December-January 2001 Contents

MÄORI LAND COURT & APPELLATE COURT
Mäori incorporation elections to committee of management

WAITANGI TRIBUNAL
Ngäi Tahu challenge to Northern South Island claims
Ngäti Maniapoto urgency application

OTHER COURTS AND TRIBUNALS
High Court - commercial freshwater fisheries & the Sealords settlement
Environment Court - kaitiakitanga & consultation

PARLIAMENT
Health and Disability legislation
Race Relations Conciliator on the Health & Disability legislation
Review of human rights protections in NZ
Review of the Public Works Act

OTHER
Te Uri o Hau agreement
Simon Upton valedictory speech

MÄORI LAND COURT & APPELLATE COURT

In Re Rickard and Te Kopua 2B3 Block Inc
92 Waikato MB 157. 23 October 2000. Carter J

This case involved an application to investigate the election of one person to a committee of management of a Mäori land incorporation under s269(6) Te Ture Whenua Mäori (TTWM) Act 1993. Section 269(6) provides that, on the application of any shareholder or officer of an incorporation, the Mäori Land Court may investigate the conduct of any election of a member of the committee of management. The court called the parties and the committee of management to a judicial conference to discuss the application. The parties agreed that the court could proceed to a decision on the basis of the discussion at the judicial conference and without a formal hearing.

The facts were that at the AGM of the committee of management three vacancies came up for election. The Mäori Incorporations Constitution Regulations 1994 (reg 23) require that nominations must be received 3 days prior to the date fixed for the meeting. At the meeting, Mr Tukiri argued that he had not received a nomination form with his notice of meeting. The chairman allowed nominations from the floor. Mr Tukiri was nominated in this way, and elected.

Mr Tukiri argued that his election should be allowed despite the regulations because:

o The incorporation had been at fault in not sending him a nomination form with his notice of the AGM.

o The meeting had agreed to the proposal by the chairman to allow nominations from the floor. The 1993 Act stresses that consensus from the owners is desirable and that had occurred in this case.

o There had been undue delay in bringing the application. Mr Tukiri had been on the committee of management for 19 months. The current application had only arisen because of current dissent among the committee members.

Held: the application challenging Mr Tukiri should be allowed. Despite the fact that it was common practice with a number of incorporations, there was no requirement in the regulations for a nomination form to be sent with the notice of meeting. The onus is on a shareholder who seeks election to contact the secretary of the incorporation and obtain the necessary forms. The regulations specifically do not allow for relaxation of the rules surrounding elections, presumably because Parliament wanted firm rules to preserve the integrity of the election process.

While TTWM Act 1993 does emphasise consensus, that must be in the context of the provisions of the Act. In any event, the provisions concerning consensus do not necessarily apply to incorporations, which are legal bodies akin to companies and with constitutions fixed by the 1994 regulations. An incorporation cannot change its constitution and procedure by simple resolution at a general meeting.

There was no doubt that the procedures adopted at the meeting were wrong in terms of the constitution of the incorporation and the 1994 regulations.

With regard to delay, it was clear that there was no question about the conduct of Mr Tukiri during his time in office, and the present application had probably arisen only because of recent dissension. In addition, s269(6)/1993 provides that the court may investigate where it receives an application, which leaves the court with some discretion. However, there is no time limit within which an action under s269(6)/1993 must be taken, as is common for elections under other legislation. In this case however the breach of the rules was fundamental and not merely technical, and Mr Tukiri still had two years tenure to run, and so the court was required to act.

Consequently, there would be an order that the election of Mr Tukiri was invalid and a new election should be held at the forthcoming AGM. Since Mr Tukiri's conduct was not in doubt there was no reason for him not to stand again if he wished.

WAITANGI TRIBUNAL

Northern South Island claims and Ngäi Tahu - update

Te Runanga o Ngäi Tahu v Waitangi Tribunal & Others (CP 7/01)

Te Runanga o Ngäi Tahu has filed judicial review proceedings relating to parts of the Waitangi Tribunal's decisions on jurisdiction and standing in the Northern South Island district inquiry (see Mäori LR Nov 2000 p1). On 25 January 2001, the High Court in Wellington heard an application by Te Runanga for interim orders to restrain the tribunal from inquiring into claims within the Ngäi Tahu takiwä during the second week of the Ngäti Rarua hearings starting on 12 February 2001. The High Court adjourned the application sine die, finding that it was not necessary to make interim orders to protect Ngäi Tahu's position before the 12 February hearing. Instead, the court allocated a fixture to hear the substantive application in the weeks starting 12 or 19 March 2001.

Ngäti Maniapoto urgency application and other directions
Memorandum-Directions of the Deputy Chairperson (Wai 788 & Wai 800, doc 2.11)

The Tribunal registered two claims by Ngäti Maniapoto claimants concerning the proposed settlement of Ngäti Tama's Treaty claims against the Crown. That settlement related to an area that extended both north and south of the northern Taranaki confiscation line. The claims alleged that Ngäti Maniapoto had interests in the Mokau region north of the line, as well as interests to the south, and that the settlement prejudicially affected those interests. While the heads of agreement that Ngäti Tama and the Crown had signed provided that the Crown had to be satisfied that cross-claim issues in the area north of the line had been resolved before any settlement property was to be transferred, the claimants maintained that that did not explicitly require their consent to any transfer and they had no guarantee that the Crown would not make transfers of cross-claimed assets north of the line even if Ngäti Maniapoto opposed them. Further, the heads of agreement contained no protection for Ngäti Maniapoto interests south of the line. Although the Crown stated that it recognised the problem and would take account of any Ngäti Maniapoto representations, the claimants contended that this was not a sufficient guarantee.

The claimants applied for an urgent hearing on the ground that the imminent signing of a deed of settlement between Ngäti Tama and the Crown would prejudice the interests of Ngäti Maniapoto.

The Waitangi Tribunal had originally considered the application at a conference held in May 2000. However, it had deferred any decision because the parties agreed to enter into mediation under clause 9A of the second schedule to the Treaty of Waitangi Act 1975. The mediation, which took place from June to August 2000 on a "without prejudice" basis, aimed to develop an appropriate protection mechanism for the non-settling claimants. When the mediation failed to result in agreement between the parties, the claimants renewed their application for an urgent hearing.

