September 2000 Contents

Other Courts and Tribunals

High Court—customary title to foreshore and seabed

High Court—Insolvency Act, Treaty of Waitangi

High Court—Crimes Act, expert evidence of racial characteristics

High Court—Caveat and Mäori land claim on railway lands

High Court—Waikato Tainui, control of 4 incorporated society

Parliament

Mäori Purposes Bill

Bay of Plenty Representation Bill

Pouakani Claims Settlement Bill

Other

Adoption law reform report

 

Other courts & tribunals

Re Attorney-General & Others and foreshore and seabed of the Marlborough Sounds

AP152/2000. High Court Wellington. 23 August 2000. Doogue J

This is a continuation of the application by certain Mäori groups to have the Maori Land Court (MLC) investigate the customary title to the seabed and foreshore in the Marlborough Sounds. The application had raised the important preliminary issue of whether historical circumstances, previous court decisions and legislation had extinguished any such title. The MLC made a preliminary ruling on those issues. The matter came before the Mäori Appellate Court. It tacitly supported a case stated to the High Court under s72 Te Ture Whenua Maori Act 1993 (see Mäori LR October 1998 p1).

In this proceeding, various parties applied to the High Court to have the case stated by the Mäori Appellate Court (MAC) transferred immediately to the Court of Appeal.

Held: the application should be refused because the Court of Appeal should not be used as a court of first instance except in exceptional circumstances, which did not exist here. In fact, there were very good reasons why the matter should not be removed to the Court of Appeal

• Much more was in dispute than the question of whether Re Ninety Mile Beach [1963] NZLR 461 was correctly decided. In fact that decision was not at the heart of the present litigation. By way of example, provisions of the Territorial Sea, Continguous Zone and Exclusive Zone Act 1976 and the Foreshore and Seabed Endowment Revesting Act 1991 were in issue. The Court of Appeal should not act as a court of first instance on those issues.

• There were substantial factual issues which were in dispute. It was questionable whether the MAC had jurisdiction to state a case in the absence of factual findings in respect of particular parcels of land. The MAC should not have agreed to state a case before the MLC had made factual findings on particular parcels of land – since that was the only jurisdiction which the MLC had under s131(1) (application to determine status of land).

• The case was stated on the basis of preliminary determinations of the MLC, which were made in the absence of some parties. And the preliminary determination did not address all the issues contained in the case stated.

• It was questionable whether the matter was suitable for a case stated at all.

• The situation was very different from the cases stated in NZMC v AG [1987] 1 NZLR 641 and Erebus [1981] 1 NZLR 614. There were no "features of exceptional urgency" about the case.

• The fact that Chief Judge Durie (as he was then), now a High Court judge, had been involved in procedural decisions about the case when it was before the MAC and he was Chief Judge of the MLC, did not prevent the High Court hearing a case stated. It was not uncommon for example for the High Court to reconsider a substantive decision of one of its members in subsequent proceedings.

• There were many preliminary issues in terms of the parties involved in the proceedings and other interim issues which the Court of Appeal should not consider at first instance.

"In summary, … the course adopted to date in respect of this matter and the course proposed in respect of it has all the hallmarks of procedural error. It is not the function of this Court to add to that." An appropriate course might be for a representative sample of cases to be determined by the Mäori Land Court. That would provide a set of findings of fact to inform a case stated, which was needed since the facts were not agreed between the parties.

The application was declined and the matter referred back to the Chief Judge of the Maori Land Court for him to consider the withdrawal of the case stated (s72(2/1993).

Commentary: In its 1998 decision the MAC gave an opinion that more factual evidence was needed before a case stated could proceed.

In this case the Court noted that an appointment had been made under s70(3)(b) TTWM Act 1993 of counsel to represent "Mäori not represented by the applicants and who may be affected" by the proceedings.

 

West v Martin and another

CA 45/00. Court of Appeal. 30 August 2000. Richardson P, Heron and Goddard JJ

The parties in this matter were the three children of William West, who died in January 1984, leaving a will. Probate was granted to one of the children, Lionel West, the appellant, as executor and trustee. Under the will, the residue of the estate was to be divided equally between the three children, including a piece of land of 4.1885 hectares in Raetihi, which is the subject of the appeal.

