July 2000 Contents

Other Courts and Tribunals

Court of Appeal – radio spectrum sale

High Court – Mäori incorporations & criminal proceedings

High Court – traffic offence, Treaty arguments

High Court – criminal sentencing,  whether cultural reparations sufficient

High Court – fisheries & meaning of iwi - legal aid for appeal to Privy Council

High Court – general challenge to constitutional order

Environment Court – subdivision, disputed kaitiakitanga

Parliament

NZ Public Health and Disability Bill 2000

Revised Treaty settlement policy

 

Other courts & tribunals

New Zealand Mäori Council v Attorney-General and others; Everton v Attorney-General and others

CA 134/00 & 135/00. Court of Appeal. 13 July 2000. Gault, Thomas, Keith, Blanchard, Tipping JJ.

In this case, the appellants appealed against a decision of the High Court to refuse an application for interim relief to prevent the government from proceeding with its planned auction of management rights to the 2 GHz radio spectrum (see Mäori LR June 2000 p5). The government had decided that the auction should proceed despite a recommendation of the Waitangi Tribunal that it be suspended until it had negotiated with Mäori to reserve a fair and equitable portion of the frequencies for Mäori (for summaries of the Waitangi Tribunal’s reports on this matter, see Mäori LR March 1999 p1 and Mäori LR June p11). The auction had begun on 10 July 2000 but was suspended pending the outcome of these proceedings.

In the High Court, the plaintiffs had pleaded that the government’s decisions to reject the Waitangi Tribunal’s recommendations and proceed with the auction were (1) ultra vires of the Treaty of Waitangi Act 1975, (2) in breach of a fiduciary obligation to accept the finding of the Waitangi Tribunal unless those findings were challenged in a court of law, and (3) in breach of a legitimate expectation of the appellants that findings of the tribunal would not be rejected unless challenged in a court of law.

On appeal, the first cause of action was not pursued. The plaintiffs argued that the duties in the second and third cause of action were founded on certain judicial dicta postulating substantive fairness as a ground for "administrative review" and the authorities addressing legitimate expectation as to process. The New Zealand Mäori Council also argued for a link between the 2GHz spectrum and the Crown’s obligation to protect and promote the Mäori language.

Held: There was no tenable basis for the causes of action alleged. The plaintiffs’ arguments all had as an essential premise a higher obligation on the Crown to recognise and accord tino rangatiratanga in respect of Article 2 Treaty rights when the Waitangi Tribunal had found that they existed. That went beyond any obligation of a Treaty partners to act towards each other in good faith, and had not to date been upheld as an obligation enforceable at law. It would seem contrary to the statutory framework within which the Waitangi Tribunal is empowered to make only recommendations, except in particular circumstances that did not apply here.

Even if there had been a basis for interim relief, the court would not have been satisfied that it was necessary to protect the interests asserted by intervening in the auction process and thereby causing major disruption. Any Mäori rights in the management of the spectrum to further the economic development of Mäori could be addressed in many ways, should the plaintiffs ultimately succeed in their substantive claim. Further, the issues involved were high policy matters that were essentially for government and Mäori and not the courts. The 2 GHz auction would generate money for public benefit and Mäori would not be excluded from that.

 

R v Miru

T99 2580. High Court Auckland. 26 April 2000. Williams J

The accused was charged with 12 counts of offences under the Misuse of Drugs Act 1975, plus money laundering and conspiracy charges under the Crimes Act 1961. He represented himself, together with a McKenzie friend, Mr Meo Mate-Brown.

When the matter first came before the High Court, the accused indicated that he wished the trial to be transferred to a marae and claimed that he was entitled to such a transfer under Te Ture Whenua Mäori Act 1993. At a later appearance, Mr Brown filed a memorandum in which he claimed that the Te Tii Mangonui Mäori Kaporeihana had jurisdiction to try the accused on the charges that he faced. He attached to the memorandum a Mäori Land Court order that set up a Mäori incorporation to be known as The Proprietors of Te Tii Mangonui Mäori Kaporeihana in respect of land known as Te Tii Mangonui A1B and appointing the committee of management of the body corporate. Mr Brown was a member of the committee of management and he produced some of its resolutions, which included the setting up of Te Kooti Rangatira, a High Court, and Te Kooti Kaitiakitanga, a District Court. Various committee members held positions as judges, registrars and so on. The resolution to set up Te Kooti Rangatira included a note that an application would be made to the Governor-General to confer the special jurisdiction of the High Court on the incorporation and Te Kooti pursuant to Acts of the New Zealand Parliament, common law and tikanga Mäori.

Mr Brown submitted that the incorporation had jurisdiction in respect of the accused’s case as a result of the resolutions that it had passed and s253 of Te Ture Whenua Mäori Act 1993, which stated:

"Capacity and powers of incorporation – Subject to this Act, and any other enactment, and the general law, and to any express limitations or restrictions imposed by the Court in the order of incorporation or included in its constitution pursuant to section 253A of this Act, every Mäori incorporation has, both within and outside New Zealand, in addition to the powers expressly conferred on it by this Part of this Act –

(a) Full capacity in the discharge of the obligations of the trust in the best interests of the shareholders, to carry on or undertake any business or activity, do any act, or enter into any transaction; and

(b) For the purpose of paragraph (a) of this section, full rights, powers, and privileges."

