apa interests among others, but the Ngäti Apa trust claimed that no formal mandate had been given to that body. The focus of that hearing was whether groups other than Ngäti Apa (Ngäti Rarua, Ngäti Tama, Te Atiawa) had gained rights in the purchase areas by virtue of tribal invasions in the 1830s. Ngäti Apa interests were mentioned, but the MAC found that any interests in Arahura amounted to no more than a right of residence granted by Ngäi Tahu.

In 1991 the Waitangi Tribunal reported favourably on the Ngäti Tahu claims, including claims about Crown breaches in respect of the Arahura and Kaikoura purchases.

Following a further report from the Waitangi Tribunal (in September 1991) on the need for some statutory basis for tribal representation for Ngäi Tahu, the Te Runanga O Ngäi Tahu Act 1996 was enacted. It constituted a Ngäi Tahu authority for settlement purposes with authority over the takiwä (district or region) of Ngäi Tahu according to the boundaries determined by the MAC.

Subsequently, the Ngäi Tahu Claims Settlement Act 1998 gave effect to a deed of settlement between Ngäi Tahu and Crown signed in November 1997.

The High Court had accepted that the 1996 and 1998 Acts did not explicitly exclude the claims of other iwi within the takiwä of Ngäi Tahu, but did find that the two Acts implicitly excluded such claims as they were based on the understanding that Ngäi Tahu claims were exclusive over their takiwä and claims by other tribes were non-existent according to the decision of the MAC.

Held: the claims of Ngäti Apa should be in part struck out and in part retained. Their Honours issued separate decisions to reach that result.

Judgment of Elias J

The strict matter to be determined in this appeal against the decision to strike out the claims was whether the 1996 and 1998 Acts effectively prevented any challenge by way of judicial review of the decision of the MAC. The court was not here examining the merits of that challenge or whether, if the 1996 and 1998 Acts had no impact on the Waitangi Tribunal, the tribunal would be bound by the MAC decision as to boundaries (something Elias J thought was a "doubtful" proposition).

Even if the High Court was correct that the 1996 and 1998 Acts had the effect argued for, and claims relying on entitlement to land within the takiwä of Ngäi Tahu were barred by statute, the Court of Appeal could not speculate on what claims of Ngäti Apa might still survive. The nature and extent of surviving claims would depend upon Treaty promises and the Waitangi Tribunal had exclusive authority to determine such matters (s5(2) Treaty of Waitangi Act 1975).

On preliminary issues, the proceedings should not be struck out because they were attempting to relitigate issues already determined by the High Court in its decision on the Sadd case. Ngäti Apa were not a party to those proceedings, which were brought by Rangitane and concerned that tribes distinct claims. Nor should they fail on the basis that all Ngäti Apa claims were made "in right of ownership" in the lands concerned and that the MAC had found that Ngäti Apa rights in the lands in question were at the behest of Ngäi Tahu. The claims sought recognition of Ngäti Apa’s mana in the lands and that would operate as a determination of the standing of Ngäti Apa in the region and would affect not only its Waitangi Tribunal claim but also its standing in other matters of interest to the tribe on the West Coast.

The Te Runanga O Ngäi Tahu Act 1996, which established a statutory entity to represent Ngäi Tahu, provided that the takiwä of Ngäi Tahu should be the area described in the 1991 boundaries decision of the MAC (s5/1996). Takiwä was not defined in the Act, but translated as ‘district’ or ‘region’. The use of the word in preference to "rohe" seemed to arise "because of the way Ngäi Tahu lived, travelling to far-flung parts of their tribal area to gather food and other resources on a seasonal basis, rather than maintaining permanent settlements throughout the area." Thus the Mäori Appellate Court’s decision contrasted Te Rauparaha’s cultivations and trading activities with the Europeans with "the more nomadic lifestyle of other tribes whose territory may better be described as takiwä rather than rohe."

It was argued that the boundaries in the 1996 Act excluded any other tribal claim within them. However that was not the effect of the statute. The Act did not refer to other tribes at all. The fact that it was a private Act suggested it was to affect Ngäi Tahu only. The identification of the takiwä in s5 was to address the need to give a geographical definition to the area over which Ngäi Tahu might be affected, because the Act required consultation with Ngäi Tahu when its interests were affected (s15).

