October 2000 Contents

Mäori Land Court & Appellate Court

Two new Mäori Land Court Judges

Waitangi Tribunal

Frivolous and vexatious claims

Other Courts and Tribunals

High Court – when partition is allowed

High Court – use of a Mäori land trust as guarantor of a lease

Environment Court – approval for archaeological site

Environment Court – inter-iwi disagreement over extent of wahi tapu

Environment Court – approval for Mäori run oyster farm

Environment Court – former Mäori land affected by subdivision

Environment Court – strike out of Maori appeal

Parliament

Tutae-Ka-Wetoweto Forest Bill

Other

UN Permanent Forum on Indigenous Issues

 

Mäori Land Court & Appellate Court

Two new Mäori Land Court Judges

Hon Parekura Horomia Minister of Mäori Affairs. Media statement 10 October 2000

Carrie Wainwright and Caren Wickliffe have been appointed as judges of the Mäori Land Court.

Carrie Wainwright (LLM (Hons) Victoria University of Wellington), was admitted to the Bar in 1982 and has been a partner in Buddle Findlay for the past nine years.

Caren Wickliffe (LLB LLM(Hons) Victoria University of Wellington), is of Ngäti Porou and is a former Lecturer in Law at Victoria University and currently a Senior Lecturer in Law and Director of Graduate Studies at Waikato University. She worked in the Fiji Islands as a Commonwealth Fund for Technical Cooperation Fellow in Human Rights Education, June 1997-June 1999.

 

Waitangi Tribunal

Memoranda-Directions of the Waitangi Tribunal

W/CL 0/1 22 August 2000. Chief Judge Williams, J Morris, J Clarke. W/CL 0/1 18 September 2000. Chief Judge Williams, J Morris, J Clarke

The Treaty of Waitangi Act 1975 ("the Act") gives the Waitangi Tribunal a discretion not to inquire into a claim in certain circumstances. Section 7(1) states:

"(1) The Tribunal may in its discretion decide not to inquire into, or, as the case may require, not to inquire further into, any claim made under section 6 of this Act if in the opinion of the Tribunal -

(a) The subject-matter of the claim is trivial; or

(b) The claim is frivolous or vexatious or is not made in good faith; or

(c) There is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to the Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise."

The tribunal has recently dealt with two matters under this provision.

 

Tozer claim

Roger Tozer applied to register a claim concerning the payment of parking fines and car registration fees that he had incurred. The application stated that Mr Tozer was "adopted" as an adult into a Mäori family nearly twenty years ago. By this the tribunal inferred that Mr Tozer meant that he was adopted informally. However, Mr Tozer was not a Mäori, nor was he descended from a Mäori.

The tribunal held that a claim was frivolous and vexatious within the specific legal meaning of section 7(1)(b) of the Act "if, by its very nature, it failed to satisfy the statutory requirements and, as such, it is clear that the claim cannot be sustained". The requirements of section 6 of the Act (which section enables claims to be submitted to the tribunal) were clear and unambiguous in that only a Mäori was permitted to submit a claim. Section 2 of the Act defined "Mäori" to mean a person of the Mäori race of New Zealand, and included any descendant of such a person. The "fact that Mr Tozer may have been "adopted" as an adult, and might now consider himself to be part Mäori, does not in itself confer jurisdiction on the Tribunal" and accordingly the tribunal had no jurisdiction to inquire into the claim.

 

Guard Family claim

The tribunal received an application to register a claim from Rosalie Neame on behalf of the Guard Family relating to land and resources in the Cook Strait area. The applicant relied on the adoption by Mäori of her ancestor, Jack Guard, who was a European. The applicant herself had not been adopted by Mäori, and she could not demonstrate descent from a Mäori.

The tribunal considered that it had no jurisdiction to inquire into this claim. It was not appropriate for the applicant to be deemed a Mäori or a descendant of a Mäori, for the purposes of the Act. The tribunal used the discretion under s 7(1)/1975 "sparingly, and only in rare cases when it is clear that on its merits, the claim cannot or should not be allowed to proceed". The use of "frivolous and vexatious" in section 7 borrowed from the language of the High Court rules and the tribunal was guided by the principles stated by Tipping J in Marshall Futures v Marshall [1992] 1 NZLR 320, 323:

"The jurisdiction to strike out ... should be sparingly exercised and only in a clear case. It must be perfectly clear that the plaintiff cannot succeed as to the cause of action or causes of action in question. As it is sometimes put, the defendant must show that the plaintiff’s cause of action cannot by any possibility be maintained."

