March 2001 Contents

WAITANGI TRIBUNAL
Memorandum - Wairarapa claims
Ngäti Maniapoto/Ngäti Tama Settlement Cross-Claims Report

OTHER COURTS AND TRIBUNALS
High Court - Ngäi Tahu & the northern South Island claim hearings

REPORTS & ARTICLES
Law Commission Study Paper - Mäori Custom & Values in NZ Law

WAITANGI TRIBUNAL

Memorandum and Directions concerning the Wairarapa claims
Wai 863, 8 March 2001. Judge Wainwright

The Waitangi Tribunal is preparing to hold an inquiry into Wairarapa claims. Judge Wainwright, the Mäori Land Court Judge who will preside over the inquiry, issued directions on 8 March 2001 in which she signalled that the Wairarapa inquiry will follow the new approach that has been developed in the Gisborne inquiry (see Mäori LR March 2000 p4). Applying that approach, the presiding officer, assisted by a kaumätua, will conduct a series of conferences with the aim of identifying and resolving, so far as it is possible, issues in advance of hearings proper.

Instead of issuing a lengthy and comprehensive report, Judge Wainwright has foreshadowed the possibility of a summary report that "would set out the Tribunal's main findings and the chief reasons for those, but would not rehearse all the material contained within the historical reports. Such a report ... would be able to be produced relatively quickly, and would be designed to provide a basis for negotiations with the Crown to be embarked upon sooner rather than later."

The Tribunal has scheduled the first conference of parties for 26 April 2001, which will deal with a range of preliminary matters including identification of the main claimants, the extent of the Wairarapa hearing district and parties' views on the Tribunal's method of reporting.

The Ngäti Maniapoto/Ngäti Tama Settlement Cross-Claims Report
Wai 788, Wai 800. 29 March 2001. Judge Wainwright (presiding), MER Bassett, JW Milroy

Background
In June 1996 the Waitangi Tribunal released the Taranaki Report: Kuapapa Tuatahi which reported on 21 claims in the Taranaki region. The main issue was the confiscation of large areas of land and associated events (see Mäori LR June 1996 p2). One of those claims was by Ngäti Tama of north Taranaki (Wai 135). The tribunal report commented on two large blocks of land immediately north of the confiscation line. In 1882 the Native Land Court determined that the traditional ownership of those blocks (the Mohakatino-Parininihi and Mokau-Mohakatino blocks) lay with Ngäti Maniapoto. In doing so, the land court rejected all Ngäti Tama claims to traditional rights in those blocks.

The tribunal found that the decision of the Native Land Court was wrong and politically motivated.

However, this did not mean that Ngäti Tama were "solely entitled to the whole of the lands to the Mokau River", although Ngäti Tama actually made that claim before the tribunal. Rather, the tribunal said that it must wait to hear from other groups. In the meantime, it concluded that Ngäti Tama had lost through the Native Land Court decision an area "probably equivalent to the greater part of the Mokau-Mohakatino block, say 66,000 acres" and "It may not be necessary determine the matter more precisely, unless the Government proposes compensating every lost acre or unless it is crucial to assessing the apportionment of compensation between hapü."

In September 1999 mandated representatives of Ngäti Tama signed a Heads of Agreement with the Crown which indicated that all areas south of the confiscation line were an "exclusive claim area" where settlement could proceed immediately. Areas north of the line were a "cross claim area" and the settlement with Ngäti Tama would proceed only after Ngäti Maniapoto had been consulted and the Crown was satisfied that it could proceed.

Ngäti Maniapoto claims
Before the Heads of Agreement were signed Ngäti Maniapoto had already notified the Crown that they claimed interests both north and south of the confiscation line. After the signing, Ngäti Maniapoto lodged a claim to the Waitangi Tribunal (Wai 800) arguing that the Crown ought not to proceed until Ngäti Maniapoto cross-claim issues had been resolved. Ngäti Maniapoto claimed that:

  • Their traditional interests extended several kilometres south of the confiscation line to the "Wahanui line" which was mentioned as the southern boundary of the Ngäti Maniapoto rohe in a petition to Parliament in 1883.
  • Any redress offered to Ngäti Tama within the Wahanui line (whether a return of land or some other recognition of interests) would be an infringement on their mana.
  • The land to be returned to Ngäti Tama included some conservation lands (over 250 hectares held in several parcels) which lay in the zone north of the Wahanui line but south of the confiscation line ie in the area the Crown considered the "exclusive claim area" of Ngäti Tama.

Ngäti Maniapoto also claimed that the use of the confiscation line to delineate between claimant groups was improper, and that there had been inadequate consultation.

