August 2000 Contents

Waitangi Tribunal

Tauranga-Moana inquiry directions

Other Courts and Tribunals

High Court – challenge to a marine reserve sought by a hapü

High Court – finding reps for Mäori land rating purposes

High Court – family protection, Mäori estate, Mäori land

High Court – 2 gigahertz auction, the final challenge

High Court – Chief Judge power to correct errors

ERMA – human genes in cows

Parliament

Tariana Turia & Post Colonial Traumatic Stress Disorder (PCTSD)

Waitangi Tribunal

Memorandum-Directions of the Presiding Officer of the Tauranga Moana District Inquiry

 

Wai 215: doc 2.286, 8 August 2000 and doc 2.288, 17 August 2000. Judge RR Kearney, Presiding Officer.

The Waitangi Tribunal sitting to hear claims in the Tauranga Moana district inquiry has expressed concern that its process has become "rather cumbersome" and that a "significant change in the direction and pace of the Tauranga Moana inquiry is required". It has issued two directions detailing how it intends to "tighten" its process and make it more relevant to an eventual settlement.

Before it will allocate hearing time to a claimant group, the tribunal will now require those claimants to have filed a fully particularised statement of claim, a detailed hearing agenda and all their technical and historical evidence. The tribunal has also directed that any claims filed after 10 November 2000 covering all or parts of the Tauranga Moana inquiry district will not be heard within the current inquiry.

The tribunal will also produce a Tauranga Moana Raupatu Report as soon as possible. To this end, it has scheduled time to hear claimants’ remaining raupatu evidence and it has invited the Crown to present evidence and submissions in two weeks of hearings in the first part of 2001. The report will cover events leading up to the signing of the Treaty of Waitangi and Crown-Mäori relations in Tauranga from 1840 to 1864, including the Church Missionary Society purchase of Te Papa and the return of lands by the Commissioners of Tauranga Lands. While the tribunal prepares its raupatu report, it will continue its inquiry into remaining issues.

 

Other Courts and Tribunals

CRA3 Association Industry Association Inc v Minister of Fisheries & Others

CP317/99. High Court. 24 May 2000. McGechan J

This was a challenge to decisions of the Minister of Fisheries allowing the establishment of a marine reserve by an association representing lobster fishermen. In 1998 the Director-General of Conservation and Ngäti Konohi made a joint application to declare 2770 hectares of seabed and foreshore a marine reserve near Gisborne.

The CRA3 Association objected on the grounds that the proposed reserve would interfere with commercial fishing rights. The Minister of Conservation decided to approve the application, subject to a boundary change to take account of some of the concerns of the association. Under s5 Marine Reserves Act 1971 the minister then made a recommendation to the Governor-General that the reserve be established by Order in Council. That recommendation was referred to the Minister of Transport and Fisheries to seek their agreement or "concurrence" to the recommendation. After considering the issues, including objections of the CRA3 Association, the Minister of Fisheries agreed that the reserve should be established as recommended. The reserve, Te Tapuwae o Rongokako, was accordingly gazetted. This "concurrence" of the Minister of Fisheries was challenged on grounds of error of law, unfairness and failing to take into account relevant considerations.

Held: the application should be dismissed. Specifically:

• There was no error in the Minister of Fisheries taking the view of the Minister of Conservation on the need for the reserve as a starting point before the Minister of Fisheries came to his own view about the possible effect on commercial fishing. He was also entitled to consider the advantages to the general community of the reserve as against the disadvantages to commercial fishers.

• There was no unfairness in the Minister of Fisheries referring a draft copy of his "concurrence report" to the Department of Conservation for comment.

• The Minister of Fisheries had not failed to take into account considerations by not seeking or waiting for a detailed assessment of the effect of the reserve on particular quota, when he already had a reasonable amount of information on that topic before him.

At the beginning of the judgment, the High Court noted that originally the proceedings had been brought in the name of "Ngäti Konohi, hapü, Whangara". However, since "iwi and hapü do not, as such, have identity as legal persons enabling citation in such terms as parties in the High Court proceedings", that name was struck out and an individual, Ms Reid, was included as a representative of the hapü. The court noted that the position differed from that which prevails before the Waitangi Tribunal (where the legislation refers to the ability of a "group of Mäori" to bring a claim).

Commentary: this case is of minor interest because it is a challenge to a marine reserve where a hapü was a joint applicant with the Director-General of Conservation.

 

Whakatane District Council v Peter Piipii Keepa

M 7/00. High Court Rotorua. 27 June 2000. Paterson J

The Whakatane District Council sought a declaratory judgment relating to the rateability of land once known as Ruatoki Blocks 1, 2 & 3, which had been partitioned into 382 blocks and now had between 500 and 600 owners. Some of the owners, including Mr Keepa, alleged that the blocks were exempt from rating. The council argued that the exemption had been removed by a gazette notice in 1964. It applied, ex parte, to have Mr Keepa nominated as the appropriate representative defendant. The council’s application was not certified pursuant to the rules of court to be correct, and Mr Keepa subsequently objected to being a representative defendant and obtained an order that there should be a rehearing of the application.

The district council relied upon rule 78 of the High Court Rules, which stated:

"Where two or more persons have the same interest in the subject-matter of a proceeding, one or more of them may, with the consent of the other or others, or by direction of the Court on the application of any party or intending party to the proceedings, sue or be sued in such proceeding on behalf of or for the benefit of all persons so interested."