In July 1991, the High Court adjudicated Lionel West bankrupt. His beneficial interest in the Raetihi property therefore vested in the Official Assignee under s 42 of the Insolvency Act 1967, for division amongst his creditors. The Official Assignee obtained an independent valuation of his interest in the property with a view to disposing of it. The respondents negotiated with the Official Assignee to purchase the appellant’s share of the property and they reached agreement with the Official Assignee on 1 August 1994. In June 1994, however, the appellant was discharged from bankruptcy and he subsequently made an offer for his share of the property. But, by then, it had been sold to the respondents, who paid the purchase price of $8,000 on 10 March 1995.

In the High Court, Doogue J had given judgment for the respondents, in the absence of the appellant, who had failed to appear. On appeal, the appellant sought an annulment of the vesting order and a return of his one-third share of the property, in order to give effect to his father’s will. He contended, among other things, that both the hearing of the matter by the High Court in his absence, and its decision in favour of the respondents, breached fundamental rights protected by the Magna Carta. He also maintained, by reference to his whakapapa, that a proper application of the principles of the Treaty of Waitangi guaranteed him full, exclusive and undisturbed possession of his lands and estates, although the property in question was not ancestral land. It was contrary to the spirit and concept of the "partnership" between the Crown and Mäori, as envisaged in New Zealand Mäori Council v Attorney-General [1987] 1 NZLR 641 for the Official Assignee, as the agent of one partner, to sell the interest of another partner. The appellant invited the Court to apply the principles of the Magna Carta and the Treaty of Waitangi to the interpretation of s 42(3) of the Insolvency Act 1967, which protected property held by a bankrupt person in trust for another person. He argued that his interest in the land as a beneficiary did not pass to the Official Assignee and was protected.

Held: The appeal was dismissed. Neither the Magna Carta nor the Treaty of Waitangi could override the clearly expressed will of Parliament in the Insolvency Act or any other Act of Parliament.

Citing R v Knowles (Mäori LR Dec 1998/Jan 99, p 1) the Court held that whilst the general law can and sometimes does recognise the role of customary law, and in particular the customary rights of Mäori, the Insolvency Act does not allow for the application of customary law. The appellant had misconstrued the plain meaning of s 42(3) of the Insolvency Act 1967 and the context of the Act as a whole.

 

The Queen v Makoare

T990626, High Court Auckland. 31 August 2000. Paterson J.

This was a ruling of Paterson J on an application in criminal proceedings by the defendant’s solicitor to admit certain expert evidence intended to establish that the defendant, a Mäori, had a characteristic for the purposes of s 169 of the Crimes Act 1961. Section 169 provided a defence to murder, reducing it to manslaughter. The relevant part of s 169 stated:

"169. Provocation – (1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2) Anything done or said may be provocation if–

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide."

In this case, the proposed evidence was intended to show that the defendant had a characteristic of a "sub-cultural underestimation of the danger of beating people up and/or sticking them with knives that differs from that of an ordinary New Zealander". The proposed evidence did not refer to the Mäori race but the basis for establishing the expert’s experience to give his opinion evidence relied heavily on his experience with Mäori. The expert was a respected registered medical practitioner practising in the area of general and forensic psychiatry with more than 30 years’ experience in assessing young Mäori males.

Held: There was an implied suggestion that the defendant’s race was a characteristic. However, race cannot be a characteristic under s 169: R v McCarthy [1992] 2 NZLR 550.

While, if it had been admitted, the evidence might have had "some marginal relevance to the fact of whether provocation did in the case of Mr Makoare, deprive him of his power of self-control", the expert, despite his high standing, "did not have the necessary expertise to give opinion evidence on the sub-culture in which it was said Mr Makoare has existed". The application was therefore dismissed.