The accused also argued that his entitlement to have his trial heard on a marae and for him to be tried by Te Kooti Rangatira of the incorporation was in accordance with s2 Te Ture Whenua Mäori Act 1993, and especially s2(2), which included Parliament’s intention that the powers under the Act should be exercised in a manner that facilitated and promoted the retention, use, development, and control of Mäori land as taonga tuku iho by Mäori owners, their whänau, their hapü, and their descendants.

Held: The court had no jurisdiction to grant the applications. Jurisdiction was not conferred by Te Ture Whenua Mäori Act 1993 and the Te Tii Mangonui Mäori Kaporeihana could not arrogate it to itself. Section 253 of Te Ture Whenua Mäori Act 1993 expressly stated that the powers of incorporations were subject to that Act itself and to any other enactment and the general law. Sections 5 and 9 of the Crimes Act 1961 defined the place and manner in which all crimes alleged in New Zealand must be tried. Section 5 stated that the Act applied to all offences for which the offender may be proceeded against and tried in New Zealand, and s9 made it clear that no-one in New Zealand could be convicted of any offence at common law or any offence under any imperial statute. The charges that had been brought under the Misuse of Drugs Act 1975 had also to be tried in accordance with that procedure.

The applications were dismissed.

 

Kaihau v Police

AP 5/2000. High Court, Palmerston North. 11 May 2000. Durie J

Mr Kaihau had been convicted and fined in relation to a speeding offence at Oroua Downs, failing to produce a driver’s licence without delay and driving without a current driver’s licence. He appealed against conviction and sentence.

On appeal, Mr Kaihau, who represented himself, submitted that the area of road on which the offences were alleged to have occurred had not been properly purchased and was still Mäori land. Accordingly, laws had no effect in respect of that area. He further contended that s71 New Zealand Constitution Act 1852 enabled Mäori to establish their own districts on their own customary land and that their own law applied in those districts. Although the 1852 Act had been repealed, it had not been properly repealed and, in particular, the Crown had not approved of the change that omitted s71. Mr Kaihau also submitted that the Crown had breached the Treaty of Waitangi and was operating illegally and could not pass the laws it had passed. Finally, he claimed diplomatic immunity, apparently on the basis that he was from the independent state of Kahukoha, which was affiliated to the Confederation of Mäori tribes.

Held: The appeals were dismissed. The road on which Mr Kaihau had been travelling when the offence occurred was a road within the meaning of the Land Transport Act.

Section 71 New Zealand Constitution Act 1852 had enabled the Governor to set aside Mäori districts if he wished; it was not a right of Mäori people to establish their own districts. It was enacted at a time when the colonial government, which was unable to enforce English law in some remote parts of the colony, intended to establish schemes whereby Mäori themselves would take control of law and order in those areas until English law could be gradually introduced. In the event, no such districts were established. In any case, the Act was repealed and replaced by the Constitution Act 1986, which had received the Royal Assent and was full and binding.

The Treaty of Waitangi was an extremely important document in underpinning the decision of the Crown to annex New Zealand; it gave the Crown moral validity to do so and it assisted the Crown to stand out against what were then rival interests from other Governments, including France. However, the Treaty was not "the basis of law on which the Government has legal authority". That authority arose from the proclamation of sovereignty.

As to Mr Kaihau’s submission that he had diplomatic sovereignty, the court was satisfied that the necessary process under the Diplomatic Privileges and Immunities Act 1968 had not taken place or had even been contemplated. Furthermore, what was contended to be the independent state of Kahukoha could not qualify as a foreign state in terms of that Act, given the definition of New Zealand’s boundaries.

Durie J ended his judgment with these words:

"What I wish to say to you and the group with you today is that should you breach the New Zealand law on the roads or in any other way I think it extremely unlikely that you will have success in a Court of law in the arguments that you are bringing. It would be unfortunate if you put yourself, and most especially others, to considerable expense, Court fines and fees and costs in attending Court which could be avoided. You may be better minded to target these resources to being heard in a forum where they might be better advanced. You may be putting your own people to considerable expense, and unnecessarily raising expectations, which can only be false, in coming into a Court with the arguments with little chance of success. I say that with every feeling of goodwill towards you and the Confederation and I hope that you would take what I say with that in mind."

Earlier in the judgment, His Honour suggested that some of the matters raised in the proceedings might be put to the Waitangi Tribunal.

 

Te Ringa Mangu Mihaka v Police

AP65/2000. High Court Wellington. 27 June 2000. McGechan J

The appellant appealed against his conviction and sentence for assault under s9 of the Summary Offences Act 1981. The conviction arose from an event at Waitangi marae, Waitangi, on 6 February 2000, when the appellant was inside a breakfast marquee on the marae and observed the victim enter. He approached the victim and they shook hands and greeted with a hongi. As they did so, the appellant grasped the victim’s hand tightly and pulled him hard so that their heads collided. The appellant then began to speak very loudly to the victim and tried to punch him twice in the face. The victim lost his footing and fell. The appellant’s explanation to the police was that he had been seriously offended by something that the victim had said two years earlier, and wished to confront him about it.

The appellant represented himself on appeal. In written submissions to the court, he stated that after the alleged assault he:

"went to considerable lengths to apologise to the marae, and the people within the takiwä that includes Waitangi. I did this on the local radio, and in statements published in the Northern News, and the Northern Advocate. The next time I attended a hui at Te Tii Marae, at Waitangi, I apologised to the people of the marae within the context of their Annual General Meeting. These apologies were accepted and acknowledged by the people.