It also relied upon rule 81(g), which allowed the court to make representation orders where a local authority, public body or other representative body is the plaintiff.

Held: Rule 78 of the High Court Rules contained sufficient powers to enable the court to make the order. This was a case in which there clearly should be a representative defendant. The proceedings affected all the owners of the Ruatoki blocks and it would be impracticable and inexpedient to direct service on more than 500 owners.

The court’s concern was that there was adequate representation and that it was properly funded. In a matter of sufficient public interest, the court may wish to appoint an amicus. It doubted that a representative order appointing a particular party as the representative defendant should be made ex parte, unless the proposed defendant’s consent had been given. "It is difficult to see that all matters can adequately be addressed if an order is made without the knowledge of the intended defendant."

Mr Keepa was an appropriate representative defendant because he himself had made an application to the Mäori Land Court to have the matter at issue in this case determined. It was not necessary to obtain the consent of the other persons who may have an interest and the court could direct that there be a representative without the need for a hui to obtain approval.

Accordingly, the court appointed Mr Keepa as representative defendant in the proceedings, gave leave to the Tuhoe-Waikaremoana Mäori Trust Board to become a defendant to the proceedings if it so desired, and directed the district council to give public notice that it had applied for a declaratory judgment, that Mr Keepa had been appointed representative defendant and that any person with an interest in the proceedings could apply to be joined in his or her own right provided the application was made by 31 July 2000. It also directed the council to send a letter to every owner having an interest in the Ruatoki blocks to inform them of the proceedings and of their right to be joined. The letter could provide a summary of the position taken by the council and by Mr Keepa.

As to costs, in normal circumstances, it would be appropriate to make an order in favour of Mr Keepa because the council was, in effect, seeking the court’s assistance in the appointment of a representative defendant. However, in this case, costs should lie where they fell given that Mr Keepa was legally aided and he was the logical person to appointed as a representative defendant, having already initiated proceedings in the Mäori Land Court to have the matter determined.

 

Re the Estate of Ihipera Ngahirapu Whareaitu

M 47/00. High Court Rotorua. 11 July 2000. Paterson J

Mrs Whareaitu died in a house fire in 1991 leaving an estate of modest value comprising a dwellinghouse, some interests in Mäori land and a small amount of cash. The value of the house property was about $80,000. It was once Mäori land but in 1968 Mrs Whareaitu had its status converted to general land. The value of the Mäori land was unknown, but was not expected to be great. Under Mrs Whareaitu’s will, the house property was left in equal shares to her son, Lawrence, and to Pita, her natural son who had been adopted by his grandparents. Pita was, therefore, not legally a child of Mrs Whareaitu when she died. The balance of her estate was left to Lawrence, a daughter, Joanne, and to her adopted son, Anthony, who was the natural son of another daughter, Vanessa. The will did not make provision for Vanessa, or for the children of two other daughters of Mrs Whareaitu who had pre-deceased her.

At the time of the proceedings, Pita was 59 years old and was living in the house property. He had lived there for considerable periods and had contributed to its maintenance and development both by way of work and by limited financial contributions. In 1965, he had inherited a share of the house property from Mrs Whareaitu’s brothers and sisters and he then transferred his share to Mrs Whareaitu. He gave evidence that he had a very strong and special relationship with Mrs Whareaitu. He received income support and had no dependants. Lawrence was 49 years old and had lived in the house property for approximately 39 years, although he now lived in his own home with his partner and his two children. He had helped both Mrs Whareaitu and Pita to maintain the property.

The plaintiffs in the proceedings were Vanessa, Joanne and Anthony, together with five of Mrs Whareaitu’s grandchildren, who were all children of one of the daughters who had pre-deceased Mrs Whareaitu. The children of the other daughter who had died had chosen not to take part in the proceedings. The plaintiffs sought relief under the Family Protection Act 1955 in respect of both the house property and the Mäori land. They attached strong cultural significance to the house property, which had been the family home for them, as well as for the respondents. The plaintiffs argued that the house property should be vested in a family trust and that the Mäori land should be vested equally in the surviving children of Mrs Whareaitu and the children of her two deceased daughters. The effect of those submissions would have been to dispossess Pita of any interest in the estate.

The proceedings had been initiated in the Family Court and had proceeded to the setting of a fixture when the Family Court queried whether it had jurisdiction in light of s102 Te Ture Whenua Mäori Act 1993. That section provided that the High Court had jurisdiction and authority in relation to the hearing and determination of proceedings in respect of testamentary and other matters relating to all estates of deceased persons (whether or not Mäori) comprising in whole or in part any beneficial interest in Mäori freehold land. As this was such an estate, the Family Court ordered that the matter be transferred to the High Court.

Held: Whether or not Mrs Whareaitu had breached her moral duty towards the plaintiffs had to be determined in light of all the circumstances and against the social attitudes of the day. Applying Williams v Aucott [2000] NZFLR 532, the test was whether Mrs Whareaitu had made adequate provision for the proper maintenance and support of the plaintiffs. The court was required to take a broad approach and moral and ethical considerations were to be taken into account in determining the scope of that duty. "There are not only financial and economic considerations but the recognition of belonging to the family and of having been an important part of the overall life of the deceased."

The court was satisfied that all the plaintiffs, as well as Pita and Lawrence, "belonged" to Mrs Whareaitu’s family. While their financial circumstances differed, none was in a strong financial position. Mrs Whareaitu had breached her moral duty to the plaintiffs and relief should be granted to the extent that the estate permitted. Given the estate’s size, however, it was neither possible nor appropriate to make a fine distinction between the breach of moral duty to the various individuals.