Held: Without deciding the matter, if Ngäti Maniapoto's interests did include resources and sites within the settlement area, the claimants "clearly [had] a prima facie argument that the Heads of Agreement [did] not provide sufficient protection of Ngäti Maniapoto's interests". It was also "clear enough" that the potential impact for Ngäti Maniapoto was "significant indeed". If the Ngäti Maniapoto argument about its customary interests were made out, "potential assets for a Ngäti Maniapoto settlement may be removed from their reach". That justified an inquiry and, because the initialling of the deed of settlement was imminent, urgency was warranted.

The Deputy Chairperson attached strict terms to the grant of urgency, limiting the inquiry to a maximum of three days to be held in February 2001. He stressed that the hearing was not to deal with Ngäti Maniapoto's claims to the Mokau-Mohakatino block itself, but whether the proposed settlement would prejudice Ngäti Maniapoto's interests. Judge Wainwright, Professor Wharehuia Milroy and Dr Michael Bassett were appointed to hear the claim.

OTHER COURTS & TRIBUNALS

Te Arawa Mäori Trust Board and Others v Attorney-General & Others
CP448-CO/99 & Others. High Court Wellington. 5 December 2000. Anderson, Paterson JJ

The High Court was asked to determine to what extent the fisheries settlement of 1992 and associated legislation had settled Mäori claims in respect of commercial fishing rights in freshwater fisheries. The answer had relevance to two matters:

o Proceedings by Te Arawa (arising from a claim lodged in 1975) alleging that the Crown had in the past wrongly assumed control over Te Arawa's customary title to their lakes and extinguished their rights there. The Crown argued that the fisheries settlement was relevant to those proceedings.

o Proceedings by various groups ("Traditional Tribes" and "Tainui Waka Fisheries") disputing the proposals of the Treaty of Waitangi Fisheries Commission to allocate to iwi fisheries quota held by the commission under the fisheries settlement. If rights to commercial freshwater fisheries had been settled, as well as saltwater commercial fisheries, then the allocation plan would need to compensate some groups for the effect of the settlement on freshwater rights.

The background to the proceedings was the passing of the Fisheries Amendment Act 1986, introducing the quota management system for commercial fishing, which was disputed by Mäori in the courts. That led to the interim settlement of the Mäori Fisheries Act 1989 (affecting 10% of all commercial fishing quota). There was a hui-a-tau in July 1992 at which it was agreed that allocation of quota to groups should occur (as opposed to holding the quota centrally). There was little if any discussion of a broader settlement. Then followed the Sealords settlement of September 1992, when the Sealords company came up for sale and the government provided Mäori with the cash to purchase 50% of the company and its associated commercial fishing quota in a joint venture with Brierley Investments Ltd. In exchange, Mäori agreed that the interim settlement and the Sealord's purchase together settled all their fishing claims. The settlement was evidenced by a Deed of Settlement signed in September 1992, and put into effect by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (ToWFCSA 1992).

For these proceedings, the key documents were:

o Section 5.1 of the Deed of Settlement of September 1992 which stated that Mäori agreed that the settlement would extinguish "all commercial fishing rights and interests of Mäori whether in respect of sea, coastal or inland fisheries (including any commercial aspect of traditional fishing rights and interests)";

o Section 9 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 which declared that "All claims (current and future) by Mäori in respect of commercial fishing …. [w]hether in respect of sea, coastal, or inland fisheries, including any commercial aspect of traditional fishing" had been acknowledged and were finally settled. Section 9 went on to provide that the obligations of the Crown to Mäori in respect of commercial fishing were discharged, and all current and future claims of Mäori in commercial fishing were discharged.

Other relevant provisions were:

o Section 3/1992 providing that the 1992 Act be interpreted so as to further the agreements expressed in the Deed of Settlement.

o Section 10/1992 providing that the Crown should consult over the creation of a separate regime of regulations governing Mäori rights over non-commercial Mäori fishing rights.

o Section 40/1992 removing the jurisdiction of the Waitangi Tribunal to consider any claims relating to commercial fishing or fisheries.

Te Arawa argued that the 1992 fisheries settlement did not settle their claims in respect of freshwater fishing rights because the deed and legislation were not sufficiently explicit as to their effect on Te Arawa rights, and the references to "inland fisheries" and "commercial fisheries" in the deed and legislation were never intended to include sporting fish, trout and salmon (and freshwater fish were subject to separate regulation anyway under the Conservation Act 1987). They also argued that if freshwater fisheries were covered by the deed and legislation, then the only freshwater fisheries intended were those "realistically capable of commercial harvest".

Those arguments were supported by the Traditional Tribes and Tainui Waka Fisheries who were interested in the overall allocation of fish quota. They added that:

o The short timeframe (around 1 month) within which the fisheries settlement was achieved in 1992 supported the view that freshwater fishing rights were not settled.

o The negotiators in 1992 had no mandate to settle freshwater fishing claims.

o The Treaty of Waitangi Fisheries Commission and the Crown had not had a clear position on the issue. The commission had not referred to freshwater fisheries in consultation documents about the allocation of quota, and the Crown had taken a neutral stance on the issue.

The commission for its part argued that the only freshwater fishery claims which had been settled were:

o Those indigenous freshwater fisheries which were commercially harvestable within the context of the Fisheries Act - in practice, this meant the eel fishery.

o Any claim to compensation where a freshwater fishing right has been lost under the Fisheries Act.

The Crown argued that the fisheries settlement did not so much extinguish rights as substitute an indefinite set of potential rights which Mäori might have claimed, with definite contemporary rights in the form of fish quota (the word "extinguishment" was not used in the legislation, although it was used in the deed of settlement). The intention to settle all commercial fishing rights could not be read down in any way by referring to different parts of the deed or legislation.

Held: it was clear that the focus of the fisheries negotiations up until and during the hui-a-tau of July 1992 was on saltwater fisheries. While it was argued that, in the one month period over which the Sealord settlement was negotiated (late August to late September 1992) tribes were not aware that freshwater fisheries were included, a report of the Waitangi Tribunal issued in November 1992 (Fisheries Settlement Report 1992 (Wai 307)) and before the ToWFCSA 1992 was passed, clearly indicated that freshwater fisheries were included in the negotiations, and that the negotiators tried, but failed, to have them excluded from the settlement.

The general language of clause 5.1 of the Deed of Settlement encompassed commercial freshwater fishing rights. The factual background also supported that view.