By addressing my cultural responsibilities to the people I considered most affected by the incident I undertook a significant process of reparation.

According to the customary practice of facing directly the consequences of one’s deeds I met my cultural obligations within the implied legal process of the dynamic that regulates the Mäori community."

Mr Mihaka also contended that the police "intervened as a third party to an incident within the boundaries of marae authority" and had laid a charge despite the fact that the alleged victim had not made an express complaint. By sentencing the appellant, the District Court Judge had breached and undermined the effectiveness of the hapü authority to accept the appellant’s reparation as sufficient. In failing to account for the effectiveness of hapü authority, the judge had disregarded the partnership between Mäori and the Crown according to the principles of the Treaty of Waitangi. Mr Mihaka also claimed a legitimate expectation within the Treaty partnership that the Crown would not disregard the effectiveness of hapü authority. He had provided reparation in good faith and had expected that the Crown, as a Treaty partner, would acknowledge that justice had been done under customary law and therefore "the Court’s jurisdiction ought not to be applied in the form of a sentence that amounts to a double jeopardy".

In addition to an order that the sentence be set aside, he sought acknowledgements by the High Court that, amongst other things:

• The principle of partnership under the Treaty of Waitangi provides for a relationship that is equal in a way that may be seen where the courts recognise and acknowledge reparation under hapü authority as sufficient in allegations within Mäori events and relationships that are brought within their jurisdiction.

• That a citizen of this country who is not only Mäori, politically conscious of that, has access to and is likely to be subject to two authorities – Mäori and Crown – and that if required to make reparation to both is then exposed to double jeopardy and the Crown should refrain from exercising its jurisdiction and defer to the effectiveness of hapü authority.

Held: The appeal raised the "deep" question of the relationship between the New Zealand courts and marae or hapü authorities. However, the courts could not and should not decline to determine criminal proceedings where matters had already been, or would be, subject to cultural resolution within a marae. "The Courts, established under the law of the land, have comprehensive jurisdiction not excluded by cultural preferences." Concepts of equal partnership under the Treaty of Waitangi did not limit the jurisdictional bases of the courts established by law. If there were to be any resolution of "double jeopardy" problems because of an accused’s perception to have to conform to other cultural norms, that would have to be via legislative intervention.

As to the question of whether the District Court Judge had made sufficient allowance within the sentencing process for the appellant’s apologies within the hapü environment, the High Court had "no reason to doubt that the judge had sufficiently grasped the general scale of the apologies given". The sentence was modest and not inappropriate. The appeals were dismissed.

 

Perenara v Attorney-General

CP38/2000. 13 July 2000. High Court Wellington. Doogue J

Mr Perenara was one of a number of plaintiffs who had been involved in proceedings to determine whether, in terms of the fisheries settlement administered by the Treaty of Waitangi Fisheries Commission, the requirement to distribute the settlement proceeds to "iwi" meant only to traditional tribes.

The High Court found that "iwi" referred to traditional tribes only. That decision was upheld by the Court of Appeal by a majority of 3 to 2 (Te Waka Hi Ika o Te Arawa v TOWFC [2000] 1 NZLR 285. Leave was subsequently granted by the Court of Appeal to appeal to the Privy Council, with the Court of Appeal commenting that the issue were of great public importance (see Mäori LR November 1999 pp10-11)

Mr Perenara sought legal aid to take the appeal under s19(1)(c)(ii) Legal Services Act 1991. This required that the Attorney-General certify both that "a question of law of exceptional public importance" was involved and that a grant of aid was "desirable in the public interest" (the actual decision was made by the Minister of Justice (under s7 Constitution Act 1986), because of a concern expressed by Mr Perenara about a peripheral involvement of the Attorney-General in proceedings associated with the Mäori fisheries settlement).

The Minister of Justice declined to issue a certificate on the basis that, while a question of law of exceptional public interest was undoubtedly involved, it was not in the public interest to "expend further scarce public resources" on an appeal to the Privy Council. The minister said that he had considered, among other matters:

• The "budgetary constraints on the funds available for legal aid"

• The fact that Mr Perenara had received legal aid funding for the High Court and Court of Appeal proceedings and was now seeking $100,000 for the Privy Council hearing

• The fact that the High Court and Court of Appeal in their various decisions to date had specifically commented on the justifiability of these issues and the alarming expenditure already incurred in the litigation.

The minister relied on advice from the Solicitor-General, who had commented that, in terms of public interest, the matters to be considered included:

• Mr Perenara’s claim to be the only party in the overall proceedings representing coastal marae-based Mäori with direct traditional involvement in sea fishing.

• Observations in the dissenting judgment of Thomas J in the Court of Appeal that the proceedings to determine whether iwi meant only traditional tribes were "futile" since there was nothing to prevent the fisheries commission from distributing to iwi so long as the resulting distribution was for the benefit of all Mäori. Adding to this futility was the fact that all parties had accepted that all Mäori had tribal affiliations, even if they were not know or acknowledged.

• Further comments by Thomas J and by judges in the High Court that the dispute was not one that was suitable for a court imposed solution.

• Comments in the Court of Appeal that whether iwi meant traditional tribes or included other groups would probably make little difference to the overall distribution of the settlement since all Mäori were to benefit. The only substantive issue was therefore whether the implementation of the settlement would accord with traditional Mäori values.

• The fact that other plaintiffs might take the matter through to the Privy Council.

