June 2000 Contents

Mäori Land Court & Appellate Court

Mäori Appellate Court—entitlement to shares after killing spouse

Waitangi Tribunal

Gisborne claims direction

Other Courts and Tribunals

Court of Appeal—representation & Orakei Act

High Court—bias in decision making & Maori relationships

High Court—broadcasting spectrum decision

Environment Court—unincorporated bodies

Valuation Tribunal decisions re Mäori land

 

Mäori Land Court & Appellate Court

In re Tawhai and Rakautatahi B2

12 Takitimu ACMB 254. 29 June 2000. Spencer, Carter, Savage JJ

In 1989 Ngahuia Tawhai and her husband Lou Tawhai arranged for him to transfer the legal title to over 8600 shares in a Mäori incorporation into Ngahuia’s name at a reduced value. The transaction was never completed, probably because the couple were concerned about the possibility of incurring gift duties. Later in 1989 a transfer of the legal title of Lou Tawhai’s shares to Ngahuia at their full value ($49,439) was completed. No money changed hands, but under the arrangement Ngahuia owed an interest free debt to Lou.

Lou Tawhai was killed in 1992. Ngahuia was the sole beneficiary under his will. Subsequently, Ngahuia was found guilty of the manslaughter of her husband.

The administrators of Lou Tawhai’s estate filed proceedings seeking the payment of $49,439 or the return of the shares. After protracted proceedings the Mäori Land Court ruled that the shares should be vested back in Lou Tawhai’s estate. Ngahuia Tawhai appealed.

The key issues were:

• Whether the 1989 transaction was a sale or a gift. If a gift, then the shares would belong absolutely to Ngahuia.

• If the 1989 transaction was a sale, then could this contract be cancelled by the estate of Lou Tawhai because the debt had not been paid?

• While Ngahuia held the legal title to all the shares, was that legal title subject to equitable obligations in favour of her husband? In other words, were the shares held on trust for her husband?

Whether the 1989 transaction was a sale or a gift

The transaction in early 1989 which was not completed was obviously intended as a gift. But the legal effect of the transaction later in 1989 was that Ngahuia legally owed her husband the full price of the shares – even if she would probably never pay the money. This type of arrangement to avoid gift duty is not uncommon. However, no matter what the intention was behind the arrangement, legally the debt remains to be paid unless it is released or discharged. The only evidence before the court was that Ngahuia would not repay the debt, but there was no evidence that a gift was in fact made. Consequently, Ngahuia remained legally liable to repay the debt. However, if the arrangement had given rise to a trust, that might alter the position (see below).

Contractual Remedies Act 1979

Section 7 of the 1979 Act allows a party to cancel a contract where the other party makes it clear it does not intend to perform its obligations under the contract. In this case it was argued that the failure of Ngahuia to pay the money demonstrated an intention not to honour the contract.

The appellate court found that this was a "very loose" arrangement and there was no stipulation in the contract about when Ngahuia should pay. Cancellation was therefore not an option for Lou Tawhai. In any event, since Ngahuia already had the legal title to the shares, and the Mäori Land Court is not included in the list of courts that can order the return of property under the Contractual Remedies Act 1979, the remedy sought (return of the shares) could not be granted.

Whether the shares were held on trust

Evidence in the lower court showed that, after the transfer of the shares, Lou Tawhai continued to act as if he had an interest in them. The intention appears to have been that a transfer to Ngahuia was for their mutual benefit, and they continued to speak at meetings of the Mäori incorporation about "their" shares.

The fact that Lou Tawhai made his land interests over to his wife in his will (contrary to the normal life interest to a spouse of Mäori custom) did not demonstrate any necessary intention to dispose of all his worldly assets to his wife in his lifetime. It could just as easily indicate a contrary intent.

The court adopted a submission that, in determining this matter of equity, the court must first determine what the legal position is, and then find if there is a clear common intention to depart from the legal position. The principles of Mäori customary law will be of assistance in determining the existence or otherwise of a reasonable expectation on the part of the parties.

On the evidence, there was a reasonable presumption that Lou Tawhai anticipated that he would retain an interest in the shares and derive a benefit from them. The evidence of Ngahuia herself supported this proposition. She had stated that the intention was to give her authority to speak and vote at incorporation meetings and to sell the shares so that they could build a house with the proceeds. Consequently, Ngahuia held the shares under a constructive trust for herself and her husband.