Commentary: Paterson J’s judgment contradicts what R v McCarthy actually stated:

"A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of s 169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self-control falls to be assessed on the assumption that the person has the same characteristics. The question under the paragraph is whether a person with the ordinary power of self-control would in the circumstances have retained self-control notwithstanding such characteristics." (p 558)

 

Gerrard Te Oi Otimi on behalf of Ngäti Mahuta Tribe v Attorney-General and The Registrar-General of Land Information

M987-IM00. High Court Auckland. 12 September 2000. Master Anne Gambrill

The Crown sought to sell a parcel of railway land (3.1888 hectares) which was part of a large block of railway land at Otahuhu. A transfer was executed and lodged for registration when Mr Otimi lodged a caveat against the block on behalf of Ngäti Mahuta. The estate or interest claimed was "Land used for railway purposes. Land is no longer used by New Zealand Rail as parts were sold to Tranzrail. The return and utilisation of unused areas to hapü as beneficiary by virtue of constructive trust that exist between the registered proprietor, Her Majesty the Queen, and the said caveator."

The railway land at Otahuhu had been obtained in a variety of ways, as part of the Fairburn agreement of 1836 with local Mäori over the Tamaki, by Crown proclamation, and by purchase from the Auckland Trotting Club. Part of the land was used for state housing and was to be transferred to the Manukau City Council. All the railway land was affected by the caveat. The Crown was faced with possible liability for late settlement of sales which had become unconditional.

The Crown provided evidence that it had taken all the required steps when land no longer required for the purpose for which it was acquired (s23 NZ Railways Corporation Restructuring Act 1990 applied to the land). There was no Mäori land acquired for railway purposes in the area and Crown records indicated that none of the land was subject to any protection mechanisms set up to deal with Mäori land claims. The land was part of a general settlement of railway lands in Auckland which had been recommended by the Waitangi Tribunal.

Ngäti Mahuta claimed to be related to Fairburn’s common law Mäori wife. However, in the law of the last century, any children from such a union would have taken their land interest from their father, who was a European. Women’s property was not recognised in 1836 when Fairburn bought the land. His wife would have had no legal right to dispose of property to the children. Any entitlement for Ngäti Mahuta through Fairburn would therefore be to European land subject to the Torrens system. Ngäti Mahuta was not claiming the land as pre-Treaty owners who had been signatories to the agreement with Fairburn.

Mr Otimi produced documents about land banking arrangements for other lands in the vicinity, and indicated that the wrong people had been involved in the settlement of railway lands to date. He sought the land for the use of a body known as the Mäori Industry Standards Qualification Authority.

The Crown argued that there was no caveatable interest in the land, there was no constructive trust between the Crown and Mr Otimi or Ngäti Mahuta, any previous native ownership had been extinguished by previous owners (the Crown had not acquired the land directly from any Mäori owner), and there was no legal principle which would support the revival of native ownership. The Mäori Industry Standards Qualification Authority had no interest in the caveat (representing neither Mr Otimi nor Ngäti Mahuta). Finally, the Crown had done everything required by NZ Railways Corporation Restructuring Act 1990.

The court agreed with the Crown submissions. There was no evidence to found a claim by Ngäti Mahuta to the land. The caveat did not refer to specific land but applied generally to a large area of railway lands held by the Crown. A caveat might be more understandable if representatives of those who signed the agreement with Fairburn in 1836 were making a claim. But those people had accepted the Waitangi Tribunal proposal for the settlement of the claims.

The court was also concerned that Mr Otimi had lodged the caveat without legal advice, and that he had not been aware of his personal liability for costs and damages if no right in the land to support the caveat was found.

The caveator was Mr Otimi solely. In seeking to clog or fetter the interests in land of another he was required to justify the continued existence of his caveat by showing that he had a reasonably arguable case for the interest he claimed (Sims v Lowe [1988] 1 NZLR 656). And caveats must accurately describe the area which they seek to cover (NZ Mortgage Guarantee Co Ltd v Pye [1979] 2 NZLR 188). Neither had occurred in this case, and the Crown had properly taken all steps required of it under legislation. Accordingly the caveat lapsed.

The leave of the court would be required before a further caveat could be lodged - something which Mr Otimi was now seeking to do. The court was not willing to give any such leave. Costs would not be awarded against Mr Otimi for the time being, in light of his lack of knowledge about the process. But that would be reviewed depending on any further applications which he might seek to make.

 

Kingi Michael Porima & ors v Te Kauhanganui O Waikato Inc, Te Arikinui Dame Te Atairangikähu, Sir Robert Te Kotahi Mahuta

M208/00. High Court Hamilton. 22 September 2000. Hammond J

Following the signing of the Deed of Settlement with the Crown in 1995 Tainui people agreed by hui and postal ballot to implement the settlement by establishing a body called Te Kauhanganui O Waikato (Te Kauhanganui). This was an incorporated society under the Incorporated Societies Act 1908 and was a representative body of 61 marae to benefit from the settlement.