Mr Perenara appealed against this decision to refuse aid on a number of grounds, including that the minister had taken into account matters that were irrelevant, and failed to consider certain relevant matters.

Held: the appeal should be dismissed. Section 19(1)(c) had been considered in detail in 3 decisions by the Court of Appeal (Wellington District Legal Services Committee v Tangiora [1998] 1 NZLR 129), the Privy Council (Tangiora v Wellington District Legal Services Committee [2000] 1 NZLR 17), and the Full Court (Tangiora v Wellington District Legal Services Committee [1999] 2 NZLR 114). Those decisions had highlighted that:

• The ability to take cases to the Privy Council was specially restricted by s19(1)(c).

• The rationing of legal aid resources was a valid concern for decision under the Legal Services Act.

• The Privy Council had commented that, after cases had been heard by at least 2 tiers of the local courts, a further appeal should normally be financed without recourse to public funds.

• There was no appeal process from a decision under s19(1)(c) as there was for other decisions to grant or refuse legal aid.

Turning to the particular issues raised in the appeal.

The allegation that the decision should be overturned because the Crown had been an active party in the court proceedings on these issues to date could not be sustained. The Crown had abided the decisions of the courts on the preliminary issue of the meaning of "iwi" in the fisheries settlement.

The minister was clearly entitled to consider the impact of the appeal on the overall legal aid budget as a relevant part of the public interest, and he had clearly taken a rational approach and a view on the legal aid figures which was open to him – even if Mr Perenara might disagree with that view.

The minister had not failed to take into account the fact that Mr Perenara claimed to represent a unique position in the litigation. The minister had material before him on that matter and any complaint about his consideration of it was really a matter of the weight which he had given that factor. The minister had not in his decision at any point actually relied on the fact that other appellants would be taking the issue to the Privy Council.

The minister was not wrong to take into account the views expressed in the High Court and Court of Appeal about the futility of the fisheries settlement proceedings. Nor had the minister been misled by the Solicitor-General on the nature of the comments made in those courts.

Mr Perenara was in effect arguing that, once it was accepted that a point of law of exceptional public importance was involved, then it virtually followed as a matter of course that granting aid for an appeal on that matter must be in the public interest. But while it was true that in Tangiora v Wellington District Legal Services Committee [1999] 2 NZLR 114, 127 the Full Court had commented that, in making a decision under s19(1)(c)(ii) whether to grant a certificate, the minister should not consider the ultimate strength of the case being taken on appeal, the court had also plainly indicated that the proper use of public funds was a relevant consideration.

Accordingly, the appeal failed. On the question of costs, it was surprising to see that Mr Perenara had been granted legal aid to attack the decision of the minister, given the comments of the Privy Council about s19(1)(c) in the Tangiora case.

 

Manukau and Others v Attorney-General and the Governor-General

M259-SD00. High Court Palmerston North. 19 July 2000. Chambers J

The plaintiffs styled themselves as the Executive Council of the Hereditary Sovereign Confederation of the United Tribes of Nu Tireni (New Zealand). They challenged the validity of constitutional structures, including the concept of Parliamentary sovereignty. They claimed the Council exercised "rangatiratanga (sovereign legal rights) in such manner as it sees fit", that it was not bound by the laws and customs of the Attorney-General and the Governor-General, and that it expressly rejected "the jurisdiction under the Constitution Act 1986". In their fourth amended statement of claim, the plaintiffs stated that the Crown had "actively denied and prevented the plaintiffs, the independent right to exercise Rangatiratanga (Mäori sovereign power and authority to make and exercise lores (Tikanga Mäori) in New Zealand and Internationally since 1840." They sought an order declaring themselves to be entitled to exercise their independent Rangatira rights in Nu Tireni (New Zealand) as;

• "Nga Rangitira o te Whakaminenga on Nu Tireni (Sovereign Confederation of Chiefs and heads of Hapü of New Zealand)"

• "Te Whakaminenga on nga Hapü o Nu Tireni (Sovereign National Status)"

• "Rangatiratanga o nga iwi (Sovereign Legal Rights as individuals)"

• "Tikanga Mäori (Mäori Common Lores)"

They also sought an order declaring that the Crown have failed to and actively denied them "the exercise of all its Rangatiratanga (Sovereign Legal Rights) as Nga Rangatira (Sovereign Confederation of Chiefs and Heads of hapü) and as individuals [sic]."

The Crown accepted that the claim raised important issues confronting New Zealand society but it contended that they were of a political nature and were non-justiciable. The propositions in the claim were so clearly untenable that they could not possibly succeed. Accordingly, the claim should be struck out.

Held: All the grounds relied upon by the council failed. It was established beyond question that sovereignty resided in Parliament (New Zealand Mäori Council v Attorney-General [1987] 1 NZLR 641). The 1835 Declaration of Independence had no legal effect in contemporary New Zealand (eg Warren v Police reported in Mäori LR March 2000 p5). The Treaty of Waitangi did not confer sovereignty on the council or its predecessors, and it was well-established that the authority of the New Zealand Parliament did not derive from the Treaty of Waitangi (eg Berkett v Tauranga District Court [1992] 3 NZLR 206 and Kaihau v Police, reported in this issue of the Mäori LR). The council could not rely on s71 of the New Zealand Constitution Act 1852 (UK) (which permitted the Governor to set aside Mäori districts) as that Act has been repealed. Section 20 of the New Zealand Bill of Rights Act (right to enjoy minority culture, religion, and language) did not challenge Parliamentary sovereignty and did not confer sovereignty on the council.