This agreed with the decision of the lower court. However the lower court went on to find that case law showed that it was public policy that Ngahuia should not benefit from the trust in any way because she had killed her husband. It ruled accordingly that all the shares should vest back in Lou Tawhai’s estate.

The appellate court rejected this approach. A trust over all the shares was created in favour of Lou and Ngahuia prior to Lou Tawhai’s death. So while Ngahuia could not succeed to her husband’s half interest in the trust because she had killed him, she was entitled to succeed to her own half interest in the trust, because that interest came into existence prior to her wrong action.

Accordingly, Ngahuia should remain the legal owner of all the shares, but half the shares would be held subject to a constructive trust in favour of her husband’s estate.

A remaining issue was whether Ngahuia now owed her husband’s estate a sum of money worth half the value of the shares, in accordance with the transaction entered into in late 1989. Since it had been found that the 1989 transfer to Ngahuia created a constructive trust in favour of both Ngahuia and her husband, this meant that Ngahuia in fact gained only a half interest in the shares in 1989 (even though the legal title to all the shares was transferred to her). In a trust situation the court must look to the intention to the parties. The half interest was worth less than $27,000, which was the level at which gift duty applied. The intention of Ngahuia and Lou was to create a debt which Ngahuia might be required to repay solely to avoid gift duty. Since, if they had understood the transaction correctly in 1989, no gift duty would actually have been owed, then it was consistent with their intention to find that Ngahuia did not now owe any money to her husband or his estate for her half interest in the shares.

Commentary: this decision is interesting for the issues of equity which it considers. Mäori custom appears to have had little if any bearing on the decision.

 

Waitangi Tribunal

Memorandum and Directions of the Deputy Chairperson concerning the Gisborne claims

Wai 814. doc 2.21. 5 July 2000. Deputy Chairperson, Chief Judge Williams

Chief Judge Williams, Deputy Chairperson of the Waitangi Tribunal, has issued a substantial memorandum following a pre-hearing conference of parties in Gisborne on 8 May 2000 to prepare for the start of the Tribunal’s inquiry into Gisborne claims (see Mäori LR Mar 2000, p 4, for a summary of the conference agenda).

One of the main purposes of the conference was to hear submissions from parties on proposals for a more intensive interlocutory stage, particularly between distribution of the Gisborne inquiry casebook (which will contain the principal research for all the Gisborne claims) and the start of hearings. The memorandum records that there was general support at the conference for the proposals but that the Crown took "serious issue" with the proposition that it should respond to claimants’ comprehensive statements of claim with an equally comprehensive statement of response. The Crown maintained that, as a commission of inquiry, the tribunal cannot be constrained by parties’ pleadings and must form its own independent view of the facts whatever position the parties take. Moreover, the Crown would not be able to meaningfully share any position on issues in the inquiry before it filed its own evidence with the tribunal. If required to make an earlier response, the Crown submitted that its response would be so carefully and conditionally stated that it would neither expedite matters nor provide greater certainty.

The Deputy Chairperson rejected the Crown’s arguments. On the question of whether the Crown should state its position on claims before hearings start, he stated:

"… the Crown has had nearly 15 years of experience in responding to historical claims by Mäori. It has had access to the Tribunal’s Rangahaua Whanui series which overviews all the historical claim issues in all districts including Gisborne since 1997. The Crown has a small team of skilled and experienced legal counsel, independent historians and officials able to work through the evidence on the record. They ought to be able to identify areas of dispute and areas where there is insufficient evidence to state even a preliminary position. Provided these matters are worked through at conferences openly and with the reasonable co-operation required as a matter of treaty principle, there is no reason to believe that the Crown cannot be in a position to participate on an equal footing from the outset. I certainly cannot accept that the Crown would be forced to state its response to claims too conditionally or equivocally to be of any use. It is frankly too late in the day and the Crown is too experienced a player now, to sustain the argument that its position needn’t be disclosed until the very end of the hearings process. That approach has contributed to the delay in reaching treaty settlements in the past. It cannot be further supported."