Section 9 had to be interpreted so as further the agreement set out in clause 5.1 (s3/1992). Giving the words in s9 their plain and ordinary meaning they clearly embraced claims in respect of commercial fishing in freshwater fisheries both current and future. The term "inland fisheries" was synonymous with or at least included "freshwater fisheries". The background facts also supported this view. Even if freshwater fisheries were not much discussed prior to August 1992, they were clearly discussed during August and September 1992.

The effect of this was that any commercial freshwater fisheries rights of Te Arawa had been extinguished. Accordingly, as part of the quota allocation plan to be proposed by the commission, Te Arawa would need to be compensated for any loss of rights. In addition, Te Arawa was now prevented from pursuing any aspect of its 1975 claim against the Crown relating to the loss of commercial freshwater fishing rights. However, a claim in respect of the lake itself or the lake bed was not affected. Questions of mana in respect of the lakes were not affected by the 1992 settlement.

It could not be argued that a minor difference in the coverage of provisions dealing with non-commercial traditional fishing rights (s10 ToWFCSA 1992 versus cl5.2 Deed of Settlement) left some commercial fishing rights intact under s9. While it was true that clause 5.2 provided for "all fishing rights … other than commercial fishing rights" and s10 was narrower since it only referred to non-commercial species subject to the Fisheries Act, the difference only allowed that non-commercial fishing interests over species which were not subject to the Fisheries Act would continue to be covered by the Conservation Act and that consultation would continue over new regulations for those fisheries.

Nor could it be argued that s40 ToWFCSA 1992, because it removed the jurisdiction of the Waitangi Tribunal to consider any claims relating to commercial fishing or fisheries "within the meaning of the Fisheries Act", was limited by those words entirely to commercial fisheries under the quota management system (ie that the only freshwater fish included were eels). The Fisheries Act concerned the management of all fisheries resources, and the definition of "fish" includes freshwater fish, and the quota system could in the future apply to other freshwater fish if they should become commercially viable. Section 9 by its language "must extend to any commercial fishing claims made by Mäori, now or in the future, whether in respect of commercial fishing under the Fisheries Act or any other type of commercial fishing."

There was no inconsistency in the fact that this interpretation of the 1992 settlement meant that:

o Tribes might still have outstanding claims with regard to rivers and inland waters, although they could no longer make claims in respect of commercial fisheries in those rivers.

o Te Arawa and other inland tribes might get saltwater fish quota in compensation for their rights to freshwater fish.

However, sports fishing regulated under the Conservation Act 1987 was not commercial fishing and therefore was not affected by the 1992 settlement in as far as it dealt with commercial fishing. Any claim by Te Arawa that they had been prevented from commercially fishing trout in their lakes was now ruled out by the 1992 settlement, but a claim concerning the apportionment of licence fees for fishing sports fish in their lakes was not affected.

As to the meaning of commercial fishing, that term was not defined in the ToWFCSA 1992. Section 40 referred to commercial fishing "within the meaning of the Fisheries Act", but did not purport to be a definition in terms of s9. Nevertheless, the definition in s2 of the Fisheries Act - "means taking fish for sale within NZ or NZ fisheries waters" - accorded with the plain and ordinary meaning of commercial fishing. The fishing must be "commercial", which in ordinary terms included "barter or koha for material consideration". An enterprise would be commercial when, of its nature, it earned material return for effort expended. A reference to "pecuniary gain or trade" in s10 ToWFCSA 1992 reflected the essence of "commercial". Section 9 must therefore apply to "a business fishing venture by Mäori for the purposes of disposing of fish for a benefit, whether by way of sale or barter."

Sports fish were not fished commercially by Mäori within that meaning. Therefore any claim that Mäori might have, arising from their ownership of lake or river beds or inland waters, to obtain remuneration for allowing others to fish for sports fish in those waters, were not claims that were settled by s9/1992.

Auckland Regional Council v Arrigato Investments Ltd & Another: McDonald v Arrigato Investments Ltd & Others
AP138/99 & M126-SW00. High Court. 14 September 2000. Chambers J

These proceedings concerned a subdivision approved by the Environment Court (whose decision is reported at [2000] NZRMA 241). The Regional Council (proceeding AP138/99) appealed on the grounds that the Environment Court had made a number of legal errors in its approach to deciding the issue.

In addition, Mr McDonald, who had raised issues in the Environment Court about consultation with Mäori over the development, asked the High Court to consider whether the Environment Court had properly applied s7(a) Resource Management Act 1991, which requires that all persons exercising functions and powers under the Act, in relation to managing the use, development, and protection of natural and physical resources, must have particular regard to 'kaitiakitanga'. Mr McDonald contended that s7(a) required the Environment Court to identify whether there was an iwi or hapü with customary authority to speak for the land and to engage in consultation with them when identified.

Held: the appeal should be dismissed. "Particular regard" is a strong term, although not as strong as "shall" which is used in s6. The definitions involved were:

o 'Kaitiakitanga' defined in s2(1) as meaning "the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Mäori in relation to natural and physical resources; and includes the ethic of stewardship".

o "Tangata whenua" meaning, in relation to a particular area, "the iwi, or hapü, that holds mana whenua over that area".

o "Tikanga Mäori" meaning "Mäori customary values and practices".

o "Mana whenua" meaning "customary authority exercised by an iwi or hapü in an identified area".

Overall, these provisions required the court to have particular regard to the exercise of guardianship by the iwi or hapü holding customary authority in that area in accordance with Mäori customary values and practices in relation to natural and physical resources.

Since Parliament had chosen to express s 7(a) by a Mäori term, the Mäori understanding of that term must be paramount. However, it was important that non-Mäori speakers be able to understand the concept by the use of appropriate English terminology (Hayes, 'Defining Kaitiakitanga and the Resource Management Act 1991' (1998) 8 AULR 893).

Mr McDonald argued that the Environment Court erred in failing to ascertain whether there was "an iwi or hapü [with] customary authority to speak for the land". Although the Environment Court heard witnesses about waahi tapu sites it never asked those witnesses whether they had mana whenua "and by what process the witness claimed to have received mana whenua in accordance with the customary law procedures for appointment." Accordingly, it was argued that the Environment Court must have failed to identify a person who could have provided the court with the guardian's views from a Mäori perspective.