While relief should be granted to the plaintiffs, it was not possible to make some of the orders sought given that some of Mrs Whareaitu’s grandchildren had elected not to make a claim and the court could not make orders benefiting them. Other orders sought were inappropriate. Pita was a deserving beneficiary of an interest in the estate and there were no grounds for excluding him completely. Further, courts were reluctant to create trusts "unless absolutely necessary" and it was generally preferable to operate on the "clean break" principle, particularly where animosity existed between the parties as it did in this case.

The court ordered a one-eighth interest in the house property to be transferred to each of Vanessa, Joanne and Anthony, with a further one-eight interest to be transferred to the five plaintiff grandchildren equally. All these interests were to be transferred subject to two successive life interests, the first in favour of Pita and the second in favour of Lawrence. One quarter of the remaining one half interest in the house property was to be transferred to Pita absolutely, and the other quarter to Lawrence absolutely. The effect of the order was that the four children, the five grandchildren and Pita had an interest in the house property, albeit in different proportions, with Pita and Lawrence having the right in succession to live in the house, paying all outgoings and maintaining the property. The plaintiffs would take possession of their vested interest on the death of Pita or Lawrence, whoever died last.

The court further ordered that a one-fifth interest in all Mrs Whareaitu’s interests in the Mäori land be transferred to each of Vanessa, Joanna, Lawrence and Anthony, with the remaining one-fifth interest to be transferred equally to the five plaintiff grandchildren.

The High Court left the issue of whether the Family Court had jurisdiction in respect of an estate comprising a beneficial interest in Mäori freehold land "to be determined in an appropriate case at an appropriate time".

 

New Zealand Mäori Council v Attorney General & Minister of Communications & Minister of Commerce

CP130/00. High Court Wellington. 10 August 2000. Doogue J

In Everton v Attorney General & Ors (CP121/00 & 68/99) the NZ Mäori Council had been joined as a defendant in proceedings seeking to halt the auction of two gigahertz radio frequencies. The High Court refused that relief and Everton and the NZ Mäori Council appealed that decision to the Court of Appeal which upheld the High Court decision (see Mäori LR July 2000 p 1).

In this proceeding the NZ Mäori Council itself applied for an interim order to halt the auction. It was argued that the situation had changed since the previous proceedings because the auction had actually commenced and some different evidence and argument was available.

The High Court found there was, in substance, no difference from the earlier proceedings and in a short judgment dismissed the application, commenting that the judgment should not be read as an absence of sympathy for the promotion and retention of the Mäori language, which the courts have "regularly upheld" but "I only wish more constructive steps were taken to pursue it than applications such as the present".

 

Bennett & Others v Mäori Land Court & Lloyd

CP5/99. High Court Whangarei. 11 August 2000. Hansen J

In 1957, Mrs Lloyd acquired 72.33 hectares of Mäori freehold land at Mangonui in her name. She had married in 1933 and had two daughters and three sons. In 1977, Mr and Mrs Lloyd received an advance from the Department of Mäori Affairs and used it to build a house on the land, with a mortgage of the land back to the Department signed by both of them. Mrs Lloyd died in 1992, Mr Lloyd in 1994.

In 1964, Mrs and Mrs Lloyd had fallen behind with their rates. The land was transferred to the Mäori Trustee as a protective measure, with a 50 year lease back to Mrs Lloyd and a trust declared in favour of Mrs Lloyd as beneficiary (this was assumed - the documentation had been lost). The trust was terminated in 1987, but the shares in the land vested not in Mrs Lloyd but equally in her three sons. This was because in 1979 (during the period that the land was under lease to Mrs Lloyd) the Mäori Land Court had received an application in her name asking that the whole of the land be vested in her sons in equal shares so as to provide them with a site for a dwelling (s440 Mäori Affairs Act 1953). The application was signed by Mrs Lloyd, but not witnessed.

The application was heard by the Mäori Land Court in October 1979. Mrs Lloyd was not present. She had earlier written to the court saying that she was ill and that her husband would attend. The court minutes recorded that he attended on her behalf. The application was granted.

When Mrs Lloyd died in 1992, her husband discovered that the land was not registered in her name, and that the three sons were owners. He swore an affidavit that he had not been in court in 1979. He applied to the Chief Judge of the Mäori Land Court to cancel the order vesting the land in the three sons, on the basis that the vesting order had been made in error (ss44-45/1993). The Chief Judge refused.

In these proceedings the executor of his estate and the two daughters sought to review both the 1979 decision of the Mäori Land Court and the decision of the Chief Judge.

Held: both decisions should be set aside.

The 1979 order

The application of Mrs Lloyd to have the land set aside for a dwelling was not witnessed, nor was it endorsed at the foot by the three sons, as was required by s440(5)/1953 and the Mäori Land Court rules respectively. Those requirements were directory, and not mandatory, so "substantial compliance" with them (eg, other evidence of the identity of the person signing), would have been sufficient. But there was no other such evidence in this case, so there was not substantial compliance and there were grounds for setting the vesting order aside.

Section 440/1953 provided for land to be vested specifically for the purpose of a house site. The order might be cancelled if no house were built within five years. The need for a house site need not be the sole purpose of the transfer, but it must be the substantial purpose and not a mere incidental purpose.