The objects of the society were to "protect, advance, develop and unify the interests of Waikato", to uphold and support the Kï ngitanga "which incorporates the principles of unity, the retention of the tribal base in collective ownership and co-operation amongst peoples", to foster among members of Waikato the principles of "whakaiti, rangimaarie and kia tuupato", to achieve settlements of several outstanding claims, and to do all other necessary things to attain the objects of the society, including holding all the shares in trust companies of the tribe. This trust company, Waikato Trustee Company Ltd, was the successor to the former Tainui Mäori Trust Board, and held all the land and other assets transferred to the tribe under the settlement (this transfer of authority and other aspects of the settlement were provided for in the Waikato Raupatu Claims Settlement Act 1995). The trust company in turn held all the shares in various companies undertaking commercial business for the tribe, including Tainui Group Holdings Ltd, MDC Investments Ltd, Tainui Development Ltd and Tainui Corporation Ltd.

The rules of the incorporated society provided that the 61 marae would each elect 3 people as representatives on Te Kauhanganui, giving it 183 people. These 183 then elected 11 people to an executive body, Te Kaumärua. The 12th member of the executive body was appointed by the head of Te Kahui Ariki – currently Dame Te Atairangikähu. She appointed Sir Robert Mahuta. The executive body was empowered by the rules to exercise generally all functions and powers of Te Kauhanganui.

Tainui experienced financial difficulties. Five members of the executive body resigned. The executive body voted that Sir Robert Mahuta should be stripped of directorships which he held in the companies associated with Tainui. Sir Robert thereafter refused to attend meetings of the executive body. Since 7 members were required for a quorum, this effectively brought tribal management to a standstill.

Dame Te Atairangikähu requested that a meeting of Te Kauhanganui be called. At that meeting, a resolution was passed to return all control of the society to herself and to appoint an administrative committee.

Some members of the executive body brought proceedings on the basis that the resolution purported to take away responsibilities which they had and which they had to perform until they were removed in terms of the rules.

Sir Robert argued that:

• The executive body had exceeded its historical role by becoming heavily involved in corporate matters

• The commercial advice offered to Tainui had been deficient

• Legal proceedings against Dame Te Atairangikähu were an unforgivable attack on her mana and diminished Tainui as a whole. This was a point made in many affidavits filed with the court.

Overall, the tribe was confronting an "emergency" situation and the traditional forces of authority should take over to restore the affairs of the tribe. He contended that "Waikato Tainui place their trust in Te Arikinui to use tribal Tikanga to find customary resolutions in situations that may divide groups within the tribe. This is the nature of her status within the tribe."

He felt that he could not attend meetings of the executive body while the proceedings continued, since he was Te Arikinui’s appointee

The court had granted an interim order preventing Te Arikinui from putting the resolution of Te Kauhanganui into effect by appointing people to replace the current executive.

After further urgent court proceedings, all parties agreed that there would be a general hui at Turangawaewae marae. This would be followed by a meeting of Te Kauhanganui at Hopuhopu. The latter meeting would consider resolutions to:

• Remove all remaining members of the executive body, except Sir Robert

• Fill the vacancies in the executive body.

The members of Te Kauhanganui would also during the meeting make a declaration of their allegiance to Te Arikinui.

Initially, Sir Robert had sought a meeting of Te Kauhanganui at Turangawaewae, which would vote on resolutions to remove the members of the executive body, resolve that all affairs should revert to Te Ariki and that she should establish a committee to do so, then fill the vacancies on the executive body.

The agreement to hold two separate meetings hinged on the symbolic and psychological importance of Turangawaewae, the traditional meeting place of the tribe, versus Hopuhopu, the usual and traditional meeting place of Te Kauhanganui.

On the appointed day however, Te Arikinui appeared at the hui at Turangawaewae and told the meeting that the regional basis of Te Kauhanganui should be replaced, that the executive body should be renamed, and she named 10 people to replace the executive body. She indicated that she had not spoken to these people about their nomination. Sir Robert was one of the ten.