On the Crown’s submission that an early response from the Crown would not shorten the hearing process, because the tribunal must satisfy itself of the facts irrespective of the positions parties may take, the Deputy Chairperson stated:

"In effect the [Crown’s] submission was that the Tribunal cannot have regard to any agreement between Crown and claimants over the facts or other allegations, so it should not seek to identify common ground through a formal pleading process. There are two decisive answers in my view to that submission. First, while the Tribunal is never bound by agreements reached between parties and must form its own independent view of matters pursuant to section 6 [of the Treaty of Waitangi Act 1975], it ought in good conscience to take account of common ground between the parties when forming that view. The Tribunal, while remaining independent, can tailor the nature of its inquiry on matters no longer at issue, so as to avoid unnecessary hearings. To do otherwise in those circumstances would be an irresponsible use of public resources. …

The second reason arises from the fact that in the end it is the Crown and claimants who must reach agreement as to how the issues in the claim are to be viewed. For it is they who must agree a settlement. Setting aside the rather blunt instrument of binding recommendations, the Tribunal inquiry merely contributes to that ultimate goal. It follows that on the wider (and more realistic) view of matters, the earlier the parties are able to express their view on the facts, the earlier they can settle."

The memorandum signals that claimants will be required to state comprehensively and competently their claims against the Crown in respect of the historical and contemporary claims of the claimant group. Following that, the tribunal will hold a conference and may prepare its own summary of the live issues created by the statements of claim. The Crown will then be required to state its response (in a preliminary way, if necessary) to the live issues identified by the tribunal or to the statements of claim if the tribunal does not prepare an issue statement.

The memorandum also confirms the boundaries of the Gisborne district inquiry and makes various timetabling directions, including a direction that the deadline for filing research for the Gisborne inquiry casebook is 30 September 2000. However, Deputy Chief Judge Williams makes it clear that future progression of the inquiry depends on the availability of adequate funding from primary claimant funding bodies, the Crown Forestry Rental Trust and the Legal Services Board.

The Deputy Chairperson’s memorandum contains an exposition of the strengths and weaknesses of the Waitangi Tribunal and of its place within the Treaty claims settlement process as he sees these matters. This portion of the memorandum is quoted below.

"In the context of these historical grievances, the Tribunal has come to be seen as an integral part of a larger process. That is the process by which long-standing grievances of Mäori are articulated, independently reviewed and then settled (hopefully fairly and durably). Thus it is salutary to remind ourselves that a report of the Tribunal is not the end, it is simply a milestone along the way to the real end point which is the settlement earlier described. Even then it might be said that settlement is a beginning rather than an end.

Though there are opportunities for parties to negotiate directly with Government over their claims and though claimants are often encouraged to opt for that approach, few Mäori in the past have been comfortable with by-passing the Tribunal’s processes. This is for two reasons it is expected. First the process is public, and second the forum is independent. Because hearings are public, the wider claimant hapü and iwi can participate intimately in the evolution of their claims and in co-lateral discussions surrounding preparations for the negotiations stage. The Tribunal often has the effect of galvanising the claimant community into action and its presence helps to ensure their continued participation. The people come to own their claims. …

Second, as noted, the Tribunal is an independent adjudicator. That is, it is a forum in which the Crown must address its past action before the people. The Crown must respond honestly and honourably to the allegations levelled in respect of those actions. The ability of this independent process to heal wounds within a community and thereby to strengthen that community must not be underestimated.

It is, in short, the public and independent nature of the Tribunal’s inquiry which gives a later settlement with the Crown, legitimacy in the eyes of Mäori and durability in the eyes of the New Zealand public generally. There have always been governments willing to consider historical Mäori grievances on terms acceptable to those governments. Some have even been willing to establish commissions of inquiry into those grievances. But the Waitangi Tribunal is the first institution – bicultural in nature – which is designed to be a standing public and independent inquisition into these matters. That is, with respect, its great strength. Experience has shown that this strength must be present in the mix if the settlement process is to maintain its integrity.

There have been weaknesses. Foremost among these in my respectful view has been the time which it has taken to hear claims. The problem has generally been manifested in two ways. The first has related to mandate and representation. The hearings process has contributed to uncertainty as to the mandate of a number of organisations to represent the kin groups that they purport to represent. Ironically, this has partly been an effect of the length of time that hearings have taken. Partly it has also been a result of the failure of the Tribunal to address matters of mandate at an early stage in the process and before hearings commence so as to reduce uncertainty in this area. The relative neglect of mandate and representation issues has contributed to the second problem. As the Tribunal has moved into a district, the claims have proliferated. That is not to say the issues have proliferated – but the claims sought to be independently advanced in relation to those issues have proliferated. In addition, the Tribunal has operated under a funding regime both for itself and in respect of agencies whose funding is channelled into the hearing process, which funding regime focuses on hearing time. All parties have measured their success by the amount of hearing time they have been able to procure. The Tribunal itself has been no different. The result may have been a proliferation of hearings some of which may have been unnecessary.