As the plaintiffs’ claim had no chance of success, it was struck out. The court went on to note that:

"This challenge to the existing constitutional order is but the latest of many challenges by Mr Manukau and the council. They have all failed. That is because the courts are not the appropriate forum for challenges of this sort. New Zealand judges are bound by the oath they take on appointment to apply the law of New Zealand and that law is firmly based on an assumption of Parliamentary sovereignty. Only Parliament or the people by some appropriate and legitimate means can change that. It is not within the power of the High Court to ring a change of such far-reaching consequence."

 

Kotuku Parks Ltd & Kapiti Environmental Action Inc & Waikanae Estuary Guardians & Te Runanga O Ati Awa Ki Whakarongatai Inc v Kapiti Coast District Council

RMA 1655/98 & ors. Environment Court. 13 June 2000. Sheppard J (presiding), IGC Kerr, J Kearney

These appeals concern a proposal for subdivision of land at the mouth of the Waikanae River for residential development. Kotuku Parks Ltd (KPL) bought the land in the 1970s, and had already completed the subdivision and development of considerable areas now occupied by houses. The current proposal was Stage IV of a concept plan for staged subdivision of the total area which had been approved by the Kapiti Borough Council in 1989.

Various groups opposed the development outright or sought further significant conditions to be placed on the consent limiting the subdivision size. KPL also appealed against certain conditions imposed on the consent.

One of the appellants was Te Runanga O Ati Awa Ki Whakarongatai Inc, which claimed to be the iwi authority for a number of hapü who held manawhenua over lands on the Kapiti Coast, including the land the subject of the appeals.

The land involved was 3.2 hectares, and most was owned by KPL, except for 2 parcels owned by members of the Goodman family who had occupied it since the 1850s. The proposed subdivision would create 31 lots (between 600 to 1330 square metres) for residential use, and four lots for road, reserve and reserve access. KPL also sought consent for earthworks, including ‘borrowing’ about 65,000 cubic metres of material from two areas of land to the east of the subdivision site to build up ground level on the subdivision to a level equivalent to the 1-in-100 year flood level.

Under the operative district plan the subdivision would be a controlled activity, and the earthworks a discretionary activity.

Held: on a preliminary issue of whether the subdivision overall was a controlled activity (in which case a resource consent must be granted with discretion only as to conditions to be imposed) or a discretionary activity (in which case the consent might be refused), the earthworks were clearly a discretionary activity and they were integral to the subdivision. Consequently, the subdivision overall was a discretionary activity and the court on appeal had jurisdiction to uphold the consents subject to conditions or not, or to refuse consent.

In terms of Part II issues, the proposal would serve the purpose of the Resource Management Act 1991 in providing for the social and economic wellbeing of people, and for their health and safety, in providing housing in an area which had been zoned residential for over 20 years and which was in demand for housing.

With regard to s6(a) (preservation of the natural character of the coastal environment), the area was undoubtedly part of the coastal environment. It was not pristine by any means, but the subdivision site and the borrow areas retained much of their natural sand-dune landform. The subdivision design attempted to preserve some of that character by retaining part of the form of the most prominent dune on the site. However the volume of fill material to be taken from the borrow areas and imported to the subdivision site was large, and the most significant dune would be lowered in height by 3 metres. Expert witnesses for KPL admitted that the development would considerably alter and diminish the dune environment, but contended that the dunes were of no unusual or special character.

The district council contended however that the dunes were a prominent landscape feature within the area, and represented a substantial part of the remaining small number of natural dune formations that adjoined the Waikanae Estuary Scientific Reserve and added to the natural character of the area. The council had accordingly imposed conditions requiring limits on the areas cut and filled so as to retain more of the dune system in its current state.

Other experts on landscape gave evidence that the development would result in the overwhelming of the current visual character of the area and the loss of remaining coastal character which had been significantly affected by subdivisions to date.

The court agreed that the extent of the earthworks proposed would be inappropriate as it would remove a last remaining area along that coast which had not been altered by major suburban development.

In terms of 6(b) (protection of outstanding natural features and landscapes from inappropriate subdivision), the runanga submitted that the site was an important cultural landscape. However, to be "outstanding" feature or landscape the area would need to be quite out of the ordinary on a national basis. While various witnesses argued that s6(b) applied because the land was adjacent to the Waikanae River estuary, which was a significant landscape, the court was unable to find that the proposal itself involved subdivision and development of outstanding natural features or landscapes.

With regard to 6(b) (protection of areas of significant indigenous vegetation and fauna), KPL contended that a proposed fencing of the subdivision from an adjacent scientific reserve in the river estuary and other conditions satisfied any concerns in this regard. The appellant groups however, supported by the runanga, contended that cats and dogs in the subdivision would be a threat to indigenous birds in the reserve. Various experts gave evidence about the importance of the fauna in the reserve. The court found that that the proposed subdivision would not be consistent with s6(b) and the national importance ascribed to protection of significant habitats of indigenous fauna.

In terms of s6(e) (relationship of Mäori with ancestral lands, water), and s7(a) (particular regard for kaitiakitanga), KPL contended that the Goodman family were tangata whenua of the land, based on their long and close association with the site and the Waikanae Estuary, and that the whänau exercised kaitiakitanga over the area. The Goodmans supported the project (which includes land owned by members of the family). It was argued that the views of that whänau should be given "primary weight". KPL had voluntarily protected known urupä on land adjoining the subdivision, and a full archaeological survey had discovered no significant sites or other values associated with the site. The district council supported the view that the Goodman whänau were tangata whenua who could claim mana whenua over the land.