Counsel for Ngäi Tahu had accepted that "theoretically" 2 tribes could hold rangatiratanga in the same district. The case which the Waitangi Tribunal stated to the MAC contemplated that possibility for the South Island, when it asked whether more than one tribe might have ‘ownership’ rights.

Consequently, the statutory recognition of the takiwä of Ngäi Tahu was for the purposes of the 1996 Act only. It prevented anyone other than the runanga representing Ngäi Tahu in that area, but did not prevent other tribes asserting interests in land within that area.

As to the Ngäi Tahu Claims Settlement Act 1998, while Ngäi Tahu asserted that the Act was inconsistent with the assertion of any interest in land by a tribe other than Ngäi Tahu within the takiwä of Ngäi Tahu, the Crown had submitted that the Act would not preclude claims to some interest less than ownership of land. Any remedy to another tribe of land within the takiwä was not however possible, because of the comprehensive arrangements in the legislation with regard to land.

Looking at the detail of the legislation, it did not exclude other tribal interests, in particular:

• The Short Title was the Ngäi Tahu Claims Settlement Act – referring to Ngäi Tahu only.

• The Preamble, which mentioned the Arahura and Kaikoura purchases and the transfer of land from Ngäi Tahu people to the Crown, did not purport to record that no other group had interests in those lands.

• The Crown apology (s6/1998) mentioned the failure to protect Ngäi Tahu use and ownership of their land – but gave no boundaries.

• The apology also recognised Ngäi Tahu rangatiratanga and mana over lands their defined takiwä, but that did not necessarily exclude other tribes, as counsel for Ngäi Tahu had conceded that rangatiratanga could be held by two tribes in the same district.

• The separate use of the terms "use and ownership" and "mana and rangatiratanga" in separate parts of the apology suggested that the Act did not treat those concepts as equivalent. Even if the mana and rangatiratanga over lands within the takiwä were intended to be exclusive to Ngäi Tahu, use and ownership or occupation might not be, and might found a claim to the Waitangi Tribunal (occupation was the foundation of Ngäti Apa’s claim).

• Ngäi Tahu claims were specifically defined by the Act (s10/1998) and did not include claims of any other iwi, including the Ngäti Apa claim (which was filed in 1995).

• In terms of the finality of the settlement, in particular ss461-462/1998 which provided that the settlement of the Ngäi Tahu claims should be final and that the Waitangi Tribunal might not inquire into the Ngäi Tahu claims or the 1998 Act, those provisions were limited to Ngäi Tahu claims. It would have been easy for the legislation to have provided that no claim by any tribal group might be brought in respect of the breaches of the Treaty arising out of that tribe’s use or occupation or ownership of land within the takiwä of Ngäi Tahu, if that had been intended. But that had not been done.

• It was not significant that Ngäti Apa claims had not been specifically reserved under the 1998 Act, in the same way that Hauraki claims were reserved under the Waikato Raupatu Claims Settlement Act 1995. Had the Hauraki claims not been so reserved, they would have been explicitly included in the settlement of all claim brought by "Waikato descendants of the Tainui waka" which were settled by that 1995 Act. Exclusion was not necessary in this case because Ngäti Apa claims did not fall within the Ngäi Tahu claims.

• The 1998 Act did however give Ngäi Tahu the first right of refusal over the disposal of all Crown land within the takiwä of Ngäi Tahu. That would present an impediment to Ngäti Apa receiving any reparations in terms of those Crown lands should their claim to the Waitangi Tribunal be successful. But that would not prevent Ngäti Apa seeking reparation in terms of land which Ngäi Tahu might not exercise its right of first refusal over, nor would it affect the potential range of remedies which might be available to Ngäti Apa should their claim be upheld by the Waitangi Tribunal (the claim was about a breach of Treaty obligations of protection and a range of remedies could be provided which could be consistent with the settlement made with Ngäi Tahu).

• The provisions in the Settlement Act 1998 for "statutory areas" of special significance to Ngäi Tahu and "statutory acknowledgments" of Ngäi Tahu links to those areas (Part 12, ss206-220) was a "careful statutory scheme" which provided that statements of association should be taken into account but should not in any way affect the interests of any person not a party to the settlement (s218-219).

• Similarly, the provision in the 1998 Act for the recognition of particular landmarks of importance to Ngäi Tahu in conservation areas and for their management as "töpuni" expressly did not affect any third party (Part 12, ss239-252). This was also true of provisions relating to nohoanga and Whakapoai land in Westland.