The Tribunal has often, as a result, struggled to contain claims proliferation; failed to ensure claimant readiness to proceed; and been confronted by large bodies of evidence of marginal, if any, relevance to the issues in the claim. The Tribunal has also suffered because of the failure of the Crown to engage fully with claimants and the Tribunal at the outset.

These factors have contributed to inappropriate delay.

In any event, innovation is required. That is innovation which utilises the strengths of the hearing process as discussed herein but which uses those strengths to speed and simplify the process of getting to settlement rather than slowing and complicating it.

It appears that what is required is a process which encourages all parties to a maximum state of readiness before hearings commence. The effect of this would be to increase the efficacy of the crucial public and independent part of the process leading to settlement and to reduce the time needed to complete that phase. The second advantage of this approach would be to prepare the parties to negotiate as early as possible. Indeed if (as a result of a formal process of pleading) parties understand each other’s positions on the general factual issues in the claim before hearing, they may be in a position to commence scoping negotiations before or even during hearings. It seems to me that getting all parties to this point at the earliest possible stage should be an objective of the hearing process. Tribunal hearings and Crown/claimant negotiations should not be mutually exclusive processes. We should encourage them to be complementary and even contemporaneous."

 

Other courts & tribunals

Powell v Attorney-General & Another

CA 167/99. Court of Appeal. 28 June 2000. Richardson P, Gault & Keith JJ

This was an appeal from an order of the High Court to strike out proceedings brought by the appellant, Morley Paikea Powell, for declarations under the Declaratory Judgments Act 1908 (see Mäori LR Aug 1999 p 4).

The original proceedings commenced in 1997 when Mr Powell, a member of the "Te Uri O Hau Hapü and the Te Tao U Hapü of the Ngäti Haumoewharangi sub-tribe of the Ngäti Whätua Iwi" brought an action in the High Court that challenged the "piecemeal method of Treaty grievance settlements with the Ngäti Whätua tribe". The challenge began with an application for an interim injunction to prevent the Waitangi Tribunal from hearing the Kaipara claims. When this was declined, Mr Powell then filed a number of amended statements of claim. By the fifth amended statement of claim, he sought two declarations, only one of which was pursued on appeal, namely "[a] declaration that the Crown by the Orakei Act 1991 has to the exclusion of the [Ngäti Whätua] Tribe alienated land over which the Tribe has customary or native title". By the sixth amended statement of claim, he contended that the Orakei Act 1991 did not relieve the Crown of its obligation to pay adequate compensation to the Ngäti Whätua Tribe for the extinguishment of its aboriginal title.

The Orakei Act 1991 provided for the recognition of rights secured to Ngäti Whätua o Orakei in relation to the Orakei block by the Treaty of Waitangi by implementing parts of an agreement between the Crown and Ngäti Whätua o Orakei over land known as the Orakei block. The Act established the Orakei Mäori Trust Board and confered on it sole authority to conduct negotiations with the Crown for the settlement of outstanding claims relating to the customary rights and usages of the hapü (s19(1)/1991). The Act defined "hapü" as "the Mäori subtribe or hapü known as Ngäti Whätua o Orakei, being a hapü of the Mäori tribe or iwi named Ngäti Whätua" (s2/1991) but did not explicitly set out the composition of the hapü.

Held: as the matter had been presented in the High Court, it had been rightly struck out. But, it emerged in the course of Mr Powell’s submissions to the Court of Appeal that the definition of "hapü" in the Orakei Act and, therefore, the question of whom the Trust Board has a mandate to represent, is unclear and may, appropriately, be the subject of a declaration. Alternatively, or in addition, Mr Powell’s real concern may be that the Orakei Mäori Trust Board has interfered with the interests of members of the Ngäti Whätua Tribe who are not part of the Ngäti Whätua o Orakei hapü by exceeding its powers contained in s 19(1) of the Orakei Act.

Applying R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289, which held that a claim is not to be struck out if the statement of claim is capable of amendment to show a tenable cause of action, the Court of Appeal allowed the appeal and granted Mr Powell a month’s leave to amend his statement of claim, adding the Orakei Mäori Trust Board as a party if appropriate.

 

Moxon & Others and Rimmington & Others v The Casino Control Authority and Riverside Casino Ltd

M324-325/99. High Court, Hamilton. 24 May 2000. Fisher J

This case concerned allegations that two members of the Casino Control Authority should be disqualified for showing bias in their decision to grant a licence to Riverside Casino Ltd to establish a casino in Hamilton.