The runanga did not seek to contest the question of who had mana whenua before the Environment Court. They asserted that their hapü had lived in the area since about 1818, and many tribes had occupied the area before them. They also argued that the estuary area in general had special associations for the iwi and hapü of Te Ati Awa. The runanga argued that KPL and the district council had misinterpreted the meaning of kaitiakitanga, in that it had to be exercised in accordance with tikanga Mäori, which required that substantial decisions only be made following hui on marae of the hapü and iwi.

A witness for the Goodman whänau confirmed that the family was from Te Ati Awa, and that they had reached agreement with KPL for their land to be included in the development after full consideration of the implications, including the family’s long association with the land, and Mäori issues. The whänau was not aware of any wider issues, such as waahi tapu or other historic associations concerning the land.

In opposition, the runanga argued that it was the iwi authority for the hapü that comprised Te Ati Awa ki Whakarongatai and that the Waikanae River was a central feature in the tribal lands. Numerous exhibits were produced as evidence for a connection as kaitiaki to the place, the river and estuary. It was argued that even though Te Ati Awa no longer owned the land, as tangata whenua they still had a demonstrable relationship with the area, in that it had "profound landscape and cultural associations, including sites of ancestral occupation and of battles and burials (which remain as waahi tapu)." It was also argued that the ability of the iwi and hapü to be kaitiaki for the river and coastal environment would be adversely affected by the proposed subdivision. It was said that the nature and scale the development would have a "profound effect" on the ecological integrity, natural character and intrinsic values of the area for which they were kaitiaki, to safeguard its wairua and mauri for future generations. It was also said that the subdivision area contained old river paths, and places of ancient ancestral occupation. The runanga accepted however that it was satisfied with a condition in the resource consent that it be notified before earthworks commenced and that an archaeologist would monitor any works. No waahi tapu had been identified by the runanga on the borrow or subdivision areas.

The court found that (following Winter v Taranaki Regional Council EC A106/98) neither section 6(e) nor section 7(a) calls for a consent authority (or the court on appeal) to make any decision about ownership of land, about the extent of the rohe of any iwi or hapü, about who are tangata whenua, or who are kaitiaki, in respect of a particular site or area. Accordingly, the court declined to attempt any finding on any of those points in relation to the development areas.

The evidence established that Mäori, including the Goodman whänau, and other people of Te Ati Awa, had cultural and traditional relationships with the subdivision site and its environs, and that those lands were ancestral lands and places of past occupation by their ancestors. The evidence was not sufficient however to find that there were burial sites or specific waahi tapu or taonga within the development areas and therefore the condition requiring prior notification of earthworks was satisfactory.

The evidence also established that the subdivision site was the subject of kaitiakitanga. As to who might have that responsibility:

"The Goodman family claim to be kaitiaki, and so do Te Runanga. There was no specific evidence about how the whänau or Te Runanga have been accustomed to exercise kaitiakitanga in respect of the sites in the recent past. However we accept that if the proposed development occurs, it would inevitably limit the capacity for exercise of kaitiakitanga in respect of safeguarding the wairua and mauri of the sand dunes, and their association with past occupation by their ancestors."

In terms of s8 (principles of the Treaty of Waitangi to be taken into account), the runanga argued that the consultation required under that provision had been limited to archaeological issues and not broader resource management issues.

KPL had held meetings with Te Ati Awa once the hearings before the council had got underway (the hearing was adjourned to allow this to happen). There was further consultation after the decision had been received. KPL also contended that it had consulted the Goodman whänau whose land comprised part of the subdivision site, and that the whänau had indicated that it held mana whenua over the land; and that under Mäori protocol the whänau could, if it wished, involve other iwi such as the runanga, but that it did not wish to do so. The court laid out the general approach to consultation under s8 as follows:

"We do not accept that a regional or district council, acting in its capacity as consent authority under the Resource Management Act to hear and decide a resource consent application, itself has a duty to consult with Mäori. The general language of section 8 directs a consent authority to take into account the principles of the Treaty of Waitangi. It does not impose on a consent authority the duties of the Crown under the Treaty. The Resource Management Act 1991 contains clear directions about the duty of consent authorities in regard to notification of resource consent applications.

It would not be consistent with those specific provisions to impute to a consent authority an additional duty to consult with Mäori. Nor would it be consistent with the quasi-judicial role of a consent authority that it should itself consult with Mäori, who may end up as submitters in opposition to the application which it has to decide.

Our understanding of the consent authority’s duty to take into account the consultation principle of the Treaty is that it should be on enquiry that there has been consultation where that is appropriate. In that respect, a report to the consent authority on the resource consent application by officials or consultants of the Council should address that issue. However consultation is not an end in itself, but a way of taking relevant principles of the Treaty into account.

In practice, it is the applicant who will need to consult with Mäori, in cases where that is appropriate, to avoid the risk of the application being postponed or refused by the consent authority if it is not satisfied that grant of the resource consent would be consistent with its duty to take into account the principles of the Treaty."