Mr McDonald regarded himself as one of the persons entitled to be consulted. But he did in fact give evidence before the Environment Court. That court also heard from Mr Haddon, the chairman of the Ngäti Wai Trust Board, who had been chairman for 20 years, and who stated that the trust board dealt with all matters in that area for the Ngäti Wai iwi, including resource management matters. Mr Haddon also stated that he was a kaumätua of the marae of Mr McDonald and gave evidence contrary to that of Mr McDonald.

It was simply a situation where the Environment Court had preferred the evidence of one Mäori over another, which it was entitled to do. Further:

"It is an error to describe the court's role under s 7(a) as one of consultation. The court's procedure is set out in the Act. While it is required to recognise tikanga Mäori where appropriate (s 269(3)), that does not involve a formal process of consultation with tangata whenua. I agree with the views expressed on this topic by the Environment Court in Contact Energy Ltd v Waikato Regional Council, unreported, A4/2000, 24 January 2000 at paras 118-121. In my view, the court did pay proper regard to kaitiakitanga. It was open to the court, in the event of conflicting evidence as to Mäori customary values and practices, to accept the evidence of one Mäori over another."

Consequently, Mr McDonald's appeal failed. The appeal succeeded however on the points of law taken by the Regional Council.

PARLIAMENT

New Zealand Public Health and Disability Act 2000
2000 No 91. 14 December 2000

This Act, which commenced on 1 January 2001, has been controversial because of provisions mentioning the Treaty of Waitangi, specific Mäori health needs, and specific representation for Mäori on health boards (See Mäori LR July 2000 p9 for a summary of the bill). A submission from the Race Relations Conciliator to the Health Select Committee which considered the bill is summarised below. The Act as passed provides:

o That the purpose of the Act is to provide public funding for health services in order to, inter alia, "reduce health disparities by improving the health outcomes of Mäori and other population groups" (s3(1)(b)).

o The Act now also provides that "To avoid any doubt, nothing in this Act (a) entitles a person to preferential access to services on the basis of race; or (b) limits section 73 of the Human Rights Act 1993 (which relates to measures to ensure equality)."

o Section 4 reads: "In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Mäori, Part 3 provides for mechanisms to enable Mäori to contribute to decision-making on, and to participate in the delivery of, health and disability services." Part 3 deals with District Health Boards (DHBs).

o Section 22 provides among the objectives of DHBs "to reduce health disparities by improving health outcomes for Mäori and other population groups" (s22(1)(e)).

o Section 23(1) provides that the functions of DHBs include:

"(d) to establish and maintain processes to enable Mäori to participate in, and contribute to, strategies for Mäori health improvement:

(e) to continue to foster the development of Mäori capacity for participating in the health and disability sector and for providing for the needs of Mäori:

(f) to provide relevant information to Mäori for the purposes of paragraphs (d) and (e)."

Clauses in the bill requiring minimum numbers of Mäori on DHBs (see s29(4)), Mäori representation on advisory committees (see ss34-36) and training for DHB members not familiar with the Treaty (see 3rd schedule cl 5) were passed essentially unchanged.

Commentary: the changes follow recommendations by the Health Select Committee which noted that many submissions were received on the Treaty and Mäori aspects of the legislation. In particular, the committee commented that:

o Clause 4 (now section 4) be amended "to limit potential legal risks which may arise from including the Treaty of Waitangi in legislation, as well as to define the application of the Treaty in the legislation. The recommended changes clarify that the principles of the Treaty are given effect by the Crown through involving Mäori in both decision-making and delivery of services. New clause 4 provides for the bill to recognise and respect the principles of the Treaty. The principles underpinning this are partnership, participation and protection, as defined by the 1986 Royal Commission on Social Policy. These will be detailed in the Mäori health strategy document."

o Clause 18(1)(b) had provided that DHBs have relationships with "mana whenua" or people with customary authority in tribal areas. The committee commented: "There was both strong support for and equally strong rejection of the inclusion of this provision. Some submitters felt that it might affect DHB relationships with other Mäori groups in the district. We received suggestions to replace the term 'mana whenua', including 'Mäori', 'tangata whenua', and 'whänau/hapü'. We were also made aware of the issues surrounding the use of these different terms, including those of relationships with urban Mäori groups." The committee recommended changes to make it clear that the DHB objective is to reduce health disparities by improving health outcomes for Mäori and other population groups. References to mana whenua and any "hierarchy of the different relationships between Mäori and DHBs" was removed.

The minority (National Party) members of the committee did not support the inclusion of a Treaty clause in social legislation and considered the amendments to clauses 3 and 4 a "huge watering down" of the position in the original bill. At the same time, they believed that this, along with the removal of the references to mana whenua might "deeply disappoint" the many Mäori who submitted in support of those clauses.

New Zealand Public Health & Disability Bill. Submission by the Race Relations Conciliator to the Health Select Committee
November 2000

Under section 5(1)(h)(iii) Human Rights Act 1993 (HRA 1993) the Race Relations Conciliator is required to consider the implications of any proposed legislation that may affect human rights in relation to race, colour, ethnicity or country of origin. The conciliator made submissions on proposed clauses in the bill referring to the Treaty and Mäori presence on health boards (see Mäori LR July 2000 p9).

The general concern of the conciliator was his awareness of the anxiety in the community relating to the Treaty of Waitangi and the resulting implications for race relations in New Zealand:

"Much of the apprehension would be alleviated if, rather than wide ranging, general legislative provisions, the government's intention was spelt out in greater detail identifying more precisely what it wishes to achieve. New Zealanders are not unreasonable people. Most appreciate the need to address the health needs of certain groups, as well as acknowledging the importance of providing health services in a culturally sensitive manner. But, equally, if the reason for introducing certain measures is not clear, they are likely to feel aggrieved and view provisions which appear to advantage one group over another as inequitable and unfair."

The Treaty references
The conciliator was particularly concerned about proposed clauses 3 & 4 of the bill providing that the legislation must be interpreted in a manner consistent with the principles of the Treaty of Waitangi and that it "recognises and respects" the principles in the provision of available funding for health and disability services for New Zealanders. The conciliator believed that this would be inappropriate because:

o It would contravene the standards set out in international human rights instruments;

o The human rights (and Bill of Rights) implications have not been fully considered;

o There was no reason to believe that the principles of the Treaty would not be read into the legislation; and

o It was inappropriate to include a provision in this form in social policy legislation which could be seen as privileging one race over another.