"This is the scheme of the Settlement Act. It implements the settlement with Ngäi Tahu. It precludes further claims by Ngäi Tahu. The settlement of the Ngäi Tahu claims is final. The benefits specifically conferred upon Ngäi Tahu cannot be challenged, but beyond the benefits expressly conferred upon Ngäi Tahu, no rights or interests of anyone not party to the deed of settlement are affected. The recognition of Ngäi Tahu’s interests are specific and carefully limited in effect."

The scheme of the Act did not preclude a claim by Ngäti Apa to the Waitangi Tribunal based on its interests in land, even if within the takiwä of Ngäi Tahu. More important, it did not, expressly or by necessary implication, deny Ngäti Apa standing to seek judicial review of the decision of the MAC.

The courts will be cautious in ascribing to Parliament an intention not explicitly stated (Richardson v Austen (1911) 12 CLR 463, 470). Even if Parliament had assumed that no other tribes had an interest within the takiwä of Ngäi Tahu (an assumption almost impossible to draw from the statute which is concerned with a settlement with Ngäi Tahu specifically) the existence of an assumption does not enact it, unless the provisions would only be workable if Parliament’s assumption were read into the law (West Midland Baptist Assoc v Brimingham Corp (HL) [1970] AC 874, 898). That was not the case here as the 1998 Act was workable without such an assumption. Moreover, any such implication of purpose would have to be "irresistible" since "basic rights" were involved. If Ngäi Tahu were right in their arguments, Parliament had legislated to deny Ngäti Apa rights of access to the courts and the Waitangi Tribunal and had denied Ngäti Apa of status as people of mana in their West Coast lands. Accordingly, rights to natural justice and cultural rights protected by the NZ Bill of Rights Act 1990 (ss27 & 20) were affected, and those could not be overridden by general or ambiguous words in a statute (R v Home Secretary ex parte Simms (HL) [1999] 3 WLR 328, 341, R v Home Secretary ex parte Pierson [1998] AC 539, 575. And the NZ Bill of Rights Act 1990 required an interpretation consistent with the rights in the Bill of Rights (s6).

Parliament had not expressly enacted that Ngäti Apa could not assert any Treaty or customary interest in West Coast lands, nor expressly purported to affect Ngäti Aapa’s status or deem land within the takiwä of Ngäi Tahu to be exclusive of Ngäti Apa interests. No such implication was necessary to make the 1998 Settlement Act work and no benefits conferred on Ngäi Tahu by that statute could be affected by the Ngäti Apa claim.

Accordingly Ngäti Apa had standing to challenge the MAC determination and should be able to bring that claim.

Gault J

The challenged order related to sole ownership – and Ngäti Apa must be seeking to challenge the ownership of Ngäi Tahu. It might be that Ngäti Apa might establish that their Treaty rights had been breached by the original acquisition of land "or by the subsequent denial to them of their right to demonstrate their interest in the land and to have their grievance remedied" but the High Court could not now set aside the MAC order, since that had been incorporated into the 1998 Settlement Act. Section 6 specified that Ngäi Tahu were ‘the’ tangata whenua and held tino rangatiratanga within the takiwä of Ngäi Tahu.

In addition, the first right of refusal over Crown lands within the takiwä was inconsistent with any right of ownership interest in Ngäti Apa.

Ngäti Apa would not be bound by the decision of the MAC if they were not a party to that decision. But their statement of claim contemplated that they were affected by it.

Ngäti Apa conceded that if they sought any recommendations from the Waitangi Tribunal inconsistent with the 1998 Settlement Act then legislative amendment would be required – yet their attack on the decision of the MAC appeared to be inconsistent with the 1998 Settlement Act.

If the Ngäti Apa claim was for an interest less than ownership then the decision of the MAC was irrelevant. Either way, the claim against the court should be struck out.

While this result might mean that there had been a breach of Ngäti Apa’s Treaty rights in that they had been denied the opportunity to advance a claim to land because it was inconsistent with the 1998 Settlement Act, that was not a matter for the courts to consider, since they were bound to give effect to statutes.

Keith J

The Te Runanga O Ngäi Tahu Act 1996 was a private Act concerned with important structural matters internal to Ngäi Tahu and had no significance for the current case except that it defined the takiwä of Ngäi Tahu, which subsequently achieved further importance when it was adopted in the Settlement Act 1998 (and also in the Ngäi Tahu (Pounamu Vesting) Act 1997).