On the facts, the transfer of 72.33 hectares could not have been substantially for the purpose of a house. The "unavoidable inference" was that s440/1953 was being used as a convenient mechanism to vest land in the three sons. This provided a further ground for setting aside the order. Whether Mr Lloyd had or had not been present at the 1979 hearing did not therefore have to be considered (and findings of fact on that issue would be required, which the High Court should not embark on).

However, s77/1993 provides that orders of the Mäori Land Court are final after 10 years, except where the Chief Judge under s44/1993 cancels or amends an order. Consequently, if the vesting order was in error it could only be corrected by the Chief Judge.

The Chief Judge’s decision

It was contended that the Chief Judge had acted in breach of natural justice and in error of law. He had called for a report from a Registrar of the Mäori Land Court. That report concluded that because the Mäori Affairs Act 1953 did not require Mrs Lloyd or anyone representing her to actually be in court when an order under s440/1953 was being considered, there was no error upon which the Chief Judge could act. The Chief Judge dismissed the application on the basis of that report without a hearing and without the applicants being invited to comment on the report. The applicants claimed that this was a breach of natural justice, while counsel assisting the court maintained that there was nothing in the legislation to imply that such a step was required.

The court found that when a s44/1993 application is received, the Chief Judge may refer it to the land court or the Mäori Appellate Court for a report, deal with the application without holding formal sittings or hearing the parties in open court, and even state a case on a question of law to the High Court (s46/1993). There is no right of appeal against a decision to dismiss an application, although if an order is made following a decision of the Chief Judge, that order may be appealed. A fresh application can be made on the same matter even if an earlier application is dismissed.

In this case it was appropriate for the Chief Judge in the first instance to delegate the matter to the registrar, since it essentially required an examination of the relevant court records. But the applicants should have been given an opportunity to comment on the registrar’s report. The legislation contemplated that applicants would be heard if a hearing took place, and that right should not be excluded simply because the Chief Judge adopted less formal procedures. "The nature of the interest is the same, as is the essential nature of the power being exercised."

In addition, the absence of any right of appeal from the decision of the Chief Judge supported the implication that there is a right to be heard in this sort of situation. If the Chief Judge obtains a report which recommends that an application be dismissed, and proposes to act on it, fairness requires that the applicant should be able to comment on it.

And in this case there were at least two substantial reasons why the order of the land court in 1979 under s440/1953 should never have been made. The conclusion of the registrar and the Chief Judge that the order was not in error because no one had to be present in court (based solely on the ground raised in the application – the alleged absence of Mr Lloyd) and that ‘there were no other grounds to cancel the order’ was clearly wrong in law. It was "inconceivable" that the application would have been dismissed had the errors been noted, as they went to the basic jurisdiction of the land court to make the order in the first place.

The matter should be referred back to the Chief Judge for his re-consideration on the basis that there were two respects in which the 1979 order was in error. The court rejected arguments that the applicants had delayed to long (five years) before taking this application for review, or that they could simply make a fresh application under s44/1993 to the Chief Judge.

Commentary: this case makes some interesting comments about the power of the Chief Judge to correct errors, and the process he should follow when considering applications.

The land court was no doubt aware in 1979 that the full 72.33 hectares were not required for a house site when it made its order under s440/1953. One wonders how many other such orders were made in similar circumstances.

On a technical note, the court commented that s213/1953 (transfer by vesting orders – now s164 /1993), and associated provisions requiring transfers of interests to be confirmed, could not apply to the transfer under s440/1953 to the sons. That provision was quite separate and aimed at assisting multiple owners to more easily deal with their interests between each other and reduce the number of shareholder/owners (see Raukawa Manahi v Pukahukiwi Kaokaoroa No 1 ((1987) 7 Waiariki ACMB 142 (MAC)).

 

An application by AgResearch to the Environmental Risk Management Authority concerning genetically modified cattle

GMF98009. 21 July 2000. Decision of a Special Committee of the Authority appointed under s19(2)(b) Hazardous Substances and New Organisms Act 1996. Professor B Scott (Chairman), H Hughes, B Falconer, Dr O Sutherland, Professor C Mantell, L Welsh

Background

In December 1998 the NZ Pastoral Agricultural Research Institute Ltd (AgResearch) applied to the ERMA to field test, in the Waikato, cattle which had been genetically modified in three distinct ways. In November 1999 ERMA gave authority to Agresearch for field testing of two of the modifications - to insert additional cattle milk casein protein genes, to increase casein content of milk and to inactivate genes for ß-lactoglobulin to reduce its content in milk.

This decision concerned field testing of the third modification, the insertion of the human myelin basic protein gene. AgResearch already had authority to develop genetically modified embryos. This application was about inserting those embryos into cattle and field testing the resulting live animals in containment. If the experiment were successful, the cows would produce the human protein, myelin basic protein, in their milk. AgResearch intended to produce one herd of up to thirty genetically modified cattle. In any event, the total number of cattle involved in the field test would not at any one time exceed 200 animals.

The Special Committee included one external member, Leatrice Welsh, as an expert in Mäori culture and traditions. It considered 30 submissions on the application.

As well as a public hearing, the Special Committee invited members of Te Kötuku Whenua, of Ngäti Wairere, the hapü that claimed mana whenua over the land on which the field test was to be undertaken, to provide further information on the risks to the relationship of Mäori and their culture and traditions with taonga. The committee also heard submissions from Ngä Kaihautü Tikanga Taiao, the Mäori advisory committee of the authority (established under cl 42, 1st Schedule HSNO Act 1996). Consideration of the third application was adjourned while further information on Mäori issues was sought, including further information from Agresearch on the spiritual/cultural impact of its proposal.