International instruments recognise both the right to be free from discrimination on the basis of race (eg United Nations Declaration of Human Rights art 2, Convention on the Elimination of All Forms of Racial Discrimination (CERD) enshrined in the Race Relations Act 1971), but also the right to health (eg Constitution of the World Health Organisation 1946, Universal Declaration of Human Rights art 25, International Covenant on Economic, Social and Cultural Rights art 12(1), Declaration of the Rights of Disabled Persons, United Nations Principles for the Care and Protection of People with Mental Illness, Convention on the Elimination of Discrimination Against Women, art 12, Convention on the Rights of the Child, art 24).

The reference to the Treaty in public health legislation creates a potential clash between the right not to be discriminated against and the right to be provided with the best form of health care. This conflict is highlighted in the CERD article 5 which provides that states must prohibit and eliminate racial discrimination in the enjoyment of the right to public health, medical care, social security and social services.

While an argument might be made for affirmative action to eliminate a legacy of discrimination, and that is specifically recognised in CERD (articles 1(4) & 2) "it is debatable whether the provision of health services at the expense of another racial group would fall within this requirement."

The conciliator pointed out that his office "frequently" receives complaints about health programmes which target specific ethnic groups. These include complaints about:

o Hepatitis B screening programmes for particular races;

o Campaigns targeting young Mäori women who smoke;

o Programmes which provide free contraceptive advice to Mäori and Pacific Island women;

o A mobile Mäori community nursing service for people with chronic cardiovascular conditions;

o Flu inoculations offered free to Pacific Island and Mäori people over 65.

Such affirmative programmes are possible under s73 Human Rights Act 1993 which permits interim measures to ensure equality. However, the measures must be implemented in good faith, be for the benefit of a group against whom it is otherwise unlawful to discriminate, and it must be demonstrated that it is necessary for the group to achieve equality with the relevant comparator group. The interim measure may then be justified until equality is achieved (see Amaltal Fishing Co Ltd v Nelson Polytechnic (No.2) [1996] NZAR 97). It is not possible to defend affirmative action "simply by referring to general disadvantage or Government policy."

However, it may not be appropriate to rely on s73 to support an affirmative action health programme, even where there is a demonstrated need because:

o Affirmative action programmes are an interim measure and therefore must cease when the level of the disease or disorder among the targeted group has been reduced to that of the general population.

o If the targeted group retains a genetic predisposition to the disease, "then the possibility and ease of infection remains a live issue, arguably defeating the point of the measure in the first place." The hepatitis B programme for Mäori and Pacific Island people is an example.

"From past experience it appears that, while New Zealanders are ready to accept affirmative action programmes promoting gender equity, they are less keen to accept similar programmes relating to race. Should the legislation be enacted in its present form, there will continue to be complaints about health programmes which are perceived as favouring one race over another and which may prove difficult to justify in terms of the Human Rights Act."

The proposed clauses would technically be allowed by the New Zealand Bill of Rights Act 1990, which outlaws unjustified discrimination (s19(1)) while allowing for affirmative action programmes (s19(2)), possibly in broader terms than the Human Rights Act 1993 itself. However, litigation under both acts would be "inevitable" if the clauses were passed in their present form, which would be an unwarranted diversion of limited health resources.

In addition, the courts had in the past indicated a reluctance to be involved in determining the detail of health policy, which is what the clauses would encourage.

In any event, the Crown Law Office had advised Cabinet that an argument for special treatment for Mäori could be made out, even without a specific reference to the Treaty in the health legislation. A less directive mention of the Treaty in the Purposes clause of the Bill had been recommended by officials as more suitable.

"The historical ambivalence towards viewing health as a human right is changing rapidly. It is now considered a fundamental right. To attempt to suggest that one race should have preference over another in determining access to health care (even notionally) is to invite resentment and anger from the group who is denied the service. This underlies the importance of ensuring that health services are shared equitably and decisions about allocation are not contentious. "

It was appropriate to adopt measures which would address Mäori poor health. However, this should not be at the expense of other New Zealanders. Targeting high risk groups was a better strategy. If there was a disproportionate number of Mäori within the targeted groups, then they stood to benefit from that measure in greater numbers.

Mäori representation on District Health Boards
The conciliator was also concerned about provisions in the bill providing that health boards have a minimum of 2 members who were Mäori and more than that in areas with high Mäori populations.

The conciliator thought this unwise because:

o Board members might be considered to be employees under the bill - and the HRA 1993 prohibits discrimination in employment on the basis of race (there was a contrary opinion from the Crown Law Office, but the matter was at least debatable);

o "Assuming that a person is able to do a job simply because they are of a particular race is illogical and potentially unlawful." It would be better to concentrate on requiring people to be chosen with the necessary skills and knowledge for the position.

Consequently, the conciliator was not opposed to "requiring specific Mäori representation on District Health Boards", but those appointed should be appointed for their particular skills and knowledge of the health area rather than on the basis of race.

Commentary: this submission is important not just to the health debate, but as an indicator of the mood of the non-Mäori public towards specialist programmes to address Mäori needs - at least as experienced by the Office of the Race Relations Conciliator. The submission also highlights the tensions that will continue to arise between Treaty rights, basic human rights and programmes for affirmative action or positive discrimination. For more on this issue see the review of the Discussion Paper on Human Rights Protections below.

Discussion Paper. Re-evaluation of the Human Rights Protections in New Zealand. Report for the Associate Minister of Justice and Attorney-General Hon Margaret Wilson
October 2000. Ministry of Justice. Te Manatü Ture

This paper re-evaluates human rights protections and makes a number of recommendations about the relative roles of the New Zealand Bill of Rights Act (NZBORA) 1990 and the Human Rights Act (HRA) 1993. Key recommendations with implications for the law as it affects Mäori are as follows.

Section 151 Human Rights Act 1993 should be repealed, meaning that the Act will no longer contain a statement that it may not override other acts unless explicitly stated. This will increase the likelihood of conflicts between the HRA 1993 and other legislation, and increase the likelihood that the courts will read conflicting legislation as far as possible to be consistent with the protections of the Human Rights Act.