Neither the 1996 Act nor the Settlement Act 1998 gave direct general effect to the part of the ruling of the MAC which referred to the "sole rights of ownership" for Ngäi Tahu in the area of the Arahura and Kaikoura deeds of purchase.

Ngäti Apa were now seeking both that the MAC decision be set aside and that the court declare that the Waitangi Tribunal could hear the Ngäti Apa claim to these West Coast lands. Their claim to the Waitangi Tribunal went beyond the 1990 decision and questioned parts of the Settlement Act 1998 (then a bill) recognising distinct rights, interests and other matters – such as values – in Ngäi Tahu by way of statutory acknowledgments, töpuni and other mechanisms. That detail of the Ngäti Apa claim to the Waitangi Tribunal, when read with the "carefully written" savings provisions of the Settlement Act 1998 showed what was "resoundingly obvious" that Ngäi Tahu did not have "sole rights of ownership" within its takiwä in 1990, 1996 or 1998 (and the MAC did not purport to say this).

The 1996 and 1998 Acts only made direct use of the boundary line indicated in the MAC decision, not other parts of that decision. The High Court had felt it necessary to refer to an implication that something more was intended.

The provisions in the 1998 Act relating to the finality of settlement and limiting the jurisdiction of the courts and the Waitangi Tribunal to examine the settlement (ss461 & 462) did not prevent in any absolute way the presentation of Ngäti Apa claims to any court or tribunal, including the Waitangi Tribunal. The courts and the Waitangi Tribunal could also properly consider whether a claim by another tribe could be consistent with the 1998 Act.

It was not possible to say that Ngäti Apa could not possibly succeed in their claim for a declaration that the Waitangi Tribunal might still hear their claim to these lands. Mana was a component of the claims and that was important in relation to consultation with local authorities. Ngäti Apa saw mana as an essential element in their claims.

In so far as the MAC referred to the "sole rights of ownership" of Ngäi Tahu in their takiwä, the 1996 and 1998 Acts did not incorporate that matter in any general or direct sense (although the 1998 Act "did plainly recognise and confer particular confined rights of ownership of land on Ngäi Tahu"), but the boundary was a different matter however. The broad jurisdiction of the courts might allow the possibility of a declaration in respect of part but not all of the MAC decision, and in respect of the ability of the Waitangi Tribunal to hear the claim. But to the extent that the proceedings sought to set aside the boundary decision arising from the 1990 decision and included in the 1996 and 1998 Acts they must fail.

Blanchard and Tipping JJ

The following matters were significant:

• Ngäti Apa alleged that Ngäi Tahu was substantially and adequately funded throughout the hearing before the MAC (which was in the middle of hearings of their claim before the Waitangi Tribunal), whereas they were not well funded or prepared. None had at that time made any claims to the Waitangi Tribunal or had received any research assistance.

• The Waitangi Tribunal itself has expressed the view that s6A may not be consonant with rights protected by the Treaty and has questioned the correctness of the MAC approach and the appropriateness of the Waitangi Tribunal referring questions of boundaries to the MAC for determination.

• The Crown, in reply to correspondence from Ngäti Apa, had admitted that the settlement with Ngäi Tahu would not prevent other iwi bringing claims.

• Ngäti Apa unsuccessfully challenged the Settlement Bill in the select committee.

The order was an "integral part" of the Settlement Act 1998, and setting it aside would "completely undermine an essential element" of the Settlement Act. The court would be used to attack Parliament’s decision to accept the MAC order. And this would come close to a breach of article 9 Bill of Rights 1688 (remaining in force in NZ through the Imperial Laws Application Act 1988).

However, this would not prevent the court making a declaration that the order of the MAC was made in breach of natural justice or some other procedural requirement. Formally setting aside the order would remove a fundamental premise of the Settlement Act, whereas a declaration would simply inform Parliament that what it thought was a secure foundation for the Settlement Act was not in fact secure.