The application was considered under ss 37, 40-45 and Part II HSNO Act 1996 and the relevant parts of the HSNO (Methodology) Order 1998. The Special Committee was required under the legislation to consider not only the adequacy of the containment regime, but also the possible effects of the new organisms, including animal welfare issues, risks to the environment, risks to public health, risks to the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga (s6(d)) and the maintenance and enhancement of the capacity of people and communities to provide for their own economic, social, and cultural wellbeing and for the reasonably foreseeable needs of future generations. In addition, the principles of the Treaty of Waitangi and in particular the requirement to consult effectively had to be considered (s8).

Decision on general environmental risks

The Special Committee found that the probability of escape from the proposed containment regime was very low and that the risk of escape through sabotage of the containment facility was minimal.

The Special Committee also imposed a control that the applicant engage in ongoing consultation with Ngäti Wairere over disposal of biological material derived from genetically modified cattle, including the cattle themselves. The applicant was required to comply with the Animal Welfare Act 1999 and regulations.

The Special Committee found no identifiable risk to the environment from cattle within the containment facility itself. The probability of escape and the creation of a self-sustaining population or entry of the cattle undetected into the national herd was low. And the cattle would have no different effect on the natural environment than conventional cattle – they could not interbreed with any other native or valued fauna, nor could they pose any threat to native or valued flora greater than that of conventional cattle. Risks to the wider environment were therefore negligible. Risks to public health were also found to be negligible. Various concerns about long-term unanticipated health effects were more relevant to applications to release new organisms into the environment as opposed to organisms kept in containment for field tests.

Ngäti Wairere concerns

In terms of risks of the application to the relationship of Mäori and their culture and traditions with taonga, the committee noted that Ngäti Wairere had expressed concerns regarding all three gene applications on the basis that genetic modification is contrary to their spiritual guardianship of the mauri or life force of all living species. However, their concerns were strongest in relation to the application to insert a human gene construct into cattle.

Specifically, the application concerned the development of cattle from embryos in which a synthesised gene containing the sequence that codes for human myelin basic protein (MBP) was present. That modification and creation of the embryos had already been carried out in AgResearch’s laboratory under authority delegated by ERMA to its Institutional Biological Safety Committee (IBSC).

Ngäti Wairere argued that:

• Genetic modification involving different species was contrary to their tikanga, because it interfered with the whakapapa as well as the mauri of both species.

• Both whakapapa and mauri would be interfered with even though the genetic sequence inserted in the embryo had been synthesised from information obtained from an international gene bank, which would have used DNA originating from a non-Mäori person.

• Their kaitiakitanga (spiritual guardianship) extended to imported species such as cattle, which had a long presence in NZ and which could be regarded as a valued species in terms of s6(d) HSNO Act 1996.

• To proceed with genetic modification of any kind, but transgenic modification in particular, could result in members of Ngäti Wairere suffering adverse health consequences and even death.

It was accepted that there was nothing AgResearch could do to address this basic concern. Ngäti Wairere and Ngä Kaihautü Tikanga Taiao (the Mäori advisory committee) had recommended that the applicant be advised to withdraw the application pending the outcome of the Royal Commission on Genetic Modification, in order to provide time for Ngäti Wairere to further assess the risks of genetic modification technology to Mäori, and to understand where it sits with their tikanga.

The committee noted that it had to deal with the application and had no authority to await the findings of the Royal Commission.

Majority decision

The majority of the Special Committee favoured approval of the application with controls. They held that while s6(d) (the relationship of Mäori with their culture and taonga) used the same wording as the RMA 1991, cases under the RMA 1991 raised different issues than those under the HSNO Act in that they concerned developments which might affect particular lands of an iwi and were concerned with "tangible or physically distinguishable taonga". The ERMA was required to assess the weight to be given to taonga "which are spiritual beliefs themselves, rather than something physically distinct to which spiritual values attach."

The majority found cases under the RMA 1991 helpful however in that they suggested that the courts had been "reasonably pragmatic in their decisions, within quite wide bounds." In Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188, the High Court had said that Mäori spiritual values should not be trampled on. But in Watercare Services Limited v Minhinnick [1998] NZRMA 113, dealing with a sewer pipeline crossing waahi tapu, the Mäori dimension was held to be important but not decisive, even if Mäori issues were specifically involved. A "balanced judgment" was required and "a value judgement on behalf of the community as a whole" was required. And in Mahuta and Ors v Waikato Regional Council the Court held that "perceptions which are not represented by tangible effects do not deserve such weight as to prevail over the proposal to defeat it". The Environment Court appeared to have been ready to protect waahi tapu where Mäori links to the lands and sites concerned were clear and other options were available to the applicant (eg CDL Land New Zealand Ltd v Whangarei District Council [1997]).

This application was different because ERMA was dealing with the spiritual beliefs of whakapapa and mauri directly and Ngäti Wairere were claiming that those beliefs absolutely precluded genetic research of this kind. Also, there was no alternative course which AgResearch could take to satisfy Ngäti Wairere concerns.