 

Other courts & tribunals

Brown v Mäori Appellate Court

CP428/98. High Court Wellington. 14 September 2000. Elias CJ, Salmon, Wild JJ

Background

This judgment concerns a very long running dispute about the partition of a block of Mäori freehold land consisting of 5.8 hectares on the coast at Kairakau, southern Hawkes Bay, a settlement of some 55 holiday homes and a camping ground.

During the 1970s Kapiti Farm Limited bought up 61.6% of the shares in the block from the Mäori owners, but ceased operations in the district in the 1980s. All shares in the company and the title to the land were sold. The buyers wanted to dispose of the block. They were opposed by the minority owners, around 10 people who owned the remaining 38.36% of the shares in the block. Several of them had minute interests. They were all gained by inheritance. The minority owners did not want to buy the land, nor did they want it to be partitioned.

There had been ongoing disagreements between the owners. The minority wished to place the land under a trust for use as a marae. Several of the minority owners had occupied the block to the exclusion of the majority. Rates fell into arrears. The minority owners had put forward proposals for a partition which would have given the majority an interest well below their 61.6 % shareholding. Both sides had occupied areas of the block, with the minority owners erecting several buildings on one part and the majority grazing some cattle on another part representing 54.3% of the value of the land (or $10,000 less than the value they would be entitled to receive on partition). An "informal, and uneasy, de facto partition" existed.

Previous court decisions

Kapiti Farms Ltd had first applied to the Mäori Land Court (MLC) for partition orders in 1989 and had their application dismissed. That decision was appealed and the Mäori Appellate Court (MAC) directed that the matter be reheard. At the rehearing in 1991, the MLC ordered the partition, with the applicants receiving only 54.3% of the value of their shares. However, a minority owner appealed and the MAC found that Kapiti Farm Ltd had been dissolved when the matter was reheard and lacked legal capacity to apply for that rehearing.

In 1994 the new majority owners applied for a partition. The MLC directed that a meeting of owners be held, and a resolution was passed that the partition should proceed. Twelve owners representing 80% of the shareholding voted in favour of partition, six against. The MLC ruled against partition however, on the basis that Te Ture Whenua Mäori Act 1993 (TTWM Act 1993) now applied and there was an insufficient degree of support for the application and that the rights of the non-hapü owners (the applicants who had come into the land by buying an interest in Kapiti Farm Ltd) must be subordinate to the rights and desires of hapü owners.

In 1996 that decision was appealed and overturned by the MAC and referred back to the MLC for rehearing. The MLC again refused the partition order. That second decision was appealed once again to the MAC, which, in December 1997 dismissed the appeal by a majority decision 4:1 (see Mäori LR Dec 1997/Jan 1998 p1).

The relevant provisions

Their Honours considered that Part XIV "Title Reconstruction and Improvement" of TTWM Act 1993 is not a code in itself but is an integral part of the scheme of the Act. It is to be construed and applied in the context of the 1993 Act as a whole including the Preamble, s2 and s17 which refer to the principle of promoting the retention, use and development of Mäori land in the hands of its owners , their whänau and hapü.

Part XIV is however concerned principally with rationalisations and arrangements to allow use and development, while the overall objective of retention of land as far as possible by Mäori owners and their descendants "is always to be promoted and facilitated, where it is relevant."

The purpose of Part XIV is to facilitate the use and occupation by the owners of land owned by Mäori by rationalising landholdings and providing access and to do this by way of partition, amalgamation or aggregation orders and by granting easements and laying out roadways (s286/1993). The orders available under Part XIV do not include orders for the sale of land, which are dealt with under Parts VII and VIII.

The requirement to give a first right of refusal to preferred classes of alienees before an alienation is an important safeguard. While the 1993 Act does not provide that preferred classes of alienees be notified of a change in status application, it has been suggested that they should be (Cleave and Orokawa 3B Tai Tokerau Registry Appeal 1995/5).