The HRA 1993 should be amended to make clear that where any person or the government is accused of acting in a discriminatory way, and claims to be doing so pursuant to legislation, that complaint should be measured against the standards set in the NZBORA - as opposed to the HRA, which deals with discrimination in the private provision of goods and services. A process should be provided for such complaints when lodged with the new National Human Rights Institution (see below) to be taken as a case stated to the High Court. The majority of the review team rejected a proposal from one member of the team that the High Court be able to declare a statute to be incompatible with NZBORA (although it was noted that in two cases to date members of the Court of Appeal have been prepared to declare parts of statutes to be inconsistent with the NZBORA - Moonen v Film & Literature Board of Review [2000] 2 NZLR 9, R v Poumako (31 May 2000).

A National Human Rights Institution (NHRI) should be established, combining the roles of the current Race Relations Office and the Human Rights Commission. Its focus should be on programmes of education rather than being led by complaints received (although the complaints function would be retained). It would be ruled by a Governance Council composed of 7 to 9 people with a broad awareness of human rights in the NZ context, including the Treaty of Waitangi.

The NHRI would also have a specific function "To promote, by research, education and discussion, a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law." The paper provides the following discussion:

"For example, an understanding of Article 2 of the Treaty might be informed by section 20 (right to culture) of the New Zealand Bill of Rights Act, the international jurisprudence generated by article 27 (right to culture) of the International Covenant on Civil and Political Rights, and article 15 (right to cultural life) of the International Covenant on Economic, Social and Cultural Rights. The inter-relationship between the Treaty, section 73 (measures to ensure equality) of the Human Rights Act, and articles 2 (non-discrimination), 26 (equal treatment) and 27 (right to culture) of ICCPR, is another matter that could benefit from discussion. More generally, and partly because of the Treaty, New Zealand has rather more experience and understanding of the relationship between individual and collective rights than many other countries. Further discussion on the role of the Treaty in the human rights context may well enable constructive contributions to this subject at the international level."

In recognition of the fact that the Treaty is a human rights document, it should be added to the Long Title to the HRA 1993 so that it reads: "An Act … to provide better protection of human rights in New Zealand in general accordance with United Nations Conventions or Conventions on Human Rights and the Treaty of Waitangi."

Currently differing tests between the HRA and the NZBORA on affirmative action should be aligned. The current ability to have the Human Rights Commission approve affirmative action schemes (s28 Human Rights Commission Act 1977) should be retained by the new NHRI.

The current requirements for the Cabinet Office to consider both human rights and the Treaty of Waitangi should be simplified and consolidated, and government departments should be required to institute changes so that human rights are considered early in policy making.

A National Plan of Action for the promotion and protection of human rights should be instituted, driven by the NHRI. The plan would be the "state's national strategy for the greater promotion and protection of human rights." Mäori would be involved in consultation over the strategy.

Review of the Public Works Act 1981
Land Information NZ. December 2000

Public works legislation has played a key role in the evolution of both colonial and post-colonial New Zealand, enabling the acquisition of land for infrastructural development including roads and railways and for amenities such as schools, airports and hospitals. However, the operation of that legislation has sometimes had negative consequences for particular individuals or groups of people, especially where land has been acquired compulsorily. Land Information New Zealand (LINZ) is carrying out the first comprehensive review of the current public works legislation, the Public Works Act 1981. The review's objective is to produce new legislation "that is clear, workable sufficiently flexible to be able to meet current and future requirements for public works and gives effect to Crown obligations under the Treaty of Waitangi".

As part of the review process, LINZ has released a public discussion paper that focuses on key issues and available options for change. The issues fall into seven areas: defining what is a public work; who should be able to exercise public works powers; acquisition of land; compensation provisions; the disposal of land when it is no longer required for a public work; compliance and enforcement provisions with respect to the acquisition and disposal of land; and whether Treaty of Waitangi provisions should be included in any new legislation. The report also refers briefly to public works legislation in Australia, Canada, the United Kingdom and the USA.

Some of the specific issues identified in the review relate to:

o Whether the possibility of acquiring less than freehold interests in land should be widened to include the purchase of a right to occupy or entering into a joint venture agreement with a landowner. This would enable landowners to continue to hold an interest in their land and could allow the landowner to benefit from a public work that may also be a commercial enterprise.

o Whether the compensation provisions should be widened, for example, to use solatium payments for compensation for the intrinsic value of land to the landowner who has an attachment to the land.

o Whether there is a need for an offer-back regime where land is no longer required for a public work and the operation of such a regime including whether there should be a discretion to offer back at a value lower than the current market value and whether land should be offered back to wider family or whänau/hapü members when a former owner or successors are alive and decline an offer back.

o The protection of Mäori interests where it is proposed to transfer land from the Crown to a local authority for a local public work.

o Whether former Mäori freehold land should be returned as Mäori freehold land or whether the former owner should retain the current option of having it returned as general land.

o Whether the Mäori Trustee and the Mäori Land Court should have a role in the acquisition and disposal of Mäori land used for public works.

LINZ is conducting a series of marae-based hui specifically for consultation with Mäori, as well as general public meetings and meetings of interest and specialist groups. Written submissions on the review can be made up to 30 March 2001 and it is expected that Cabinet will decide on final policy and legislative changes during the latter half of 2001, with a Bill introduced to Parliament in early 2002. A very comprehensive web site is provided at: www.pwareview.linz.govt.nz.

OTHER

Deed of Settlement to settle Te Uri O Hau Historical Claims
Te Uri O Hau and Her Majesty the Queen in right of NZ

This Deed of Settlement addresses "Te Uri O Hau Historical Claims" which are 9 claims specific to Te Uri O Hau (TUOH), and 6 other claims in as far as they relate to TUOH and all claims arising from the Mangawhai Deed signed in 1854.

Aboriginal title or customary rights (if any) are not extinguished by the settlement, but any of the defined historical claims - including claims based on aboriginal title or customary rights, are extinguished.

The deed also defines "TUOH Claimants" as being all people who may claim descent from one or more ancestors who exercised customary rights predominantly within TUOH's "Area of Interest" from 1840 (identified by an agreed map). The ancestors must trace their descent from 1 named tupuna (Haumoewaarangi) and/or 8 named tribal groups. Adopted people are included. "TUOH Claimants" also includes 14 named TUOH marae, the governance entity of the tribe, and TUOH Company Ltd, and individuals, families and tribal groups making claims as TUOH - but does not prevent them making claims on behalf of another tribal group.