The meeting then voted by an overwhelming majority to remove the members of the executive body except Sir Robert, and to appoint the ten persons named by Te Arikinui. About 2/3 of Te Kauhanganui were present. It was then announced that the position adopted by Te Kauhanganui should be conveyed to the meeting at Hopuhopu. Attempts were subsequently made to begin the meeting at Hopuhopu, but it was eventually aborted.

The plaintiffs then filed the current proceedings seeking interim relief on the basis that the meetings had not occurred in accordance with the court orders. They argued that there appeared to have been a pre-conceived intention to depart from the orders so as to achieve pre-determined outcomes.

Counsel for Sir Robert and Te Arikinui argued that there were sufficient members of Te Kauhanganui present to vote for the resolutions as they had, Te Arikinui was entitled to assert strong leadership in the circumstances, Te Kauhanganui was entitled to determine itself where it wanted to hold the meeting, and no different result would be achieved anyway if the meetings were held all over again. Counsel sought a declaration that the plaintiffs had breached their obligations to uphold and support the Kï ngitanga.

Held: the plaintiff members of the executive body should be given interim relief. Te Kauhanganui had registered as an incorporated society and had thereby become a legal entity itself, legally quite separate from its members, and the rules of the society formed a legal contract between the society and its members (Finnigan v NZ Rugby Football Union [1985] 2 NZLR 159, 177). Members of the society are therefore entitled to see that their contract with the society - ie the rules - is respected (Turner v Pickering [1976] 1 NZLR 129, Blackler v NZ Rugby Football League Inc [1968] NZLR 547).

The Incorporated Societies Act is sorely in need of revision and is "open to abuse by small cliques of individuals who seize the reins of power". There is no oppression remedy. Courts have historically been reluctant to intervene in societies, but has done so in cases where constitutional matters are in issue, or in dismissals which are disciplinary matters.

In addition, the courts have an inherent jurisdiction to act to preserve assets, or to resolve deadlocked situations. If a society’s assets are not being properly managed, a receiver may be appointed as an interim matter (Te Runanganui O Ngäti Kahunga Inc v Scott [1995] 1 NZLR 250).

Where there is an error of law through breach of the rules of a society, the court can intervene (Dawkins v Antrobus (1810) 17 ChD 615, Peters v Collinge [1993] 2 NZLR 554).

The application by counsel for Mahuta and Te Arikinui for a declaration that the plaintiffs had failed to uphold Kï ngitanga was refused both because it was not an interim remedy - which is what this proceeding was concerned with - and much more information would be required before "such an unusual declaration" could be properly considered.

The plaintiffs were however entitled to interim relief because they faced an immediate loss of their positions on the executive body. The relief would necessarily be interim, since they could be voted out by a properly constituted special general meeting.

In normal circumstances, the change of venue for a meeting would not be a cause for concern. But there had been considerable concern about the venue in this case. The plaintiffs not unreasonably considered that a meeting at Turangawaewae would be "a hugely constrained one, rather than the free and fair vote which should obtain in a voluntary association". In addition, the seat of Te Kauhanganui had traditionally been Hopuhopu. There was also an argument whether the necessary quorum was present to consider the resolutions put.

Considering the balance of convenience and the overall justice of the case, Te Arikinui was entitled to take a strong stand on the issues at the meeting and to say who she wanted on the executive body. But in the context of a registered society, with a system for electing the executive, she was not entitled to blind obedience. There could be no question of her having a "divine right". The elected members of Te Kauhanganui had an independent fiduciary role.

The facts indicated that meeting at Turangawaewae could not fairly be described as operating in a manner contemplated by the electoral college system.

The incorporation of Te Kauhanganui brought about a "sea change" in the affairs of Tainui because it enfranchised 40,000 beneficiaries. Tainui foresaw this position when it adopted the legal structure which it did. The new structure did not diminish Kï ngitanga. The spiritual role and leadership role continued for both Mäori and Päkehä. Tainui wrote and incorporated their own unique and modernised system of governance in relation to the settlement and Te Kauhanganui also had to be respected.

The plaintiffs had a legitimate expectation that the meetings would be conducted under the conditions as agreed. They were prepared to take the chance of being voted out, but only under those conditions, otherwise they would have continued with the court hearing rather than agreeing to that course. It would be a "blot on the administration of civil justice in this country" if parties could go back on such an agreement.