In this case, the intention to sell after partition could be effected either by application for an alienation order (in which case the preferred classes of alienees would have their first right of refusal), or by application for a change of status order to General land (in which case it is not clear whether the non-sellers would have an opportunity to be heard) and then a sale without further court order.

The MLC may not make an order partitioning land unless it is satisfied the owners have had sufficient notice and there is sufficient support among the owners (s288(2)/1993) and the partition is necessary to facilitate the effective operation, development and utilisation of the land (s288(4)/1993). If those requirements are met, then the court must consider the opinion of the owners or shareholders as a whole, the effect of the partition on the interests of the owners and the best overall use and development of the land (s 288(1)/1993). And then the court must consider the principal purpose of the 1993 Act (s287(2)/1993).

The statute requires "particular caution in the case of title reconstruction, especially by way of partition." The word "necessary" (in s288(4)/1993) means "reasonably necessary" (following Commissioner of Stamp Duties v International Packers Ltd [1954] NZLR 25, 54). The MLC is not required to conclude in an absolute sense that there is "no other way" (as suggested by Spencer J in the MAC). But the test is not a light one and necessity is a strong concept. What is reasonably necessary is closer to what is essential as opposed to what is simply desirable or expedient (Environmental Defence Society v Mangonui County [1989] 3 NZLR 257, 260).

The high threshold is appropriate since partition not only separates land. Nor is it simply about separating people (as suggested by CJ Durie in the MAC). Partition which excludes owners separates those owners and their descendants from the land. Consequently, in a statute which seeks to promote the retention of land as a taonga tuku iho for the owners it is understandable that Parliament should require that the MLC be satisfied that there is a sufficient degree of support and that the proposal is necessary. That the MLC should look at the further matters under s287/1993 and that it should retain a general discretion is also appropriate for that reason, particularly if the court is not satisfied that the principal purpose of Part XIV would be achieved if the order were made in the "manner sought."

The decisions of the MLC and MAC

In the latest decision of the MAC the majority upheld the view of the MLC that there was not sufficient support from the owners having regard to the nature and importance of the matter, and that the number of owners in opposition, rather than the number of shares they held, was important.

The MLC and majority of the MAC also found that the intention of the applicants to sell the land after partition was pivotal, since Part XIV assumes a continuing relationship with the land by owners and not a severance of that status. The majority of the MAC went so far as to find that the application to partition was "doomed" because of the intention to sell the land post-partition. The personal financial situation of the applicants (the need to sell to reduce indebtedness) was irrelevant.

Chief Judge Durie rejected that approach on the basis that Part XIV must anticipate severance and subsequent alienation in some circumstances; the degree of support from the opposing minority owners was not relevant in the case because they could hardly be expected to support the proposal; and the "competing equities" were more relevant than counting heads. He also considered that the key issue was whether the disagreements between the owners were so deep that partition would be the only effective way of utilising the land.

The correct approach

Chief Judge Durie was correct in his view that the majority were wrong to consider that applications for partition under Part XIV may never succeed if they are made in contemplation of a subsequent sale:

"The Act is not predicated on a continuing relationship between the owners and the land. If it were, a partition order could never be granted where the effect would be to exclude some of the owners from part of the land because their continuing relationship with that part of the land would be severed. Even where some owners are not excluded a partition to facilitate sale of part may promote the use and occupation of the balance of the land, perhaps by releasing needed capital. Where owners are at an impasse in the management and development of the land, partition may facilitate overall use and occupation even if some of the land partitioned out is later sold."

All the facts of each situation must be taken into account. The emphasis of the majority on the applicant’s stated intention to sell "distracted" the MLC and the majority of the MAC from a full weighing of the circumstances.

The matters to be considered were all those matters under s288/1993 and the policies and objectives of the 1993 Act expressed in the Preamble, and ss2 and 17, but including ss17(2)(c)-(f)/1993 which are concerned with facilitating the settlement of disputes, protecting majority and minority interests against unreasonable positions, ensuring fairness in dealings by the owners and promoting "practical solutions to problems arising in the use or management of any land".

There is no policy in the 1993 Act that requires the retention of land in the hands of non-Mäori owners. The approach to an application should not turn on whether the owners are Mäori or not. "Mäori owners too may wish to partition with a view to sale. And Mäori owners are not to be deprived of the safeguards provided by the Act because some of the owners are non-Mäori".