It was accepted that the beliefs of Ngäti Wairere were deeply held. However, the majority questioned whether the interpretation of their traditional beliefs advanced by Ngäti Wairere was widely held:

"given that those beliefs would have been developed well before human-kind had any appreciation of the evolution of species by genetic mutation and selection, or of the role, function and separability of genes, and the proteins they code for, or of the scientific possibility of transposing gene sequences between species. Matters of belief of course, can only be determined by the people who hold them."

The majority also had difficulty in seeing how inserting a synthesised genetic sequence coding for a protein present in humans should, through interference with the whakapapa or mauri of the cattle to be produced, lead to the claimed adverse consequences to Ngäti Wairere (ie, illness and death).

The beliefs which would be affected relative to the benefits of the research did not justify declining the application (in considering the benefits, only the knowledge which would be gained from the experiments was considered, not future prospects that the research might lead to benefits for humans).

The Treaty reference in s8 HSNO Act 1996 required the authority to:

• make informed decisions

• ensure that consultations had been held with Ngäti Wairere to this end

• act reasonably and in good faith

• provide active protection for Mäori interests and taonga

• recognise Ngäti Wairere’s rangatiratanga over its ancestral lands and taonga.

The hapü maintained that their taonga (whakapapa and mauri) required active protection and they alone could determine whether the proposal was compatible with their taonga. This was essentially the same position argued in Otararua Hapü v Taranaki Regional Council where the Environment Court noted that the same wording in s8 RMA 1991 had to be read in the context of the whole Act, and did not require that decisions must be made by Mäori in accordance with their values and laws.

It was up to the authority to make the decision in this case. As to consultation, this had been carefully undertaken, and the authority was entitled to proceed even where its Mäori Advisory Committee suggested otherwise, because the authority had fully informed itself of the Mäori view. Ngäti Wairere had been consulted on a number of occasions and over many months, so the authority was well informed of their views.

While there was a need for active protection of whakapapa and mauri as taonga, spiritual beliefs are different from taonga as they have come to be understood in the cases before the courts and the Waitangi Tribunal, and are not amenable to active protection in the same way as more tangible taonga such as land, waters, economic resources such as fisheries and geothermal steam, and Mäori language itself. However:

"none of the Treaty cases before the Courts, or the Waitangi Tribunal have addressed the nature of the Government’s obligation to actively protect Mäori spiritual beliefs, such as whakapapa and mauri, in contrast to tangible taonga with spiritual significance."

Ngäti Wairere and the Mäori Advisory Committee were essentially seeking that applications should be determined "according to the tenets of Mäori spiritual beliefs, as these may be defined variously and from time to time." This was taking the reference to the Treaty in s8 too far. While every effort should be taken to respect Mäori spiritual beliefs, the community as a whole could not be asked to accept such beliefs as arbiters of whether genetic research should proceed under the HSNO Act 1996. That conclusion was consistent with decisions in major Treaty cases, including the Privy Council decision dealing with broadcasting assets, where it was said that "the Crown in carrying out its obligations is not required in protecting taonga to go beyond taking such action as is reasonable in the prevailing circumstances".

In addition, genetic research is widely pursued and taught in NZ, there were proven benefits in a number of areas, and it would be unusual for NZ not to participate in this area of scientific endeavour, particularly in agricultural research. If this application were declined, then all transgenic research might have to be terminated. The existing approvals for creating the embryos in the first place would be affected. And the Mäori Advisory Committee had indicated that Ngäti Wairere views were shared by other iwi.

"The requirements to take into account the relationship of Mäori and their culture and taonga, and the principles of the Treaty do not extend to requiring the community as a whole to accept Mäori spiritual beliefs as the determinants of applications to conduct genetic research under the HSNO Act, where the other requirements of the Act have been met."

The concerns of the hapü could not be met by the framework of the Act and decisions on specific applications. Wider issues were raised which should more suitably be put before the Royal Commission.

The majority concluded that AgResearch should be required to establish a working group with Ngäti Wairere, to monitor the progress of the field trial, and also to provide information so that the hapü could consider further the impact of genetic modification technology on their tikanga. A full scientifically researched health risk assessment sought by the hapü was not practicable. However, AgResearch should note the issue and consider providing support to the hapü to consider the impact of genetic research being undertaken on their ancestral land. This was particularly so since AgResearch land was owned by Tainui, putting an onus on AgResearch to "facilitate the resolution of the issues which stand between the continued development of its scientific work and the concerns of the iwi which claims mana whenua over the land on which it is conducted".

The principal benefit of the research was the scientific knowledge expected to be gained on the reproductive biology of cattle, whether genetic manipulation could result in a human protein appearing in milk, and whether that could be maintained in successive generations of cattle. Indirect benefits would be economic benefits and research skills and capacity arising from such research being undertaken in NZ. Long term benefits were speculative and not considered for this evaluation, although the general gain in knowledge was relevant. The research was a "legitimate and valuable scientific endeavour", particularly given the significance of dairy and other pastoral industries to NZ.

The application should be approved with controls including:

• Disposal of all biological material in consultation with Ngäti Wairere

• The creation of a Working Group with Ngäti Wairere, to enable the hapü "to monitor the implementation and progress of the field test, and to provide a forum for the exchange of information on the science of genetic modification."

Minority decision

The Mäori expert on the committee, Leatrice Welsh, considered that the research should not proceed, on the basis that:

• "Whakapapa is the foundation on which all tribal Mäori values, including spiritual and ethical values are based. It is part of protocol to first know who the people are before looking at any of their values." It establishes the origins of individual Mäori.