There were also pragmatic considerations:

• It was not clear that the persons nominated by Te Arikinui had actually agreed to join the executive body;

• The current members had experience of the current problems and it would take time for the new members to come to grips with the administration.

Accordingly, the plaintiffs should remain in office until a special general meeting was held at Hopuhopu with 21 days advance notice to consider their future.

The court was not prepared to make an order that Te Arikinui should not attend any future such meeting. Nor would the court supervise such a meeting.

Until a meeting was held, the 6 remaining members of the executive body could act for the incorporated society without the presence of Sir Robert if need be. It would be inappropriate for Tainui to be without representation at this time. The courts have inherent jurisdiction to act in this way (R v Moke & Lawrence [1996] 1 NZLR 263 and Te Runanganui O Ngäti Kahunga Inc). The remaining members were in a trust-like or fiduciary position in relation to the society.

"Tainui … need to appreciate that there is a distinction between Maaori protocol, and the general law of New Zealand. Maaori protocol is to be deeply respected, and has contributed greatly to the understanding of all New Zealanders as to the conduct of human affairs. But in this instance, Te Kauhanganui is incorporated under the general law of New Zealand, and it has itself accommodated the Maaori values written into that registered society. Te Kauhanganui is to be respected, and cannot be over-ridden by the perceived exigencies of a given instance.

…. Kiingitanga is undoubtedly, to Tainui, the greatest Taonga handed down to them from the past. But Te Kauhanganui is a Taonga of the future. Tainui, with all its courage and resilience, did what many said could not be done by Maaori; it set up a system of modern self-governance to deal with the interests of its own treat beneficiaries. It comes as no surprise … that there should have been teething troubles. But they should be seen as no more than that. After all, Europeans have had Parliaments for centuries, and the course of those institutions has been far from smooth."

Commentary: in a separate judgment issued on the same day (Mahuta v Porima (M238/00 22 September 2000 High Court Hamilton Hammond J), the High Court dismissed an application to prevent the directors of the Waikato Raupatu Trustee Company Ltd from finalising a sale of the Auckland Warriors Rugby League Club Ltd. The court held that Sir Robert Mahuta had no standing to bring the action since he was a not a relevant director or shareholder and had no relevant interest other than as a member of Tainui. In addition, the directors had made a lawful decision in good faith to sell the club, and Tainui had no further ready funds to invest in the Warriors in any event - "... why should the Tainui beneficiaries continue to bleed money for this sporting franchise, in the face of unknown losses?" The decision allowed the club to be sold for $400,000. It had cost Tainui $6.277 million, and further losses were projected. In deciding to sell, Tainui turned down an alternative offer which would have seen them retain a 25% shareholding in the club and obtain $1 million through a share float, while the new operation would use "best endeavours" to recover the $6.277 million invested to date.

 

Parliament

Mäori Purposes Bill

No. 306-2. As reported from the Mäori Affairs Committee

This bill was introduced in June 1999, but was overtaken by the election (see Mäori LR August 1999 p5). Significant changes proposed by the committee from the bill as introduced are:

• The proposed amendment to s30/1993 (appointment of representatives for Mäori) is altered so that there is no general ability to review representatives who have been appointed, but only power to add representatives, or replace those who have died or resigned.

• The original bill sought to alter the requirement for a Mäori land trust to get approval of a substantial number of owners before any sales of land, so that the requirement was limited to Mäori freehold land. It pointed out to the committee that s228(3) (all alienations require confirmation by the Court) appeared to conflict with s247(7) (alienations of investment land do not require confirmation). The committee proposed further amendments which would require confirmation for alienations of investment land, but only where it was Mäori freehold land (or land whose status had been changed by declaration under the Mäori Affairs Amendment Act 1967).

• The original bill proposed giving power to the Mäori Land Court to make orders for compensation when it aggregated land holdings. The committee proposed further amendments giving the land court the ability to balance competing equities in such situations.

• The committee noted further changes which have been proposed by way of supplementary order paper which would clarify provisions relating to Mäori reservations under s338/1993. This includes a new s338A specifically setting out 6 particular areas over which regulations may be made under s338(15), and the repeal of reg 3(d) Mäori Reservations Regulations 1994, dealing with the vacation of office by trustees.