The matter was sent to mediation under clause 9A 2nd Schedule Treaty of Waitangi Act 1975. That mediation failed and, against the protests of the Crown and Ngäti Tama, the tribunal conducted an urgent hearing. Ngäti Maniapoto were joined at the hearing by Tamahaki Inc, representing certain Whanganui River Mäori (Wai 555). Three Ngäti Maniapoto claims were involved (Wai 800, 788 & 577).

The hearing process
In directions for the urgent hearing, the tribunal stressed that the hearing would be solely about "whether the Ngäti Tama settlement would prejudice Ngäti Maniapoto and/or Tamahaki interests" and not an opportunity to hear claims about how the Crown actions had affected those iwi nor about Ngäti Maniapoto claims in the Mokau-Mohakatino block.

The hearing was in Wellington, with about 80 Ngäti Maniapoto present and a small number of Tamahaki claimants in support. Ngäti Tama were not represented by legal counsel.

Statements of issues and responses were filed in advance. All evidence was taken as read and cross examination was not permitted except by leave.

At the hearing, the tribunal indicated that it did not want to focus on the Crown consultation with Ngäti Maniapoto to date. It took a flexible approach to procedure. "All counsel, … cooperated in a fluid process: information was provided when needed and several adjournments were taken for körero (discussion) between claimants, their counsel, and the Crown." After one lengthy adjournment the Crown reported on several extra actions which it would take to ease Ngäti Maniapoto concerns about the proposed settlement with Ngäti Tama. Ngäti Maniapoto had remaining concerns however, and a tribunal finding and recommendations were necessary.

The Crown argument
Prior to the hearing the Crown had advised Ngäti Maniapoto that it recognised that Ngäti Maniapoto had historical claims in the Ngäti Tama claim area and, after receiving comments from all interested parties, had commissioned independent research on customary interests and associations in the lands which the Crown intended to return to Ngäti Tama. The Crown had also formally advised the Department of Conservation, the Ministry of Fisheries and the district and regional councils that despite any settlement with Ngäti Tama, issues remained as to Ngäti Maniapoto interests in the settlement area which still had to be considered.

The Crown also revised the Ngäti Tama settlement by:

  • Withdrawing from the settlement offer 4 properties north of the confiscation line which were to have been vested in Ngäti Tama.
  • Withdrawing offers of nohoanga (camping entitlements), statutory acknowledgments and deeds of recognition over certain areas around the Mokau river where the Crown considered Ngäti Tama interests to be insufficiently strong.
  • Limiting rights of first refusal which would be granted to Ngäti Tama to purchase shellfish quota, and limiting a preferential right in respect of coastal tendering (under the Resource Management Act 1991) south of the confiscation line.

The Crown also pointed out that, while the proposed settlement would, south of the confiscation line, make provision for removing memorials from any former State-owned Enterprise lands (so that claims to the tribunal for their compulsory return could no longer be made), and give Ngäti Tama a first right of refusal over any Crown properties which became surplus, there were in fact no memorialised properties in that area and the only Crown lands were owned by the Department of Conservation which are rarely if ever declared surplus. Consequently, those settlement provisions were notional only with no practical effect on Ngäti Tama or Ngäti Maniapoto.

The Crown admitted that the confiscation line was an artificial one which did not accord with iwi boundaries, but that the core lands of Ngäti Tama lay south of the line, and in light of the tribunal's 1996 report and the Crown's independent research, it was appropriate to use the line for the purpose of removing memorials and offering a first right of refusal to Ngäti Tama.

At the hearing the Crown made further offers to:

  • Provide Ngäti Maniapoto with a letter informing local authorities of their continuing need to consult with Ngäti Maniapoto despite any settlement with Ngäti Tama.
  • Examine the wording of the Deed of Settlement with Ngäti Tama to ensure that Ngäti Maniapoto rights to fisheries assets from the fisheries settlement in 1992 were not affected in any way by the settlement.
  • Retain ownership of Kawau Pä which was in dispute between the parties - although the Crown reserved the right to recognise Ngäti Tama interests in a non-exclusive way as part of the Ngäti Tama settlement.

The Crown argued that:

  • It was not its role to resolve mana issues between claimant groups.
  • Those groups ready to settle should not be delayed until other groups were ready to proceed.
  • The use of the confiscation line in the proposed settlement was not intended to make any comment on mana issues.
  • Much of the redress offered to Ngäti Tama such as deeds of recognition and statutory acknowledgments which recognised Ngäti Tama links with a particular place for the purposes of Crown and local authority activities were "non-exclusive", that is, it could be offered to more than one group.
  • The exclusive redress being offered was only in those situations where the Crown was satisfied that there was ample evidence that an offer of exclusive rights was justified.