Under the deed, the Crown acknowledges responsibility for losses arising from:

o Proceedings and purchases associated with the Old Land Claims Commission which examined transactions in the Kaipara area between TUOH and settlers in 1839 and 1840.

o Crown pressure which resulted in the Te Kopuru block of some 6-8,000 acres being ceded as restitution for plundering the store of a storeowner whom TUOH suspected had desecrated an urupä.

o Crown purchases before 1865 where inadequate land was left for reserves and the sale money did not continue to be expended on benefits for TUOH as promised in deeds of purchase.

o The operation and impact of the Native land laws after 1865, including the awarding of reserves exclusively to individuals of TUOH.

o Interference with wähi tapu.

o Sales of land by the Taitokerau District Mäori Land Board and the loss of land and loss of the management of land via various development schemes.

The settlement is acknowledged not to fully compensate TUOH, but it is acknowledged that TUOH have foregone full compensation in order to contribute to the development of NZ, and the settlement is fair in all the circumstances.

The compensation is $15.6 million, comprised $8,487,500 and the transfer of commercial properties making up the balance plus first rights of refusal over certain other properties.

The settlement includes cultural redress made up of:

o Vesting arrangements over 11 areas, including parts of two scenic reserves and 3 conservation areas, and all wähi tapu sites in the Poutu Forest.

o Statutory acknowledgments and deeds of recognition over 4 areas.

o Acknowledgment of TUOH values over certain areas, including the Kaipara and Mangawhai Harbours.

o Grants of renewable nohoanga entitlements over 3 nohoanga sites.

o Protocols to issue from the Ministers of Conservation, Fisheries, Energy and Arts, Culture and Heritage providing for TUOH input into decision making.

o Changes to certain place and reserve names.

The cultural redress also includes several fisheries matters, namely:

o TUOH to advise the Minister of Fisheries on fisheries within a TUOH Fisheries Advisory Area.

o Acknowledgments of TUOH customary non-commercial interest in toheroa, shark, ray, flounder, snapper, kahawai and mullet fisheries in the TUOH Fisheries Advisory Area.

o A right of first refusal over specified amounts of quota for 4 specified shellfish species.

o Agreement to consider TUOH proposals regarding eel fisheries.

o Agreement to develop regulations for customary non-commercial interests in certain oyster reserves.

In terms of mandating, TUOH agree to establish a TUOH governance entity. The deed of settlement may be terminated if an appropriately mandated entity has not been established within 6 months of the signing of the deed.

It is agreed that legislation will be passed to give effect to the deed and also to remove the jurisdiction of the Waitangi Tribunal and the courts over the historical claims, the deed and the settlement legislation. Any memorials regarding Treaty claims on state enterprise, forest, railways or education land will be removed over land within an area specified by maps in the deed which is the same area within which TUOH have rights of first refusal over surplus Crown lands.

Commentary: in terms of drafting and the types of redress provided, the settlement is not significantly different from similar settlements with Ngäti Awa, Whakatöhea, and most of the Ngäi Tahu and Tainui deeds. The monetary compensation in comparison to the area and people covered appears quite small however in comparison with settlements with Ngäi Tahu and Tainui. It is not clear what benchmark has been applied.

Extracts from Simon Upton's valedictory speech
12 December 2000

The hill country from which the PM comes is very much where my own roots lie. It's a beautiful, not specially well known part of New Zealand that guards three magical harbours and some of the wildest and most exhilarating West Coast seascapes in the land. It's where my father's mother's family settled in the very earliest days of European settlement and I'd like, today, to relate a little piece of family history that has been in the back of my mind over the last few years.

If you open the old, 1940 Dictionary of New Zealand Biography you will find this laconic entry under the name of Wilson, Thomas:

"(1814-86), born at Burton-on-Trent, came to Taranaki in the Berkshire (1849) and spent some years in business in New Plymouth and farming. In 1856 he moved to Raglan in the Zillah and took up a farm at Okete, where he remained throughout the Mäori wars, running many risks and alarms from hostile natives. He represented Raglan in the Auckland Provincial Council (1873) and was chairman of the Whaingaroa road board and a member of the county council. Wilson died on 8th September 1886."

Behind that description of my great great grandfather, lies a fascinating tale. Like all early settlers who purchased their land from local Mäori, survival depended on getting on with your neighbours. Trade between settlers and Mäori developed very quickly.

I grew up in the 1960s listening to my great Uncle - Harold Wilson - reminiscing about life in the Raglan hill country in the second half of the nineteenth century. He knew Tawhiao and Te Puea and, like all members of the first three generations of the family, spoke fluent Mäori.

Mäori and Pakeha alike were cattle traders. He would talk of how they swam mobs of cattle over the harbour mouths using horses, dogs and Mäori canoes, judging it so the turning tide carried the stock to right landing place.

Relations must have been good. Mäori used to sharpen their axes on the Wilson grindstones. And when local Mäori expressed concern that tomos in which they'd placed valuable items might be raided, the family obtained iron gates to close off the entrance.

As tensions rose with the approach of the land wars, some Mäori advocated the speedy despatch of the Pakeha. My great grandfather - a young man at the time - found himself on the receiving end of this sentiment one day as he squatted on the floor of a whare in Okete. A fierce Mäori warrior from the Taranaki had come up the coast to call people to arms and was addressing the locals.

There was a single, white tallow candle burning in the whare and to demonstrate what should happen to the settlers, the speaker raised his taiaha and swung it violently through the candle, decapitating it. "And", he said, "we should clean up the Wilsons first."

My great grandfather said he'd never been so terrified in his whole life. But the local elder, one Wiremu Te Naana, intervened. "We have no quarrel with the Wilsons", he said. "They're our friends". And he took off his feathered cloak - his korowai - and placed it around my great grandfather's shoulders and effectively placed a tapu on the family. It remains in the family to this day.

No-one was harmed. And so my great grandfather, his father and the rest of the family carried on farming without running any "risks and alarms from hostile natives".

And all of us, to this day, know that we owe our existence in New Zealand to that act of magnanimity.

Now there is no particular moral to be drawn from this tale other than that my forbears - and their Mäori contemporaries - had to work out, face to face, how to live together. And so must we today. We have to be honest about our history, but there is no need to be trapped by it.