The High Court found that one member of the authority, Mr Cox, was disqualified for apparent bias, and the decision of the authority granting the licence was set aside.

The decision is of interest because "presumed" bias was not found in the case of the other member of the authority, Ms Opai.

It was alleged Ms Opai was biased because:

• She was related to Tainui.

• Tainui Development Limited, the commercial arm of the Tainui tribe, had a 25% shareholding in Riverside Casino Ltd at the commencement of the hearing (which dropped to 15% during the course of the hearing).

• Her husband was employed by Arrow International Ltd, a company contracted to provide project management and consulting services to Tainui Development Ltd, and the company likely to manage the construction of the casino.

The court considered that there was not a "real possibility" of bias by Ms Opai because:

• Ms Opai was not aware during the course of the deliberations of the authority of the contract between Arrow International Ltd and Tainui Development Ltd. The contract was handled out of Arrow’s Hamilton office and her husband worked in Wellington. There were no performance based incentives in his contract, and he was not involved in the work of the Hamilton office in any way.

• Ms Opai’s connection to Tainui was "remote", being solely through her grandmother’s grandmother.

• Although she was greeted by some Tainui people during the authority hearings, "she did not identify strongly with that tribe nor receive any material benefit from it."

• She had lived and worked outside Tainui’s geographical area of interest for the past 15 years.

• Tainui themselves were divided over the application in any event, with eight members of the tribe giving evidence or submissions opposing the licence.

 

Everton v Attorney-General and others

CP121/00 & CP 68/99. High Court, Wellington. 5 July 2000. Doogue J

Background

In 1997, the Crown issued plans to auction management rights for a period of 20 years to the 2 GHZ radio spectrum. A claim was subsequently submitted to the Waitangi Tribunal on the basis that the radio spectrum was a taonga and that Mäori had a right based on the Treaty of Waitangi to participate in, and benefit from, spectrum management. The Waitangi Tribunal heard the claim urgently and issued an interim report and then a final report in which the majority members upheld the claim and recommended that the Crown suspend its proposed auction until it had negotiated with Mäori to reserve a fair and equitable portion of the frequencies for Mäori (see, respectively, Mäori LR March 1999, p 1, and Mäori LR June 1999, p 11). The Crown did not accept the tribunal’s finding that Mäori had a Treaty right in respect of the radio spectrum, and decided to proceed with the auction, which was scheduled to begin on 10 July 2000. The Waitangi Tribunal claimant then sought judicial review of the Crown’s decision to proceed.

The proceedings

In these proceedings, the plaintiff sought a declaration that, pending the outcome of the application for judicial review, the Crown should not proceed with its auction until it had established an adequate system or process to protect the Mäori interest in the spectrum. The application was brought in reliance upon the Judicature Amendment Act 1972 s8 and Part VII of the High Court Rules. Section 8/1972 provided interim relief in cases involving the exercise of a statutory power if, in the opinion of the Court, it was necessary to do so for the purpose of preserving the position of the applicant. Rule 626 of the High Court Rules related to the remedy of certiorari.

The plaintiff relied on the following causes of action: that the Crown’s decision to auction particular frequencies was contrary to the principles of the Treaty of Waitangi; that its decision to reject the tribunal’s findings and proceed with the auction was ultra vires; that the Crown breached a fiduciary duty to accept the tribunal’s findings unless those finding were challenged in a court of law, with an associated obligation to act in good faith with regard to findings of the tribunal in relation to breaches of the Treaty; and that the plaintiff had a legitimate expectation that the Crown would treat the tribunal’s findings reasonably, honourably and in good faith unless they were challenged in a court of law.

The plaintiff submitted that Mäori had consistently asserted a right to exercise their rangatiratanga in relation to the radio spectrum and that the Crown’s arrogation of sole management rights under the Radiocommunications Act 1989 without first negotiating an agreement with Mäori was a breach of the Treaty. The Crown’s obligations were sourced in the legislative scheme of the Treaty of Waitangi Act 1975, which required the Crown to act consistently with Treaty principles when considering the tribunal’s report on the 2 GHZ claim. As the Crown had recognised the need to review the Treaty relationship process yet had nonetheless decided to reject the radio spectrum claim, it did not have a proper process in place to deal with the claim in accordance with its Treaty obligations.

The plaintiff submitted that the Crown’s decision to reject the Waitangi Tribunal’s findings and recommendations was a statutory power of decision because it was based on a report of a statutory body under a statute. It was argued that, in other cases, the Courts had focussed on the effect of a decision upon an individual and on the public nature of the decision rather than the source of the power.