Commentary: this last amendment to Mäori reservations suggests that there has been concern that the Mäori Reservations Regulations 1994 might be challenged because currently s338 gives only a very general power to make regulations. There also appears to have been a concern that where trustees (who are all appointed by the Mäori Land Court), vacated office they might attempt to apply for reinstatement or compensation.

 

Bay of Plenty Regional Council (Mäori Constituency Empowering) Bill

49-1. Mita Ririnui

This bill provides for the creation of a Mäori constituency which could vote for councillors to the regional council.

Those eligible to vote in the Mäori constituency would be all persons in the region enrolled on the Mäori electoral roll for Parliamentary elections.

The number of Mäori electoral districts within the region and thus the number of councillors who could be voted for from the Mäori constituency would be determined by working out the proportion of Mäori voters to non Mäori voters in the region on the Parliamentary electoral rolls and applying that proportion to the number of members on the regional council.

The boundaries of each Mäori electoral district would be determined having regard to the need for an even population spread, the boundaries of existing Mäori electoral districts, and "communities of interest and tribal affinities".

 

Pouakani Claims Settlement Bill 2000

Hon Margaret Wilson. 61-1

Owners in two Mäori land trusts (Titiraupenga and Pouakani B9B) brought a claim before the Waitangi Tribunal concerning the Pouakani and Maraeroa blocks northwest of Lake Taupo in the central North Island. Their main concern was the impact of Native Land Court in the nineteenth century on the 100,000 acre Pouakani block.

A tribunal report in 1993 found in favour of the claimants on a number of points. The claimants subsequently took an issue about the boundary between the Pouakani and Maraeroa blocks to the Mäori Land Court and in 1996 obtained a ruling that the boundary had been wrongly drawn, prejudicing the predecessors of the current beneficial owners of the Pouakani block (See Mäori LR February 1997 p1). They entered into a deed of settlement with the Crown in November 1999.

Broadly, the deed of settlement provides for:

• Cash payment of $2.65 million

• The right to purchase the Crown-owned exotic Pouakani Forest which is part of the Pureora Forest

• Adjustment of the boundary of the Pouakani block

• Gifting of a Landcorp farm to the claimants which approximates to the area lost in the boundary dispute.

• Arrangements for the joint management of Titiraupenga mountain, which is currently jointly owned by the trusts and the Department of Conservation

• Gifting of approximately 250 acres of conservation land, currently farmed by Pouakani under an informal agreement with the Department of Conservation

• Removal of the jurisdiction of the Waitangi Tribunal to consider the matters settled by the Act.

The bill:

• Includes an apology in Mäori and English which refers to prejudice suffered by the Pouakani people because of the way in which the Native Land Laws were applied in their rohe, including "the manner in which the title to their lands was defined, rearranged and purchased".

• Defines the Pouakani historical claims and Pouakani boundary claims and provides that the settlement of them under the deed of settlement and the bill is final. No court or the Waitangi Tribunal may consider the claims. However, the claims do not include any claims by Pouakani claimants to the Waikato river. And the courts and the Waitangi tribunal retain jurisdiction to consider the implementation of the deed of settlement and the settlement legislation itself.

• Provides that legislation allowing for the resumption of any state enterprise, railways and education land on a recommendation of the Waitangi Tribunal shall cease to operate over the Pouakani block and adjoining land, and land titles will be altered accordingly.

• Provides that if the "Pouakani governance entity" established under the deed of settlement chooses not to exercise a first right of purchase over the Pouakani forest, the Crown will be free to dispose of the forest.

• Provides that the settlement is for the benefit of the Pouakani people and not any individual, or any particular whänau, marae or hapü.

• Gives the Crown the power to transfer any settlement properties and forestry assets, including the Pouakani Forest.

• Provides for the registration of the covenant to complete survey work made in the deed of settlement by the Crown.

• Provides that if the Pouakani governance entity becomes the owner of the Pouakani Forest, it shall be manager of a marginal strip for the forest land under Conservation Act 24H(6).

• Confirms that the western boundary of the Pouakani block is the boundary found by the Mäori Land Court in 1996.