I have gone on the record and said that I am not unduly phased by Tariana Turia's description of what colonisation meant for Mäori. Social and cultural upheaval, diseases that decimated the population, land alienation and the destruction of the landscape must have been pretty traumatic. New Zealanders who react with horror that she should have described it as a holocaust are being a bit precious - or indulging in collective amnesia.

But having said that, it doesn't follow that contemporary New Zealanders should walk around in sack cloth and ashes. Or that we should start to romanticise the position Mäori found themselves in by the late eighteenth century. Their isolation from globalisation could not have been preserved. The technological gap was too large for them to have resisted outsiders. And in any case, like any adaptable people, they saw real advantages in engagement with Europeans.

They weren't trapped by their history. Neither should any of us here today. Which is why I don't believe the Treaty of Waitangi can provide us with much guidance. There's just not enough to it. While I would strenuously defend the settlement of the long-standing land-based grievances raised under Article II, many aspects of the Treaty are deeply problematic. While its historical significance cannot be swept aside, neither can it provide answers to constitutional questions that were not in the minds of the parties at the time. The Treaty of 1840 isn't a blueprint for how we should govern ourselves.

In this vein, I must express grave misgivings about those who would attempt to build a constitutional debate around an assertion that the Treaty involves a partnership. Not only is that not what the Treaty says. The idea perpetuates a fiction that we can solve our differences through negotiations between Mäori and an abstract entity called the Crown.

But the Crown has no political will or resources independent of the people. Claims against the Crown are claims against all New Zealanders (including Mäori who, on that basis, can claim to be on both sides of the table at once). Those who seek to invoke the Treaty in respect of the radio frequency spectrum, genetically modified organisms or social services are ultimately seeking to influence the allocation of resources and the distribution of income through the exercise of political power.

That's a perfectly legitimate thing to do in a democracy. But we should be under no illusions that where the exercise of political power is involved, we are talking about powers that rely for their legitimacy on a democratic mandate that can be withdrawn.

That is why I view with increasing concern the tendency to leave it to the courts to sort out what Parliament finds itself unable to determine on Treaty issues.

I have been a party, during the 1990s, to legislative evasions that have effectively passed to the courts, judgements that are inherently political. The Resource Management Act and the HSNO Act are just two examples which I was myself responsible for putting on the statute book. The uncertainty that Treaty references therein have generated - and the prospect that they can only be determined by judicial means - is seriously corrosive of public confidence.

The reaction the current government experienced in respect of its own health legislation was, to my mind, the result of rising levels of disquiet that profound changes have been under way for well over a decade now that have no firm mandate.

Indeed, a comparative study of values and attitudes over the last decade by Massey University shows an unequivocally rising trend of rejection to the Treaty of Waitangi. As the authors put it, with masterly understatement, the results "seem to indicate that this issue is a major point of division within the country".

The responsibility for that rests squarely with all of us who have handled these issues over the last 15 years or so. To my mind, MPs need to debate these issues directly and without a politically correct filter. It is better to risk offence and have things in the open than perpetuate a subterranean conversation that allows all sorts of prejudices to smoulder.

I don't believe the Treaty is the point of unity some wistfully hope it might be. Neither is it the rock on which a sense of shared identity can be easily built. It was a political deal. And politics is rarely a sound basis for emotional bonds. I'd like to propose a different one and, in doing so, reiterate a theme I've touched on several times in the last couple of years.

Very simply, these were the last islands of any size on the planet to be reached by human beings. We are, in geological and anthropological terms, both extremely late arrivals. Before Polynesians arrived here there were only birds living amidst the temperate forest remnants of Gondwanaland. Mäori date their arrival through oral history. Contemporary science fixes the clock through dating the pulse of extinctions that accompanied their arrival.

Unlike almost anywhere else on earth ours is a land, and a landscape, that has not co-evolved with humans. Go to Africa, South Asia, China or the Mediterranean and you will see landscapes in which nothing primordial has survived. The imprint of humanity is inescapable. Whereas here, in New Zealand, we are literally surrounded by the last vestiges of Eden.

Last spring I walked onto the beach at Papatowai in the Catlins on New Zealand's most southern and easterly coast and contemplated just such a remnant. Across the estuary from where I stood a regenerating rimu forest, some 150 years old, held the foreshore. Rising above it were a few gnarled old podocarps - sentinels of an earlier era. From the soft alluvial river bank opposite, a constant stream of moa bones is exposed by estuarine erosion. It's one of the earliest sites of human landfall in the South Island.

On my side of the river, the bush was older, less disturbed. Pushing just a few metres into the undergrowth we came immediately upon three ancient trees, a rimu, a matai and a totara -the last, a simply massive specimen a thousand years old or more my guide suggested. It was a transcendental moment standing face to face with a living object that had stood guard on this site long before the first waka appeared. And so it is in many fragmentary corners of New Zealand. There are probably trees still living that moa grazed before their rapid despatch at the hands of humans.

We have, in 700 - 800 short years, completely 'terraformed' this corner of our planet. A youthful (and unstable) geological landscape and an ancient biota had somehow remained intact but vulnerable. The land had no defences save isolation. First Mäori, then European invaders wreaked havoc. From this point of view, the question of who arrived here 'first' becomes meaningless. We arrived within a split second of one another and we live amidst the ruins. It is true to say here - in a way that cannot be said anywhere else - that, in one sense, humans do not belong here. We are interlopers from another geological age and we have set in train a pattern of extinctions and ecological upheaval that cannot be reversed.

Neither Mäori nor European settlers knew how to live with the strange land they had encountered. The technologies of exploitation they deployed were very different; the scale of their ecological footprints very different. But in the innocence - and the ignorance - of their respective encounters, some 500-600 years apart, they came face to face with something unique that continues to trouble us all to this day.

Could it be that our shared national identity might, for the first time in history, be rooted in a crusade to save from annihilation, not a people or a culture, but a fragment of the biosphere. The land we live in gnaws away at us, as we gnaw away at it. I know of no New Zealanders who are indifferent about the landscapes, the seascapes and skyscapes that dominate our lives.

The way we wrestle with the forces we have unleashed, could determine our national identity. If we let the slide continue we remain just another colony of itinerant human grazers whose appetites and motivations have - since the last Ice Age - caused such profound changes to the planet. But if we turn the tide, we could forge an identity built on a coming to terms with our land that would be an act of human imagination without precedent.

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