In terms of Ngäti Apa’s claim to the Waitangi Tribunal, s6A Treaty of Waitangi Act 1975 does not make a finding of the MAC as to boundaries binding on a person who is not a party to them. If an order was invalidly made, it would not be binding on anyone, once the invalidity had been established. The adoption of the order by Parliament in this case meant that the order could not be challenged (a change in legislation would be required, and if the tribunal were to make any recommendations on that score it would have to consider the right of first refusal over land which the Settlement Act gave to Ngäi Tahu). However, this would not prevent Ngäti Apa from alleging in its claim to the Waitangi Tribunal that the MAC order and legislation were in breach of its Treaty rights. In this sense, there was no need to have the High Court declare that Ngäti Apa could attack the MAC order in its claim before the tribunal. It could do that anyway and the tribunal could make such recommendations on that matter as it saw fit (since its powers are recommendatory only). However, the Court of Appeal should not prevent Ngäti Apa seeking declarations from the High Court if it wanted to and that part of its court proceedings should stand.

Orders of the court

The combined effect of the judgments was that:

• The part of the Ngäti Apa statement of claim asking the High Court to set aside the order of the MAC of November 1990 was struck out (leaving intact the request for a declaration that the Waitangi Tribunal had jurisdiction to hear the Ngäti Apa claim).

• Ngäti Apa were given leave to amend their claim to seek a declaration from the High Court that the order of the MAC of November 1990 was invalid.

• Ngäi Tahu to pay costs of the strike out application.

Commentary: while the court was split, the overall effect is that a majority of 4 supported the right of Ngäti Apa either to have their claim before the Waitangi Tribunal heard, even if it fell within the takiwä of Ngäi Tahu, or to challenge the MAC order on grounds of fairness and Treaty breach before the Waitangi Tribunal.

Ngäti Apa have reason to hope that they will have some success in their arguments before the Waitangi Tribunal. Justice Durie has on several occasions expressed a concern about defining multilayered tribal interests by drawing lines on maps (eg Mäori LR Oct 1994 pp5&10), and research in recent years on hapü and iwi rights (eg Ballara et al) supports that view.

As to costs, Tipping J endorsed comments from counsel for Ngäi Tahu that there was a broad and unsatisfactory trend not to award costs to successful parties in cases involving Mäori issues. His Honour observed that "we cannot see any general basis for dealing with costs in Mäori litigation on a different footing from other litigation." Ironically, this meant a cost order against Ngäi Tahu for failing in this appeal.

 

McDonald v Arrigato Investment Ltd & Another & Rodney District Council & others

M126/00. 16 March 2000. Salmon J

This was an application to strike out Mr McDonald’s claim that, among other matters, there had been inadequate consultation and notification of a marae and himself about resource consents for a subdivision granted to Arrigato Investments and over a plan change of the district council. He also claimed that the district council should not have accepted evidence from a Mr Laly Haddon who claimed to speak on behalf of tangata whenua of the area.

Mr McDonald was part owner in Taumata B Block which was close to the Arrigato subdivision, and he was a trustee in a local marae which he claimed exercised influence over the subdivision area. The Ngäti Wai Trust Board had been notified of the subdivision application. Mr McDonald was of Ngäti Wai, but neither he personally nor his marae had been notified of the application, although it was publicly notified.

Mr McDonald had however sought to be heard when the district council considered (and declined) the resource consent, and he had appeared at the subsequent Environment Court hearing which had granted the subdivision consent. He had also indicated an intention to appear at an appeal to the High Court from the decision of the Environment Court.

In relation to the plan change, Mr McDonald was concerned that the district council had accepted that Mr Haddon, who was a fellow trustee of the local marae, could speak for the marae, and that the Ngäti Wai Trust Board could speak for the marae.

Held: the law on strike out applications requires that these claims should only be struck out before hearing if the cause of action was so clearly untenable that it could not possibly succeed.

Mr McDonald accepted that the marae itself was not a party to the proceedings, and that, before the Environment Court, he had not been given any formal mandate to speak about the land (the Environment Court had heard from his fellow trustee Mr Haddon). Accordingly, his statement of claim could not argue that there had been a failure to consult or notify the marae itself either about the subdivision application, nor the plan change. This left him claiming personally as part owner of adjoining land.

The court struck out all but one of the statements of claim, including a claim that the District Council and Arrigato investments were not entitled to reach an agreement part way through proceedings before the Environment Court. On this aspect, Mr McDonald was not deprived of natural justice because he had been heard. The agreement was in any event subject to acceptance by the Environment Court. While s8 RMA 1991 (duty on decision makers to take into account the principles of the Treaty) applied to the district council and the Environment Court, it is about the partnership between the Crown and Mäori, not Mäori and local authorities.