• Whakapapa also ties people to the physical features (mountains, rivers etc) of the areas in which they reside, and establishes their "historical precedence" there. It provides individuals with tangata whenua and kaitiaki status, and rangatiratanga to the natural and physical taonga which Mäori are "spiritually charged to conserve".

• The active protection of taonga referred to in court cases included Mäori language, which includes intangible values, in particular the value of human beings, the most important taonga.

• Whakapapa is the central value which maintains the mauri of all living taonga. Altering the gene structure of species compromises the integrity of whakapapa and is inherently against tikanga Mäori. The crossing of human genes with other species is abhorrent to some Mäori.

• The risks to Mäori of genetic engineering, in particular the possible impact to native fauna and flora of species barrier crossing had not been adequately assessed in Aotearoa.

Ngäti Wairere were:

"one of the many hapü and descendants of the great waka Tainui, and are the kaitiaki of Papatuanuku, their ancestral lands (whenua tuku iho), and of the culture and taonga which have been handed down to them in written and oral form through tauparapara, whaikörero and waiata. These taonga are theirs to uphold, and it is therefore inherently incumbent upon Ngäti Wairere to ensure that their tikanga values and culture are expressed in the context of this application - and respected - even though this has involved them in the uncomfortable process of subjecting their sensitive spiritual values to the scrutiny of the Authority in culturally inappropriate surroundings."

ERMA did not have a process that could properly understand and assess the cultural and spiritual risks to the hapü. The consultation process had clearly showed that there were "significant risks" to Ngäti Wairere’s cultural, physical and spiritual values and to their health and well-being which could not be ameliorated, except by the research being abandoned. The benefits alleged for the research, the collection of information, were far outweighed by the risks.

As to the actual effects on the hapü:

• The research posed risks "to the mauri of the people of Ngäti Wairere, their ancestral lands, water and other taonga, including that of the cattle." The protective powers of the mauri would cease until restored by appropriate means, if they could be restored at all.

• Mauri was the "protective power or quality which is present in all elements, the sky, stars, seasons, animals, humans, and all other things." Should the mauri ora or life principle of man become noa (free from tapu or defiled), "then his physical, intellectual and spiritual welfare is seriously endangered and he is exposed to many perils."

• The contamination or destruction of natural features would destroy the mauri and unbalance the wairua. The genetic inter-relationship of Mäori to the environment would mean that "Mäori will continue to be affected until contamination ceases and mätauranga Mäori (knowledge) is accorded equal recognition."

• The pollution and desecration of Papatuanuku, and the contamination of ground water with genetic waste, was a direct violation of the mauri and wairua of those physical taonga, which were to be actively protected.

• Ngäti Wairere had concluded that illness, (mate Mäori), hopo, and even death might come to their hapü. Those were known phenomenon to Mäori and should not be lightly discounted, even if they were difficult for the general population to understand. Had the health risk assessment of the metaphysical effects of this research on the hapü been undertaken as requested that might have gone some way to alleviating their concerns.

• Ngäti Wairere were carrying a burden on behalf of all Mäori. They might experience therefore a "period of grieving, not only for themselves, but for past generations who set the kawa and tikanga, and for future generations faced with the turmoil created by the action of mixing genes between species. And they may endure a state of negative noa (powerlessness, helplessness and weakness) until the spiritual affront has been cleansed (whakanoa) or the tapu lifted."

• This affront had already occurred through the insertion of the copy human gene in the laboratory, without Ngäti Wairere’s knowledge or consent. It made no difference that the gene coding for human protein was a copy, or that the original genetic information was derived from a non-Mäori.

The application would affect and the environment and health of the hapü, in breach of s4 (protection of environment and health of people by managing adverse effects of new organisms). It would affect spiritual values – breaching s6(a).

Section 5(b), requiring the authority to "recognise and provide for…the maintenance and enhancement of the capacity of people and communities to provide for their own economic, social, and cultural wellbeing" was also relevant. There was a need to consider how the offence to spiritual values might lead to "stress-related illnesses." The precedent set by this decision might lead to repeated offences against Mäori cultural values, and the consequent depression and mate Mäori which would result would be an impact on the community. The High Court recognised that Mäori values should not be trampled upon -Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188.

The issues raised by the application required wider debate. There was an urgent need for the Authority to consult with ‘Mäori experts’ in the area of cultural and spiritual risks to Mäori, before any other application which presented such an affront to Mäori tikanga could be considered.

Commentary: this decision has been appealed to the High Court. The Mäori Advisory Committee have joined the proceedings. If the matter proceeds to a full hearing, the decision should not only prove of considerable importance to the debate about genetics, but also the weight which should be given to Mäori values in a plural society, and to provisions in statutes which mention the Treaty of Waitangi.

 

Parliament

Speech to NZ Psychological Society Conference 2000

Hon Tariana Turia, Associate Minister of Corrections, Health, Housing, Maori Affairs, Social Services & Employment. Waikato University, Hamilton. 29 August 2000. Speech Notes

… I wish to address with you today … the phenomenon of colonisation and some thoughts on what the implications may be for psychology.

I know Tariana Turia and "colonisation" always attracts attention. I seek not personal attention I just want us to consider our history as a country and consider how this history has affected the indigenous people, how this history has impacted on Mäori whänau, hapü and iwi.

I really do believe that mature, intelligent New Zealanders of all races are capable of the analysis of the trauma of one group of people suffering from the behaviour of another.

I can see the connections between "home invasions" which concern many of us, to the invasion of the "home lands" of indigenous people by a people from another land.