The MLC and majority of the MAC not only erred in considering that the intention to sell was fatal to the application, they also did not assess the question of a sufficient degree of support among the owners against the factual background, because they considered that the preference of the minority owners should be given more weight.

Consequently, the matter would be referred back to the MLC for further consideration.

Matters which had not been considered were:

• A dispute on the facts as to the significance of the land to the Mäori owners.

• The fact that the land was uneconomic as a farm and its only probable use was for houses or a marae, combined with the lack of agreement over whether the partition would facilitate the better use of the land and whether partition was necessary for the effective operation, development and utilisation of the land.

• The fact that since 1994 there had been a de facto partition leaving the two groups of owners in the parts they would retain after partition, and the fact that the Mäori owners had not paid their proportion of the rates. Those present arrangements needed to be assessed to see whether they were impeding the use and occupation of the land and made partition necessary. An assessment of the difficulties between the owners was required.

The desire of the applicants for partition to realise some value from their land was relevant but not determinative either way. The land court must determine, on the facts and circumstances as it finds them, including the significance of the land to the Mäori owners, whether the applicants insistence on partition and sale is a reasonable and acceptable stance. "The dispute between the owners as to use and occupation may not be intractable, save on the question of the applicants’ preference for partition and sale. Other solutions may be devised to facilitate occupation and use."

The MLC would also have to consider:

• Whether a partition order would achieve fairness between the owners and a practical outcome. In that assessment, some consideration of the history between the parties would be "inescapable".

• Whether a severance between Mäori and non-Mäori owners would allow better management of the share remaining to the Mäori owners. This would include whether the ability to develop communal facilities (eg marae) on the remaining land would be adversely affected if residential subdivision occurred on the area sold (a point noted by CJ Durie in the MAC decision).

• Given the circumstances, including the significance of the land to the Mäori owners, whether 62% was a sufficient level of support for partition, even if the Mäori owners would retain land equivalent to their equity in the block. In this respect, CJ Durie was wrong to find that where partition was proposed to sever the block, rather than re-organise it for better use, a lower degree of support would be acceptable. The policy of ss2 and 17/1993 might require more than a simple majority support either in terms of shareholding or numbers.

It was not however relevant to consider the fact that, if the land was sold after partition, the Mäori owners would have first right of refusal anyway (because they would fall within the preferred classes of alienees). The exercise of that right might be unrealistic, and if an application were made to first change the status of the land to General land that right would be lost, and it was not certain that the former owners would have to receive notice or could be heard on a change of status application. And there would be no purpose served under the 1993 Act in having land owned by non-Mäori remaining in Mäori freehold ownership.

Commentary: This saga may be nearing an end. But the fact that the decisions of the MLC and MAC have been overturned does not necessarily mean the application for partition will be approved on rehearing. The decision does reject the notion that an application for partition in contemplation of sale will never succeed, but otherwise makes it clear that sale will be quite difficult to achieve. The obiter comments suggest that some solution short of selling the land could be devised.

Overall, the history of this matter and this judgment are a considerable disincentive to anyone seeking partition for sale where they are faced by a hostile minority.

 

Attfield & Others v Chris Redding No 2 Trust

AP27/00. High Court Auckland. 24 August 2000. Heron J

In 1996 a Mäori land trust established under s438 Mäori Affairs Act 1953 (the "Puru Trust") gave a guarantee on a lease of commercial premises in Auckland. The lessee, a relative of one of the trustees, but not a beneficial owner, defaulted. The lessor sought and obtained, through the District Court, judgment for outstanding rent, interest and costs against the guarantors. The trust appealed to the High Court on the basis that the guarantee given was outside the terms of the order setting up the trust.

Held: the appeal should be upheld. The Mäori Land Court order establishing the trust provided that its object should be to provide for the use, management and alienation of the land and any property or assets of the trust to the best advantage of the beneficial owners, or the better habitation or use of the land by the beneficial owners, and to carry on businesses on or in connection with the land, which would directly or indirectly assist in better utilising the resource of the land and any other trust property. To further those objects, the trust could act as if it were absolute owner of the land, although it could not alienate the land other than by way of an exchange.