The court also ruled out a claim that the Environment Court should not have accepted the evidence of Mr Haddon, and ought to have requested the Mäori Land Court to rule under s30 Te Ture Whenua Mäori Act 1993 as to who was the appropriate representative of Mäori affected by the proposal.

Mr McDonald did however have an arguable case that he ought to have been personally notified of the application (under s93(1)(e) RMA 1991) as part owner of nearby land who would possibly have his privacy and ecological values affected by the proposal. His statement of claim should however set out in what respects the Council may have wrongly exercised its discretion as to whether to notify him.

 

Other

Civil Legal Aid (Waitangi Tribunal) Remuneration Instructions 2000

Legal Services Board

Under the present civil legal aid regime, all legal aid applications in connection with Waitangi Tribunal proceedings are decided by a subcommittee of the Wellington District Legal Services Committee (Legal Services Act 1991, s 21(2)). The subcommittee comprises lawyers with experience in the specialist jurisdiction of the Tribunal. On 10 May 2000, the Legal Services Board – Civil Legal Aid (Waitangi Tribunal) Remuneration Instructions 2000 came into effect to further regulate how the subcommittee fixes and pays the remuneration of practitioners involved in legal aid granted for Waitangi Tribunal matters. The instructions have been issued by the Legal Services Board (presumably under s 97 of the Legal Services Act 1991, although that is not expressly stated) and are to be read in conjunction with the Legal Services Board (Civil Legal Aid Remuneration) Instructions 1999, which came into force on 15 November 1999. To the extent that there is any ambiguity between the two instructions, the Legal Services Board – Civil Legal Aid (Waitangi Tribunal) Remuneration Instructions 2000 prevail.

Remuneration in stages

The new instructions require the subcommittee to fix and approve remuneration in successive stages, each stage being a logical and discrete portion of the proceedings. Nevertheless, the Legal Services Board recognises that each case will follow its own special course "and may be more (or less) complex in terms of the various stages it will go through". In the explanatory note to the instructions, it lists the following examples of stages that might occur.

• Initial discussion and coordination with claimants and other interested parties, followed by the drafting and filing of a claim.

• Preparation for conferences conducted by the Tribunal before hearings start.

• Preparation for cross-examining Crown witnesses.

• Finalisation of research leading to the full preparation of the case.

• Presentation of the case before the Tribunal.

• Further presentation of the case if the need for additional research has arisen.

• Final submissions and discussions with claimants about how the Tribunal’s report should be used for later settlement negotiations with the Crown.

In general, once the WaitangiTribunal has reported on a claim, the conduct of subsequent settlement negotiations between the claimants and the Crown will not be funded through legal aid.

The subcommittee may fix remuneration up to $50,000 per stage at any one time. Once the work to which that remuneration relates has been completed, the subcommittee may consider a further estimate for additional work to be done in that stage, but the practitioner must first provide the subcommittee with a full report detailing what has been achieved to progress the claim during the preceding period.

The instructions identify the steps that the initial stage covers. The first steps include one or more hui to enable the aided persons to:

• meet with their legal aid lawyer or lawyers;

• identify core issues in the claim; and

• liaise with researchers, the Crown Forestry Rental Trust (CFRT), staff of the Waitangi Tribunal and any other aided persons (and their lawyers) in connection with related or overlapping claims.

According to the commentary: "[t]he aim of these hui would be to encourage claimants to work together to ensure greater efficiency in the way the claims(s) will progress and to determine how much additional research might be necessary on each claim before that claim be filed in the Tribunal".

The instructions state that up to $50,000 may be fixed for these first steps alone, although the commentary makes it clear that that sum "is a maximum amount and would not be ‘claimable’ in respect of every legally aided group involved in the same district hearing of the Tribunal". The commentary also states that the subcommittee is required to: "develop a clear liaison procedure with CFRT and the Waitangi Tribunal itself prior to making any initial grant of this sort so as to avoid duplication of processes and resulting waste of legal aid funds."

Further steps in the initial remuneration stage include the drafting and filing of the statement of claim "to commence the proceedings before the Tribunal".

Claim co-ordination

To achieve the goal of case efficiency and effectiveness, the Legal Services Board recommends that there be a co-ordinating individual or group of persons (one of whom should be a suitably available lawyer or legal executive) to assist claimants and their lawyers. If a coordinating group were established, it would receive "much the larger proportion of the money resource to advance the main issues of the claim". Any hapü and whänau groups "affected by the same claim" would receive lesser amounts so that they could determine issues in consultation with their lawyers.