What I have difficulty in reconciling is how "home invasions" emits such outpourings of concern for the victims and an intense despising of the invaders while the invasion of the "home lands" of Mäori does not engender the same level of emotion and concern for the Mäori victims. I wonder why that is?

A double standard seems to be working here, you as psychologists I am confident will be able to identify and label the double standard.

…. With personal identity inextricably tied to whänau, hapü and iwi identity, indigenous people still have to counter the problems of the conspiracy of alienation, assimilation and deculturation launched against them well over a century ago.

I have been accused in Parliament in the past week of indulging in "sociological clap trap" when linking colonisation to family violence. I can now imagination (sic) … that I will be accused of indulging in "psychological clap trap".

…. The challenge I put to you is – Do you seriously believe that you, with the training that you get, are able to nurture the Mäori psyche, are you able to see in to the soul of the people and attend to the wounded spirit?

Do you consider for example the effects of the trauma of colonisation? I know that psychology has accepted the relevance of PTSD (Post Traumatic Stress Disorder).

I understand that much of the research done in this area has focussed on the trauma suffered by the Jewish survivors of the holocaust of World War Two. I also understand that the same has been done with Vietnam veterans.

What seems to not have received similar attention is the holocaust suffered by indigenous people including Mäori as a result of colonial contact and behaviour.

The Treaty of Waitangi Tribunal made such a reference in its Taranaki Report of 1996 and I recollect what appeared to be a "but our holocaust was worse than your holocaust" debate. A debate I must add, I do not wish to enter.

[The Associate Minister then referred to work of Professors James and Jane Ritchie, psychologist Eduardo Duran and Professor Mason Durie linking colonisation with violence and subsequent "intergenerational systemic abuse", which becomes "culturally endemic".]

A consequence of colonial oppression has been the internalisation by Mäori of the images the oppressor has of them. It is for that reason that I found the negative portrayal of Mäori whänau last week to be both spiritually and psychologically damaging.

I know the psychological consequences of the internalisation of negative images is for people to take for themselves the illusion of the oppressors power while they are in a situation of helplessness and despair, a despair leading to self hatred and for many, suicide.

The externalisation of the self-hatred on the other hand, is seen with the number of Mäori who are convicted of crimes of violence and the very high number of Mäori women and children who are victims of violence.

….The phenomenon of Post Colonial Traumatic Stress Disorder and its effects it appears are now culturally integrated in to the psyche and soul of Mäori. It never used to be there. Indeed as Professor Anne Salmond has found, children were indulged and records of early contact show that violence towards children was uncommon. More uncommon than it was in Europe at the same period. A golden age for Mäori children it would seem.

[The Associate Minister then referred to Dr Hirini Mead’s suggestion that compensation is required for the cumulative damage resulting from nineteenth century events.]

The acknowledgment of the holocaust suffered by many Mäori tribes during the Land Wars needs to be acknowledged. Only then will the healing for Mäori occur.

[She then referred to Treaty settlements which have resulted in the bones of ancestors being returned to their tribal areas, allowing healing to begin.]

For Mäori, indeed for all indigenous people the issue is the identification of the trauma, as Post Colonial Traumatic Stress Disorder in order to site the issue in its proper historical, political and economic context. This would also encourage considering the continuing oppressive effects of colonisation and the various forms it has taken as Native American academic Ward Churchill says, 'since predator came'. The signs and symptoms of Post Colonial Traumatic Stress Disorder (PCTSD) with Mäori, needs analysis and examination.

My challenge would be for the few Mäori psychologists amongst you, to lead the discourse on that analysis.

Following are some indicators of the results of post colonial trauma.

• Have a poor self image.

• Have a tendency to self belittle.

• Tribe deprived of land by government dishonesty and theft.

• Parents/grandparents beaten for speaking their mother tongue.

• Members unable to identify with tribe.

• Identity now based on where they live (urban) and not on genealogy and ancestry.

• Fearful of imprisonment unless cousins are also incarcerated.

• Subjected to personal, institutional and cultural racism

• Beat up spouse, children and siblings.

[The Associate Minister closed by asking if the training of psychologists addressed the nature of Mäori kai tiaki.]

Commentary: Waitangi Tribunal use of "holocaust":

"As to quantum, the gravamen of our report has been to say that the Taranaki claims are likely to be the largest in the country. The graphic muru of most of Taranaki and the raupatu without ending describe the holocaust of Taranaki history and the denigration of the founding peoples in a continuum from 1840 to the present." (Taranaki Report 1996 para 12.3.3)

"The old balance of power was about to shift dramatically with the advent of the gun. Hongi Hika returned from overseas. In 1821 some 2,000 well armed Ngapuhi warriors set off from the Bay of Islands. In the holocaust that followed, the Ngäti Paoa on Tamaki were routed and dreadful massacres took place. It appears that soon after the invaders challenged Waiheke-the island that for 60 years had thwarted their pretensions. The defenders at Waiheke were no match for the musket and soon fled down the Firth of Thames." (Waiheke Island Report 1987)

"Reports of an old man being dragged from the fire are wrong. He actually cast himself into the holocaust of his home. I remember vividly the wailing of the wahine and the confused shouts of the young. It could be clearly heard on the harbour." (John Broadbent, Auckland yachtsman, reporting on the burning of Orakei village and eviction of its inhabitants prior to the Queen’s visit in 1952. Orakei Report 1987)