The trust was now an ahu whenua trust (by reason of s354 TTWM Act 1993) and was governed by the trust order, the 1993 Act, the Trustee Act 1956 and general trust law.

Trustees must only exercise their powers for the proper purposes of the trust (Balls v Strutt (1841) 1 Hare; 66 ER 984). A guarantee given by a trust must be authorised by it and relate to a legitimate purpose of the trust. A creditor who knows or ought to have known of any breach of trust in giving a guarantee is not able to enforce the guarantee against the trust.

The district court found that the trustees had a "broad discretionary power" and acted within that when they gave the guarantee. However, the fact that the trust order provided that the trustees might do "any of the things which they could be entitled to do if they were the absolute owners of the land" and had power to "enter into arrangements or agreements or contracts within the names of the trustees or jointly or in partnership with any other person or organisation" did not give the right to enter to the guarantee in this case, which was completely unrelated to the objects of the trust.

Section 22 Trustee Act 1956 provides that a person entering into a lease with a trust holding itself out as having a power to lease, with no knowledge of any fraud, is entitled to rely on that lease. However, in this case, while the guarantee given by the trust noted that the trust should be treated as if it were the tenant for the purposes of the guarantee, that was not the same as the trust itself entering into the lease, so that s22 did not apply. The trust was merely guaranteeing that the lessee would fulfil their covenants under the lease.

The general law of trusts and equity does not protect a person who acts knowing, or on notice, that a breach of trust has occurred (Re Introductions Ltd [1969] 1 All ER 887 CA). In this case the lessor clearly had knowledge that a trust was involved. His solicitors sought details of the trust and were sent a copy of the Mäori Land Court order vesting the land in the trust, which referred to s438 Mäori Affairs Act 1953. On reading that section, the lessor’s solicitors should have been aware that a separate trust order must exist which set out the objects and limits of the trust. Had they read the trust order, they would have been aware that the guarantee given was outside the terms of the trust. In addition, the lessor was well aware that a trust was involved which was a distinct entity from the lessee.

A person is deemed to have constructive notice of all matters of which they could have known if they had made inquiries of the sort normally made in similar transactions. They are also deemed to have constructive notice of any relevant facts which have come to their attention and which a reasonable person would have inquired further into (Bailey v Barnes [1984] 1 Ch 25, 35; Agrabank v Barry (1874) LR 7 HL 135, 157; Abigail v Lappen (1934) 51 CLR 58, (1934) AC 491, pp505-6).

The facts in this case indicated that there was actual, imputed and constructive notice. Actual notice existed once the order vesting the land in trustees and naming the trustees was received by the lessor.

"It must have been plain that what the trust was doing by entering into the guarantee bore no relation to its own land. It was … an external and unrelated transaction on the face of it calling for further inquiry as to why the trust land might be put in jeopardy, in respect of a transaction which was not even for the benefit of a land holder, or beneficiary. It would have at least, … called for some assurance as to the connection between the transaction in hand, and the object of the trust to which all powers were subservient."

Consequently, the guarantee was ultra vires the powers of the trust, and the lessor had actual notice of facts which were sufficient to put him on inquiry, and failed to make inquiries. A prudent landlord would have enquired further.

The court rejected a further ground of appeal, that the guarantee was not properly executed as one of the trustee signatures was not witnessed. However, the other signatures were valid, and they constituted a majority of the trustees.

Commentary: The Mäori land trust order involved is a standard one and the point is relatively straightforward. Mäori land trusts cannot act as guarantors for matters which do not reflect back on the activities of the trust and its duty to act in the best interest of the beneficiaries.

 

Mokau Ki Runga RMC v Historic Places Trust & Transit NZ

W032/00. Environment Court. 15 June 2000. Kenderdine J

During a realignment of State Highway 3 in northern Taranaki, Transit NZ uncovered an archaeological site containing blackened soil and hängi stones. The Historic Places Trust granted authority to modify, damage or destroy the archaeological site for the road realignment, subject to conditions. The area was considered to remain an archaeological site even though kaumätua had removed the hängi stones and blessed the area.