• Vests in the Pouakani governance entity certain Conservation Department land as "stewardship land" and as Mäori freehold land.

Part 6 deals with "cultural redress". It:

• Identifies the Titiraupenga mountain area.

• Sets out a statement of joint aspirations of the Crown and the Pouakani people for Titiraupenga, which states that both regard it as a taonga to be preserved in its natural state as far as possible. The statement of joint aspirations does not affect the exercise of any statutory power, duty or function of any person.

• Sets out a statement of the traditional associations of Pouakani people with the Crown-owned area of Titiraupenga, which the Crown acknowledges.

• Provides that the purpose of that statutory acknowledgment is to require consent authorities to forward summaries of resource consent applications to the Pouakani governance entity (after regulations are made to require this), require consent authorities, the Historic Places Trust and the Environment Court to "have regard" to the statutory acknowledgment, allow the Pouakani people to cite the statutory acknowledgment as evidence of their association with the Crown owned area of Titiraupenga.

• Provides that consent authorities, the Historic Places Trust and the Environment Court are to "have regard" to the statutory acknowledgment when undertaking certain statutory duties under the Resource Management Act 1991 and the Historic Places Act 1993 and that it shall be noted on all relevant regional and district plans made under the Resource Management Act 1991.

• Provides that the Minister of Conservation has authority to enter into a memorandum of understanding with the Pouakani governance entity over Titiraupenga, and that if the minister fails unreasonably to comply with the memorandum the Pouakani governance entity may enforce the memorandum by way of a public law action (although damages will not be a remedy).

Commentary: The Preamble begins with the sentence:

He koreo tähuhu. E mau ake nei te Rärangi Täpiri Tuatahi mö tëenei ture, e whakaupoko ana i roto i te reo Mäori me te reo Päkehä i ngä tikanga o Te Tiriti o Waitangi. There is no equivalent translation in English. The Treaty of Waitangi is set out in the First Schedule.

 

Adoption and Its Alternatives: A Different Approach and a New Framework

Report No 65 (NZLC R65). September 2000. Law Commission.

Following an earlier discussion paper on adoption law in New Zealand (see Mäori LR Dec 1999/Jan 2000, p 12), the Law Commission has now released a final report with recommendations for the reform of this area of law.

The Law Commission’s terms of reference required it to consider whether "recognition should be given to Mäori customary adoptions or any other culturally different adoption practices". The report provides a synopsis of how the practice of whangai or atawhai has operated within Mäori society and how the New Zealand legal system has variously recognised and not recognised the validity of such placements. Under the current law, Mäori customary adoptions are not recognised, except for the Mäori Land Court’s jurisdiction to determine whether a person is to be recognised as a whangai of a deceased landowner and to make provision for that whangai by way of succession orders.

Among its recommendations, the Law Commission has advocated for a new Care of Children Act that would replace the Adoption Act and the provisions of the Guardianship Act 1968 and the Children, Young Persons, and Their Families Act 1989 that relate to the placement of children. It has recommended that the new Act contain, as one its guiding principles, the statement that a placement of a child within the extended family, where practicable, is preferable to a placement with strangers. The paramountcy of the welfare and interests of the child, would also be a guiding principle of the Act.

In respect of cultural adoption practices, the Law Commission’s approach has been to make a number of general recommendations that can respond to a range of cultural adoption practices, rather than attempt to prescribe a particular approach to adoptions for each culture. It has recommended that:

• Where practicable, a child should be placed within a family of the same culture as the child. If that is not possible, the court should be satisfied that the prospective adopter(s) will help foster the child’s cultural, social, economic and linguistic heritage, and facilitate contact with that child’s family.

• When considering cross-cultural adoption applications, the court should call for a report on cultural matters to ascertain the suitability of the placement and how the prospective adopters intend to foster the child’s cultural heritage.

• The guiding principles of the Care of Children Act should require decision-makers to take into account the cultural heritage of the child in such a way as to ensure that the child has full access to the child’s cultural, social and economic heritage.

It has also recommended that a Mäori social worker should provide the social worker’s report on applications to adopt a Mäori child and that, where practicable, the Mäori social worker should have iwi affiliations with the child.

The report includes a summary of how indigenous adoption practices are recognised in a number of overseas jurisdictions.

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