The plaintiff submitted that the order sought was necessary to preserve the plaintiff’s position since the Crown had prevented itself from providing any involvement for Mäori in radio spectrum development on a Treaty basis. Although the Crown had earlier decided that it would provide for a trust in favour of Mäori in respect of part of the spectrum, the plaintiff did not accept that that satisfied her claim. The Court should exercise its discretion in favour of the plaintiff as the balance of convenience meant that it was preferable that relief be granted. The case was not one where damages would be an appropriate remedy, as the contention was that Mäori ought to have "hands on" ownership and control of a share of the management rights being auctioned.

In support of the plaintiff, the fourth defendant, the New Zealand Mäori Council, argued an inter-connection between the definitions of "broadcasting" in the Radiocommunications Act 1989 and the Broadcasting Act 1989, and then a further link between the latter Act and the Mäori Language Act 1989.

In opposition to the application, the Crown submitted that at all times it had taken steps to consult with Mäori and that it had already delayed the 2 GHZ auction to enable the Waitangi Tribunal to hear and report fully on the matter and for the Crown to consider the tribunal’s report. The tribunal’s recommendations were not binding on the Crown and its report could not give rise to a situation where the Crown could be acting ultra vires, or in breach of fiduciary duty, or in breach of any legitimate expectation, or in breach of the Treaty of Waitangi itself. The Crown’s decision not to accept the tribunal’s recommendations was not the exercise of a statutory power of decision. Rather, the plaintiff was asking the Court to consider policy decisions taken by Cabinet. Accordingly, there was no decision capable of having a justiciable consequence and no basis for the Court to intervene. The Crown also argued that the plaintiff had delayed in bringing these proceedings and that further delaying the auction would be unfair to those who had prepared their bids, as well as to Mäori who had accepted the Government’s offer of part of the spectrum by way of a trust.

Held: No statutory power of decision was present in this case. A decision by the Crown to reject a recommendation of a statutory body could not be said to be a statutory power of decision, unless it related directly to some other statutory power of decision. Had it been necessary to do so, the Court would have accepted the Crown’s position that the test of whether the relief was reasonably necessary to preserve the plaintiff’s position required the plaintiff to have a justifiable position to preserve.

On the issue of delay, the Court signaled that it would not have regarded the delay in pursuing the present remedy as a basis for refusing any relief.

"[I]n circumstances where Mäori and the Crown have been endeavouring over a substantial period of time to reach a mutually acceptable position, it would seem wrong to block relief simply because the plaintiff has taken no steps until the time when it became essential to do so, when it became clear that the relief sought by the plaintiff could not be achieved in the absence of litigation."

The Court accepted that compensation other than a share of the management rights to the spectrum would not fully satisfy the plaintiff’s position. However, given that her case was so weak, there was no justification for the Court to intervene when other relief was available if she was ultimately successful. The Court concluded:

"Where other parties who are not affected, and where the Mäori position is, at least to some extent, protected by the possibility of compensation, it would be wrong in any event for the Court to intervene."

Rule 626 of the High Court Rules was not available to the plaintiff as it expressly stated that the Crown Proceedings Act 1950 was not affected. Therefore it was not relief available against the Crown.

The application was dismissed.

Commentary: at the time of publication, the plaintiff had filed an appeal in the Court of Appeal, but the matter had not been heard.

 

Mokau Ki Runga RMC v Historic Places Trust and Transit New Zealand

W 32/00. Environment Court. 15 June 2000. Kenderdine J

This case concerned procedural issues surrounding the filing of an appeal on behalf of Mäori groups under the Historic Places Act 1993. Mrs Barbara Marsh lodged an appeal against a decision of the Historic Places Trust (HPT) to grant authority to the Transit NZ engineers to modify, damage or destroy an archaeological site on State Highway 3, near the Mokau River.

A part of SH3 had been affected by slips and it was decided to realign the road. The relevant consents were obtained. Ninety-four percent of the work had been completed when the archaeological site was discovered. It was a recorded site which contained archaeological evidence of Mäori occupation of the land in the form of blackened soil and hangi stones. To the Mäori of the area it is regarded as a wähi tapu because it is a surrounding area of Te Kawau Pa which holds special historical, spiritual and culture association for them. The road work would destroy the site. Work was stopped while consent from the HPT was obtained. Kaumätua removed the stones and blessed them. Subsequently the HPT granted authority to destroy the site.