The Environment Court received papers purporting to lodge an appeal under s20 Historic Places Trust Act 1993 as a person "directly affected" by the decision (it was contended that the area was close to pa sites important to Ngäti Maniapoto, and that it was they, rather than Ngäti Tama, who should have been consulted first about the site). The appeal purported to be from Mokau Ki Runga RMC, one of six Regional Mäori Committees (RMC) with delegated authority from the Maniapoto Mäori Trust Board (established by the Maniapoto Mäori Trust Board Act 1988). The Mokau Ki Runga RMC was comprised of four marae. It was clear however that the appellants belonged to only one of the marae. Further, the RMC advised the court that it did not support the appeal. Transit sought to have the appeal struck out.

Held: the appeal was invalid from the outset. The purported appellants were from only one of the 4 marae which made up the Mokau Ki Runga RMC. In addition, while the RMC was unincorporated, the Maniapoto Mäori Trust Board Act 1988 provided for the establishment of regional entities and there was a clear intention that regional committees should be legal entities separate from their members. Since the Mokau committee had advised that it had withdrawn from the appeal there was no appeal by that committee.

 

Heta & Others & Te Toka Tu Moana O Irakewa v Bay of Plenty Regional Council

A093/00. Environment Court. 1 August 2000. Whiting J, JR Dart, RF Gapes

The Whakatäne District Council sought coastal permits, discharge permits and land use consents from the Bay of Plenty Regional Council to dredge Whakatäne Harbour and its entrance and to dispose of the sediment on land at the harbour heads. The disposal area was near to an urupä, comprising some 56 acres which was reserved as a Native Burial Reserve for the Whakatäne Ngäti Awa and the Pukeko iwi in 1878 and was known as Opihi Whanaunga Kore.

A witness for Te Runanga o Ngäti Awa gave evidence that while the whole of the burial reserve was regarded as wähi tapu, only some 4 acres were actually urupä, and that was at some distance from the disposal area. Ngäti Awa had in fact applied for consents to subdivide and develop land in the area. The court however heard contrary evidence from several Mäori witnesses that the general area was wähi tapu. The court found that, on balance, it preferred the specific evidence of kaumätua, backed up by an archaeological report, to the more vague and unspecific evidence of the appellants. The court commented:

"We consider it most unfortunate that the iwi were unable to determine as between themselves the status of Opihi Whanaunga Kore. The appropriate place to determine the status of such land is the marae. This Court is a statutory-constituted court of law. It is not a court of ‘lore’. We must make decisions based on the facts placed before us and we are required to have regard to the well-known principle that he who asserts must prove. Furthermore, the concepts of tikanga Mäori and the relationship of Mäori and their cultural traditions with their ancestral lands is better discussed at a hui on a marae, without evidentiary and other legal constraints. It is in such a setting that the subtle nuances of such concepts can better be aired and determined."

The court also rejected claims that there had been inadequate consultation.

 

Ngäti Kahu Ki Whangaroa Co-Operative Society Limited & Others v Northland Regional Council and Others

A95/2000. Environment Court. 4 August 2000. Sheppard J, P A Catchpole, F Easdale

This was an appeal against a decision by the Northland Regional Council granting a coastal permit for structures to farm Pacific oysters on an 8-hectare site in the Whangaroa Harbour.

The applicant was Mr Hemi, a local Mäori and tangata whenua, and a family company, Muri-Tai Tio Limited. The appellants were people and societies associated with the Waitaruke area who claimed that the site for the proposed oyster farm was in a part of the harbour which had traditional and historical links with the community and was used by them for fishing and recreation. They were supported in their appeal by the Director-General of Conservation, in his role as advocate for the conservation of natural and historic resources generally (s6(b) Conservation Act 1987).

The farm was to be similar in size to five other oyster farms occupying 19 hectares in total in three other bays of the harbour and would involve the erection of post-and-rail structures to support racks on which the oysters would grow. The activity was a discretionary one under the regional coastal plan.

The appellants argued that:

• The site was used for recreational and commercial fishing and was a traditional kaimoana fishing area.

• The proposal would have a cumulative effect as there are a large number of oyster farms in the area, and that the cumulative impact of this and other farms had not been studied.

• There were sufficient undeveloped oyster farms in the harbour which should be utilised before new farms were created and the sustainability of existing farms might be affected.