The runanga argued that the consultation during a postponement in the council hearing was too late and that they had never been consulted by council staff at an early stage when an initial environmental assessment was being made. The court found that the council had at an early stage asked KPL to consult with the runanga. However KPL had consulted with the Goodman whänau, who had discouraged consultation with the runanga. For KPL to confine its consultation on that basis was not sufficient however, since the Goodman whänau owned land within the development, were "virtually co-proponents" of the proposal, and stood to gain from it. Consequently, the whänau had an interest in not raising any Mäori cultural issues about the development. Accordingly, consultation had not been adequate to enable the council to take into account the principles of the Treaty as required by section 8.

It was appropriate for KPL to have a proposal prior to consultation, in order to have something to consult about, but it was too late to consult after the applications for resource consents had been notified and submissions received. By then the "the best opportunity for truly fruitful consultation had passed." This conclusion was not altered by the fact that the runanga had such major concerns about the proposal that no compromise agreement could have been reached with KPL in any event. The consultation which the district council requested during the adjournment of its hearing was limited because it focussed on archaeological issues.

In combination, the reliance on the Goodman whänau, the lack of early consultation, and the limited focus of the later consultation meant that overall the consultation with tangata whenua "was not sufficient to enable the primary consent authority to be confident that it had the understanding necessary to take into account the relevant principles of the Treaty in deciding the resource consent applications." However the court could now take the concerns of the runanga into account since it had heard their case during the hearing of the appeal.

In terms of s106 (subdivision consent not to be given when land susceptible to erosion, inundation etc), the evidence showed that the subdivision had been adequately designed to cope with major floods, even if it might be inundated by extremely rare events (tidal waves once every 250-400 years).

The court considered the relevant plans and positive and adverse effects of the proposal under s104. Overall, it found that the proposal would be likely to have positive economic effects for KPL and those who benefit from its business activities, as well as social and economic effects for purchasers of the residential lots. However, it would have adverse effects on the environment in that the natural character of the sand-dune landform in the coastal environment would be lost; it was inconsistent with protection of nearby significant habitat for indigenous birds, including some threatened species; and it had adverse visual effects in a sensitive landscape. The district plan had zoned the area residential but also stated that the coastal environment should not be threatened by developments. The court also consider (under s104 – other relevant matters), the fact that the development was part of an overall scheme of subdivision which had been known for some years. However that fact, and the quality of subdivision developments to date by KPL, was still subject to the statutory requirements of the RMA 1991 and considerations of matters of national importance etc.

Overall, the court concluded that, even after "giving as much weight as we can to the positive benefits, the longstanding residential zoning, and the concept plan approval prior to the present regime" the particular site and proposal were too intensive and would have effects on the environment that were too great. These were the cumulative effects of the damage to the natural character of the coastal dunes, the failure to adequately protect the adjacent significant habitat of indigenous fauna, adverse visual effects, and the "impairment to kaitiakitanga."

This did not mean that no residential use of the site would ever be permitted, but a redesigned proposal would be required.

Commentary: decisions of the Environment Court refusing consent for subdivisions are relatively rare. This appeal is also interesting because the developer relied on the fact that traditional Mäori owners of some of the land involved in the development had supported the proposal. The court found that fact on its own to be inadequate in the face of wider hapü and iwi opposition. In effect, it determined that the Goodman whänau was not the sole body which could claim to be kaitiaki of the area.

 

Parliament

New Zealand Public Health and Disability Bill 2000

No. 48-1

This Bill will restructure the public health system and replace the current system of central funding by the Health Funding Authority and the provision of services through the commercially oriented company structures of the Area Health Boards or Hospital and Health Services. Twenty-one statutory corporations known as District Health Boards (DHBs) will be created, consisting of locally elected representatives and government appointees. These boards will negotiate funding agreements with the Crown to provide health and disability services and will answer to the Minister of Health. The Ministry of Health will have an expanded role in servicing the new system.

The Bill makes a number of specific references to Mäori matters. There is a general requirement that the Act "is to be interpreted in a manner that is consistent with the principles of the Treaty of Waitangi" (cl 4).

The purpose of the Act includes a requirement to "recognise and respect" the principles of the Treaty of Waitangi consistent with the general aims of providing funding and health and disability services which help achieve for New Zealanders the protection of their health, independence and the best care within the funding available, and promoting a community voice on health issues as well as access to services (cl 3).

Included in the objectives of DHBs is the requirement to "in association with the Crown and Mäori, to improve Mäori health outcomes and reduce health disparities between Mäori and other New Zealanders" (cl 17). The Bill then provides a definition of "mana whenua" meaning "the people whose customary authority over their tribal area is derived from their tupuna whakapapa." Among 10 distinct functions of DHBs are functions to:

• "establish and maintain partnership relationships between the board of the DHB and mana whenua in the DHB’s geographical area in order to enable Mäori to participate in, and contribute to, strategic planing for Mäori health improvement in the area"

• "foster arrangements with Mäori, including Mäori exercising mana whenua, in the DHB’s geographical area in order to enable Mäori to participate in, and contribute to, strategies for Mäori health improvement in the area."

• "continue to build Mäori capacity for participating in the health and disability sector and for providing for Mäori needs".

• provide "relevant information" to Mäori to achieve these functions (cl 18(1)(b)-(d)).

Boards of DHBs would consist of 7 members elected by voters in the area covered by the DHB and up to 4 other members appointed by the Minister of Health. In making appointments, the minister must ensure that at least 2 members of every board are Mäori and that the Mäori membership on each board is proportional to the number of Mäori in the population eligible to receive health services in the area covered by the DHB (cl 25(4)).