The appeal was lodged by Mrs Marsh for Mokau Ki Runga Regional Mäori Committee. One ground of complaint was that Transit had consulted only with Ngäti Tama and not Ngäti Maniapoto, who claimed mana whenua in the area.

The Environment Court found that the appeal was invalid from the beginning for procedural reasons, the main one being that Mrs Marsh had lodged the appeal "for Mokau Ki Runga RMC". Mokau Ki Runga RMC was one of six Regional Mäori Committees which have delegated authority from the Maniapoto Mäori Trust Board. The trust board in turn was regulated by the Maniapoto Mäori Trust Board Act 1988 and was a charitable trust under the Charitable Trust Act 1957. The Mokau Ki Runga RMC was comprised of four marae and Mrs Marsh was a delegate of one of the marae. In subsequent documents she identified herself and one other as appellants and as able to appeal because they were members of the RMC. In the meantime, representatives on behalf of each of the marae making up the Mokau committee advised the court that they did not support the appeal. The chairperson of the RMC also advised that he withdrew the appeal.

At common law unincorporated bodies generally have no status in law, but an unincorporated body can have a separate and distinct legal personality from its members, if there are relevant statutory indications to that effect (Campbell v Scott [1995] 2 NZLR 345). In this case, ss2 & 8 Maniapoto Mäori Trust Board Act 1988 and s20 Mäori Trust Boards Act 1955 provided for the establishment by regulations of regional management committees. Although regulations had never been made the intention that such committees be separate entities was apparent. This conclusion was reinforced by the fact that the Maniapoto Mäori Trust Board Order 1999, which validated the election of members of the Maniapoto Mäori Trust Board, recorded that members were elected by the Regional Management Committees (including Mokau Ki Runga RMC). Consequently, since Mokau ki Runga RMC had advised that they withdrew any appeal, and Mrs Marsh had not sought to substitute herself as appellant, there was no appeal.

The court also questioned whether Mrs Marsh was a person "directly affected" by the decision under s20 Historic Places Trust Act 1993 since the Te Paemate marae which she represented was some distance from the road works.

 

Decisions of the Land Valuation Tribunal

The following decisions of the Land Valuation Tribunal are of interest in illustrating how the determination of the Court of Appeal in Valuer General v Mangatu Inc [1997] 3 NZLR 641 has been applied in practice.

 

Mangatu Incorporation & Others v Valuer General

LVP22-33/95. Gisborne Land Valuation Tribunal. 29 December 1998. MacLean J, EC Bowis, MG Cotterill.

In this decision the Land Valuation Tribunal applied the Court of Appeal decision concerning the Mangatu blocks (Valuer General v Mangatu Inc [1997] 3 NZLR 641 see Mäori LR September 1997 p2) which required the tribunal to take into account the statutory restrictions on the sale for Mäori freehold land when determining its value. The original objection had related to 290 properties valued at $40,259,000. It was agreed to make an initial determination and application of the principles outlined in the Court of Appeal decision in relation to two representative properties.

One was Awapuni Moana, a place to which Mäori had extensive links and which would in all likelihood never be sold because of its cultural and spiritual significance to the iwi.

The other was Mangamaia, which had strong historical links for Te Aitanga a Mahaki and had historically been a land base for hundreds of people, and had historically had several marae on it. It had however been leased to Päkehä for several decades and had been developed and returned in the 1940s. The incorporation sought a discount of 45% for the Awapuni land and between 32-45% for the Mangamaia land.

The tribunal found that it was required to make an assessment in a situation where an agreement to sell had been reached, that is, all substantial requirements for a quorum etc had been overcome and agreement had been reached either with a person within the preferred class of alienees, or Mäori outside the preferred class, or non Mäori. In the case of Awapuni Moana this was a "major assumption".

It found that the Court of Appeal decision required it to concentrate on the extra costs associated with the sales process for Mäori freehold land when compared to other land (as opposed to any problems with obtaining a quorum to agree to a sale), including the need to notify preferred classes of alienees, the need to obtain confirmation of the sale from the Mäori Land Court, and the need to apply for a status order to change the land from Mäori freehold land to general land in many cases.

The tribunal accepted Crown submissions that the Court of Appeal decision had been made in an "evidential vacuum", and considered evidence of sales of Mäori freehold land which had taken place in recent years.