Held: on a prior question of jurisdiction, the activity of marine farming is controlled under the Fisheries Act 1996, not under the Resource Management Act. However, the erection of structures in the coastal marine area for marine farming is controlled under the Resource Management Act, as well as the occupation of land in the coastal marine area. That is why the application was for a consent to erect structures, not to carry out marine farming itself.

Consequently, the court could not consider issues relating to access to fisheries generally, the cumulative effect on other oyster farms and the sustainability of fisheries of the harbour as a whole.

The court assessed the relevant regional plans and the NZ Coastal Policy Statement and considered evidence about the effects of the proposal on the natural character and appearance of the harbour, harbour hydraulics, water quality, wildlife, navigation and recreation and found no significant effects.

In relation to Mäori cultural effects, the runanga which represented the hapü and iwi of 17 marae in the Whangaroa area did not object to the proposal. However, people from the marae located nearest to the proposal objected on the basis that oyster farming was causing increased siltation and flooding, and might hinder access to traditional fisheries resources. The court did not consider that the oyster farms were causing siltation, and there was no specific evidence of how access would be affected. Consequently, the court found that there were no actual or potential effects on Mäori cultural values of allowing the proposed oyster farm structures, and noted that there was no claim that the proposal would hinder the exercise of kaitiakitanga.

With regard to consultation, the applicant was tangata whenua, he had consulted with some individuals from the affected marae, and more widely, and believed that he had the support of the great majority of Mäori of the area. The court agreed that where the exercise of a resource consent may affect particular cultural or spiritual interests of the tangata whenua, conformity with the principles of the Treaty of Waitangi calls for an applicant to consult with the tangata whenua about the proposal. Tangata whenua are not obliged to form a common attitude to a proposal and individuals may express opposition. Nevertheless, the fact that the applicant was tangata whenua himself, and that the chair of the local runanga, a kaumätua himself, had assisted in the consultation, was relevant. There had been no failure to adequately consult.

It was also argued that the proposal would have positive social and economic effects in that it would create employment for local people in Whangaroa in food production, and that local Mäori were likely to be involved. Jobs were scarce in the region. The court found this positive effect to be likely on the assumption that the business was successful.

 

Kupa v Hastings District Council

W067/00. Environment Court. 10 October 2000. Kenderdine J.

Mr Kupa was the sole owner of a 5.6 hectare block of land. The district council refused consent to subdivide it into two lots, to allow him to sell one lot and retain the other as a lifestyle block. He appealed on the basis that the land was General land held by Mäori and was not affected by the rules concerning subdivision because of the operation of s11(2) Resource Management Act 1991 (RMA 1991) which provides that the restrictions on subdivision in the RMA 1991 do not apply to Mäori land within the meaning of Te Ture Whenua Mäori Act 1993 (TTWM Act 1993) unless that Act otherwise provides. The district council applied to strike out the appeal on the basis that s11(2)/1993 did not apply, because "Mäori land" means Mäori customary land and Mäori freehold land only (s4/1993) and that, in any event, s301 TTWM Act 1993 requires subdivision consents for every partition of Mäori land - except for a partition into parcels to be held by owners who are members of the same hapü – which was not the case here.

Mr Kupa maintained that the exception for Mäori land in s11(2)/1993 was intended to cover former Mäori land which had been owned by four or less owners and whose status had been changed to General land by the Registrar of the Mäori Land Court under Part I of the Mäori Affairs Amendment Act 1967, without notice to the owners. The status of the land was changed in that way in 1969.

Held: s129 TTWM Act 1993 made it clear that the land was General land. The fact that the status of the land was changed without notice under the Mäori Affairs Amendment Act 1967 was not relevant.

 

Taueki v Horowhenua District Council and Wellington Masonic Village Trust

W071/00. Environment Court. 13 October 2000. Kenderdine J

Ms Tuaeki appealed against a consent granted by the district council to Wellington Masonic Village Trust in Levin to further develop their village. The appeal was on the grounds that insufficient provision was made for

consultation with tangata whenua to enable effective participation and informed decision making relating to the proposal, that there was no recognition of Muaupoko tikanga in the decision making process and that the responsibilities of Muaupoko as kaitiaki had been ignored and seriously threatened. She also alleged that the district council had been told that provision needed to be made to enable Muaupoko to fully assess the proposal and identify values and potential impacts upon those values.