DHBs are required to establish advisory committees on health improvement, disability support and hospital governance, and each committee must include a Mäori representative (cls 30-32).

Where a DHB has members "not already familiar with the obligations and duties of a member of a board, Mäori health issues, or Treaty of Waitangi issues" then the board must fund those members through training courses approved by the minister on those matters. In addition, boards must keep a record of the "familiarity" each board member has of these issues and the approved training which has been undertaken (3rd schedule cl 5).

The Bill also includes powers for DHBs to dispose of Crown endowment land ie land endowed in hospitals in previous years as a means to generate income for those hospitals. Any money from such sales must be used for the purposes of the DHBs. Any requirement under the Public Works Act to make a first offer of the land to the owners it was originally taken from will still apply. Any such lands already included in the settlement agreements with Waikato-Tainui and Ngäi Tahu will not be affected.

Commentary: this is said to be the first time that social legislation has included a general reference to the Treaty of Waitangi. Because the purposes of the Act are clearly tied to the funding which is available, it does not appear that the reference to the Treaty could be used to argue under the legislation that the Government should increase general funding for Mäori health (if that were an issue). However the Bill is very specific about the priority which DHBs must give to Mäori health and disability services within the funding that is available. The legislation would provide the sort of weight in the health sector which Mäori issues have been gaining in the area of resource management.

Meanwhile, the government has rejected calls for a specific Treaty commitment to be included in the Employment Relations Bill on the basis that in legislating on fairness in workplace relations the government is exercising an "Article One Treaty right" and is extending the protection of the law equally to Mäori and other citizens of the country. In addition, the Treaty "is not appropriate to introduce ... into private arrangements between individuals."

However, the Treaty will be important for the institutions created to administer the new law, such as the Mediation Service, the Employment Authority and the Employment Court. All applicants to be mediators "have been asked about their knowledge and understanding and willingness to work within a Treaty framework." At least one person skilled in that area had been on each interview panel. Further, "State employers, ranging from State-Owned Enterprises to Government Departments, and including hospitals, schools and universities must all operate within the Treaty framework. In using the new law to improve their employment relationships, state agencies will be also operating under their Treaty policies." And in implementing the Act "there will be a focus on communicating with the Mäori community to ensure that Codes of Good Faith take account of Mäori tikanga and practices." (1 /8 /2000. Hon Parekura Horomia)

 

New principles to guide the settlement of historical Treaty claims

20 July 2000 Hon Margaret Wilson

Six key principles are being adopted to guide the government in negotiating settlements of historical claims under the Treaty of Waitangi.

1 Good Faith

The negotiating process is to be conducted in good faith, based on mutual trust and cooperation towards a common goal.

2 Restoration of relationship

The strengthening of the relationship is an integral part of the settlement process and will be reflected in any settlement. The settlement of historical grievances also needs to be understood within the context of wider government policies that are aimed at restoring and developing the Treaty relationship - for example, the government’s "Closing the Gaps" programme and the development of policy to address contemporary claims.

3 Just redress

Redress should relate fundamentally to the nature and extent of breaches suffered. The "fiscal envelope" policy of the former government is abolished, while maintaining a fiscally prudent approach. Existing settlements will be used as benchmarks for future settlements where appropriate. While the Government will continue to honour the relativity clauses in the Tainui and Ngäi Tahu settlements, they will not be included in future settlements. The reason for this is that each claim is treated on its merits and does not have to be fitted under a predetermined fiscal cap, as was the case with the fiscal envelope approach. The appropriations required for settlement purposes will be considered on an annual basis.

4 Fairness between claims

There needs to be consistency in the treatment of claims. In particular "like should be treated as like" so that similar claims receive a similar level of fiscal redress.

5 Transparency

The government will give consideration to how to promote greater understanding of the issues. First, it is important that claimants have sufficient information to enable them to understand the basis on which claims are settled. Secondly, there is a need to promote greater public understanding of the Treaty and the settlement process.

6 Government-negotiated

The Treaty settlement process is necessarily one of negotiation between claimants and the government as the only two parties who can, by agreement, achieve durable, fair and final settlements. The government’s direct negotiation with claimants will ensure delivery of the agreed settlement and minimise costs to all parties.

In addition:

• Public conservation land is not readily available for settlement of Treaty claims.

• Crown minerals (including petroleum), which are owned and managed in the national interest, will not be included for consideration in the historical claims process. However, the government will explore ways to address the Crown’s contemporary obligations to Mäori under the Treaty with regard to natural resources.

• Cabinet will consider a proposal for a comprehensive review of the Treaty of Waitangi Act

• The government will pay "special attention" to mandate and cross-claim issues and work closely with individual claimants. A flexible approach is required on these issues and different approaches will be needed for different claimant groups.

Commentary: the lack of a detailed Treaty settlement policy from the Labour Party prior to the general election is reflected in this statement. It suggests that there will be no major departure from the basic policy under the previous government, but rather a different emphasis, in that settlements will be seen simply as a component of the "Closing the Gaps" Mäori policy, rather than a leading indicator of how well government is dealing with Mäori issues.

With regard to the fiscal envelope, that was officially abandoned by the previous government. And as this policy recognises, the harsh relativity clauses of the Tainui and Ngäi Tahu settlements make it difficult for any government to stray too far from the $1 billion figure for all major settlements.

Key new elements are the proposal for information to be provided to the public about the background to the settlements and a review of the Treaty of Waitangi Act – both of which would be problematic for any government, but are long overdue.