The commentary recognises that the "effective process of claims coordination is not one which is easily achieved" but it lists a number of factors that the subcommittee will consider. These include:

• The need to get all participants in the process supporting that process and working to the same ends rather than splintering into groups.

• The dynamics involved with consulting a large number of disparate groups.

• Balancing the need for airing grievances with that of obtaining realistic outcomes.

• Whänau and hapü groups wanting to assert their own autonomy.

Information required

The instructions specify certain information that the subcommittee must have from the practitioner acting for the aided party before remuneration is fixed. This includes claim documentation, a detailed report "on the steps taken to obtain a fully coordinated statement of the purpose and extent of the claim including a report from the hui ... called to conceptualise and co-ordinate the claim", information about research matters and information about the identity, experience, role and cost of each lawyer who is to be involved in the preparation and presentation of the claim to the Tribunal.

The commentary to the instructions emphasises the need for the "highest degree of accountability" from legal aid practitioners and to that end it states that practitioners are required to supply clear and unambiguous information to the subcommittee. If necessary, the subcommittee will withhold payment until any matters have been adequately explained to it.

Research

In relation to research, the instructions make it clear that remuneration must not be approved "for the undertaking of any purely historical research which can otherwise be funded by CFRT or other like body". Where an application is made for essential research to be funded by legal aid, a full estimate must be provided to the subcommittee with information about the need for the research, an explanation as to why the cost of it can only be met from legally aided funds, who will undertake it and how many hours it will take. Nor may legal aid be used to enable a lawyer who is to present the case to the tribunal to undertake historical research in relation to the claim. On the other hand, legal aid may be used to permit a lawyer involved in the case to read and become familiar with the detail of historical research for the purpose of briefing witnesses or advising who ought to be called to give evidence on behalf of a claimant.

While the commentary to the instructions recognises that considerable amounts of preparation are necessary to decide who will give evidence, it also states that "[i]t is hardly ever necessary for all of the lawyers working [on] the case to read and absorb all the research reports in order to ensure that [...] valuable briefs of evidence come to be compiled". Accordingly, the subcommittee will require a detailed written explanation as to why in any particular case "the reading and study of all of the research by more than one lawyer is deemed necessary for the effective preparation of the overall case".

Expert witnesses

Before the subcommittee approves the remuneration of a person as an expert witness, the practitioner must provide it with information explaining why that person is to be called as an expert, the nature of the person’s expertise, the nature of the evidence and why it is considered to be a necessary component of the claimant’s case, and the nature and purpose of the preparation time that is being sought. The instructions set a maximum fee of $80 per hour for preparation time and $140 for appearances in the Waitangi Tribunal up to a maximum of seven hours per day, although the commentary allows a maximum fee of $180 per hour in the most exceptional cases.

Other matters

The instructions also cover payment of disbursements and limited situations where legal aid can cover mediation or negotiation.

Consultation

The Legal Services Board notes that it has issued the instructions after consultation with Waitangi Tribunal staff, the Wellington District Legal Services subcommittee that deal with applications for legal aid for Waitangi Tribunal proceedings, and various experts on the Waitangi Tribunal jurisdiction. However, it adds the qualification that the "breadth of that consultation was not as extensive as the Board might have wished".

Commentary (by Geoff Melvin): the Legal Services Board’s instructions go some way in adapting the general procedures designed for ordinary civil legal aid applications to the not-so-ordinary jurisdiction of the Waitangi Tribunal. In light of these instructions, however, it may be that the Board’s application forms would benefit from some modification (eg, to reflect the staged approach to fixing remuneration).

While the Legal Services Board may be applauded for signaling a need for greater co-ordination amongst the multiple number of claimant groups and lawyers who are typically involved in a Tribunal inquiry, it is not clear how this co-ordination will actually eventuate. The instructions provide an incentive in the form of additional resourcing for the co-ordinators but no other mechanism to ensure that the most suitable people to undertake coordination work do in fact come out of the woodwork. Further, if the method of co-ordination contemplated by the Board does take place, it is unclear how this will fit in with the co-ordination currently provided via the Crown Forestry Rental Trust and the Waitangi Tribunal. Perhaps it is regrettable that further consultation did not take place before the instructions were issued.

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