Ms Taueki was not an owner or occupier of land adjoining the development. The council had included a condition in the consent which provided that:

"In the event of disturbance to the land causing any sites of significance to Mäori to be revealed, the development shall cease to enable appropriate consultation and protocols with the Tangata Whenua to take place."

The council applied for the appeal to be struck out or, alternatively, a priority hearing to be set down and an order that Ms Taueki provide security for costs.

Held: the appeal should be struck out because the only concern in the appeal was consultation and a lack of process by the district council. Consultation is not mandatory under the RMA 1991 in any event, but at the discretion of the council. No adverse effects on the environment were alleged in the appeal. The condition in the consent providing for consultation if any sites of significance to Mäori were found should allay any concerns.

Commentary: the court noted that its power to strike out should be used only where "the causes of action must be so clearly untenable that they cannot possible succeed" and the jurisdiction "is one to be exercised sparingly and only in a clear case" Attorney-General v Prince and Gardner [1998] 1 NZLR 262, 267. This case is presumablyat the borders of that jurisdiction.

 

Parliament

Tutae-Ka-Wetoweto Forest Bill

No 68-1. Government Bill. Hon Sandra Lee. 6 October 2000

Rakiura Mäori Land Trust is an ahu whenua trust established under the Te Ture Whenua Mäori Act 1993 in respect of some 31 sections of Mäori freehold land on Stewart Island which were provided to Mäori individuals in the early 20th century under South Island Landless Natives legislation.

The land has some 4000 owners and contains over 3515 hectares of virgin indigenous timber, vegetation and wildlife known as Tutae-Ka-Wetoweto forest. In October 1999, in exchange for "valuable consideration" ($10.9 million, tax exempt), the owners signed a deed of settlement and deed of covenant providing that they would continue to be owners and kaitiaki of the forest, but that they would manage it essentially as a national park and allow controlled public access. The conservation covenant provides for a management plan to be prepared and for the land to be managed to preserve the natural environment, wildlife, freshwater and historic values of the land, and to provide public access (although the Trespass Act 1980 still applies where any limitations on public access are breached). Rakiura will continue to exercise their "Mäori customary rights" with respect to the indigenous vegetation and land. No agricultural use will be made of the land for livestock or crops and responsibility for weed, pest and fire control will remain with the trust. The land will not be liable for rates, since it is in effect a national park land. The covenant will be registered against the title to the land under TTWM Act 1993 and will be deemed to be an interest in Mäori land.

The Act will be administered by the Department of Conservation under the Conservation Act 1987.

Commentary: the government had originally intended to legislate to prevent these ecologically valuable forests being milled, but settled on a negotiated approach. This is the largest and most significant area of South Island Landless Natives land under indigenous forest cover (Conservation Minister Nick Smith. Media release July 1999).

 

Other

UN Permanent Forum on Indigenous Issues

31 July 2000 ECOSOC/5932 Press Release and Hon Parekura Horomia press release July 2000

On the 31 July 2000 the United Nations Economic and Social Council adopted by consensus a resolution to establish a Permanent Forum for Indigenous Issues. The forum was first proposed in 1993 by the Vienna World Conference on Human Rights. Establishing the forum was one of the main objectives of the International Decade of the World’s Indigenous People (1995-2004).

The forum will be unique in that indigenous representatives as well as representatives of member states, will participate in a high-level forum in the United Nations. It will be a subsidiary organ of the Economic and Social Council and will consist of 16 representatives with 8 members nominated by governments and elected by the council, and eight appointed by the president of the council, following consultation with indigenous organizations and groups. The selection process is to take into account principles of representation and the diversity and geographical distribution of indigenous peoples.

Organizations of indigenous people may participate in the forum as observers, as may states, United Nations bodies and organs, and intergovernmental and non-governmental organizations. The permanent forum will hold its first meeting in 2002. It is also intended that the forum will hold an annual meeting to gauge indigenous views and concerns. In addition, The General Assembly has called for 9 August each year to be an International Day of the World’s Indigenous People. The creation of the forum has been welcomed by the Foreign Minister Phil Goff and the Minister of Mäori Affairs Parekura Horomia. "New Zealand looks forward to playing an active and constructive role in the work of the new forum, with a view to promoting the interests of indigenous people globally."