The attention of the tribunal was also drawn to further decisions which might be relevant to the Court of Appeal decision, including:

• Kairakau 2C5 B block (Kapiti Farm Ltd) where the Mäori Appellate Court determined by a majority decision that non-Mäori owners might not partition Mäori freehold land even where their development wishes were directly at odds with the Mäori owners.

• Auckland Grammar School Board (1995) DCR 937 where the valuation tribunal allowed a limited discount from the open market value (6.8%) of former State owned enterprise land subject to a memorial and s27B State Owned Enterprises Act 1986, providing that it might be returned to Mäori if a claim over the land should be found to be well founded.

The tribunal found that Mäori freehold land was being sold reasonably regularly on the open market, despite the restrictions of Te Ture Whenua Mäori Act.

"The practical reality is that when the Tribunal examines all the evidence before it, as to what has actually been happening in the Mäori Land Court, … there is simply no evidence of any discount being applied. On the contrary, there seems to be quite a bit of proof suggesting that the Mäori Land Court is vigilant to ensure that open market value is being paid."

On the evidence, the tribunal concluded that because of the extra costs incurred around sales, valuations of Mäori freehold land should be discounted between 5 and 15%, depending on the particular circumstances of each block.

Applying this approach to the two representative blocks before it, the tribunal discounted the Mangamaia block by 5.34% and the Awapuni block by 15 percent. The difference was, in the case of the Awapuni block, stronger historical links with the land from a potentially quite large and largely unidentified class of preferred alienees. Mangamaia had a simpler ownership structure and fewer problems in this regard.

 

Houpoto Te Pua Forest v Valuer General & Houpoto Te Pua Trustees

LVP27/96. Gisborne Land Valuation Tribunal.
31 May 1999. McLean J, EC Bowis, MG Cotterill

The Land Valuation Tribunal examined a block of over 5200 hectares of East Coast forest land of great importance to the iwi, which was under a long term profit sharing lease (99 years) with a forestry company. The Mäori owners argued against any discount, which would see a reduction in rents received from the land. The tribunal accepted that the land was extremely significant to the iwi:

"We are very conscious of the provisions of the preamble to Te Turi [sic] Whenua Mäori Act pointed out by the Court of Appeal as requiring recognition namely ‘that land is a Taonga Tuku Iho of special significance to Mäori people and for that reason to promote the retention of that land in the hands of its owners, their Whänau and their Hapü …’. We are also conscious that according to te kanga Mäori [sic], relationships between land and people are regarded in an entirely different way from any concept of land as being a disposable commodity and the world view of Mäori as ET Durie in his article "custom law" in the Victoria University of Wellington Law Review Volume 24 said ‘in this world view, Mäori were the land. It was part of them by direct consent of the earth mother. Land or Whenua is represented in the Whenua or placenta of women. Mäori are born out of the Whenua.’ And further ‘the right to the land in an area is accordingly based on that understanding.’ From what was said to the Tribunal by representatives of the Mäori owners we accept that it is hard for them to imagine how they could ever get to the situation of permanently alienating the land by way of a transfer out from their ownership of their freehold interest."

It concluded however that only a 3½% discount was required, because the land was vested in trustees and sales would require approval only from a majority of trustees, not from shareholders directly, and the long term lease arrangement indicated that the owners accepted that commercial arrangements were possible in respect of the land.

 

Fisher & Wakeman v The Mäori Owners & Valuation NZ

LVP38/96. North Auckland Land Valuation Tribunal. 5 August 1999. Everitt J, D Low, K Stevenson

This case involved 538m2 of coastal Mäori freehold land. The lessees sought a reduction in the land value (of around $40,000) and a consequent lowering of the rental to be paid to the Mäori owners. The tribunal found that no discount should be made on account of the legal status of the land, because it was a single small site in a "very desirable location" with a small number of Mäori owners. There would be no shortage of preferred alienees willing and with the means to purchase the land. There was no evidence that the site was of historic or particular significance to Mäori as an urupä or land site or similar.

Commentary: these decisions indicate that the Mangatu decision appears to be having very little impact in practice.

It should also be noted that Te Ture Whenua Mäori Amendment Bill 1999 (clause 61) proposes to remove s154 Te Ture Whenua Mäori Act 1993 which provides that the Mäori Land Court may refuse confirmation of an alienation on a number of general grounds, including the historical connection of the owners with the land and its historical importance to them, and the application of the "principles of ahi ka". This provision was a key element in the Court of Appeal’s decision in the Mangatu case and its conclusion that the 1993 Act imposes a "significant barrier" to alienation.

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