Ngäti Tama adopted the Crown submissions.

Tribunal findings
Despite these concessions, Ngäti Maniapoto remained concerned that the offer of any form of redress to Ngäti Tama, whether exclusive or non-exclusive, north of the Wahanui line, would impact on the mana of Ngäti Maniapoto. "[T]heir tüpuna laid down for them the area over which Ngäti Maniapoto have mana, and honouring the memory of those tüpuna necessarily involves defending from modern incursion the boundaries that in times past were defended by force of arms." Statutory acknowledgements would be regarded as a modern incursion.

Ngäti Maniapoto did not deny that Ngäti Tama returned to northern Taranaki from the 1840s onwards, but their presence there north of the Wahanui line was at the pleasure of Ngäti Maniapoto (ie by 'aroha').

The tribunal acknowledged that Ngäti Maniapoto felt "duty-bound" to follow their tüpuna and maintain mana within their boundaries, but this provided little scope for movement in discussions with the Crown and Ngäti Tama. The tribunal did not wish to express a decided view on the question and definition of mana in this case, since the evidence was limited to the cross-claim issue, but "it is fair to signal that the members of this Tribunal certainly have some difficulty with the translation into practical application in the present day of the concept of mana proffered by Ngäti Maniapoto."

The tribunal accepted that the Crown could use the confiscation line for the Ngäti Tama settlement but it should do so only in a "very limited" way. Wherever possible:

"the Crown should eschew the use of lines on a map which define, or may be presumed to define, traditional or modern tribal boundaries. We would similarly avoid the use of the 'Wahanui line' for such purposes.

Mana was, and is, we think, much more to do with areas of influence, which were often identified by reference to landscape features rather than by lines on maps. Such lines are simplistic and bald, and bear no relation to tikanga. While convenient, they will usually be wrong."

The Crown should recognise that if it adopts a boundary for the purpose of granting a tribal interest, that may well be interpreted as an "affirmation of rohe". The Crown should do all it could to emphasise that the confiscation line was used for narrow purposes only. Its efforts to advise the local authorities and others of the position were therefore necessary.

As for the balance required between Ngäti Tama and Ngäti Maniapoto interests, the tribunal had recorded in its 1996 report that Ngäti Tama had interests north of the Wahanui line, and the independent research commissioned by the Crown confirmed that Ngäti Maniapoto interests grew progressively weaker the further south they came. The Crown was involved in a "delicate balancing exercise". In the tribunal's view it was possible in situations such as this to conclude a settlement with one group first provided that the Crown retained adequate capacity to provide redress to the other group when their claim was ready for settlement. That had been achieved in this case.

In terms of the 'exclusive' redress offered to Ngäti Tama the tribunal found that:

  • The revised settlement to Ngäti Tama was an appropriate balancing of the Crown obligations to Ngäti Tama and Ngäti Maniapoto.
  • Some of the 1967.8 hectares to be vested in Ngäti Tama was south of the Wahanui line and therefore not in contention.
  • The 1967.8 hectares was the only land to actually be included in the Ngäti Tama settlement.
  • The Crown would retain over 30,000 acres of conservation land north of the Wahanui line. "We accept Crown assurances that, while it is not Crown policy to effect the wholesale transfer of conservation estate as part of Treaty settlement, there is plenty of scope for the Crown to make transfers of Department of Conservation land to Ngäti Maniapoto."
  • Ngäti Tama would be "seriously disadvantaged" if no land were to be transferred until Ngäti Maniapoto determined how they might want to proceed with their claim. It would mean that only the money part of the settlement would transfer to Ngäti Tama and a limited area of land south of the Wahanui line.
  • Such a result would have serious precedent implications for other claim settlements. "If the Tribunal were to take the view that the Crown ought not to deliver redress to any where where there were overlapping or cross-claims, the repercussions for the Crown's settlement policy would be very serious."

In terms of the 'non-exclusive' redress, the tribunal found that:

  • The Crown was obliged to act in light of the 1996 report of the tribunal that Ngäti Tama had interests north and south of the confiscation line.
  • Given Ngäti Maniapoto's view that any recognition of Ngäti Tama north of the Wahanui line would infringe on its mana, the Crown simply had to do the best that it could, and it had done so in this case.
  • This was also reflected in the Crown's ongoing efforts to ensure that the settlement with Ngäti Tama should not affect the duty imposed on local authorities to consult with Ngäti Maniapoto under the RMA 1991, nor affect the outcome of the fisheries settlement.

The Crown must however "be constantly vigilant to ensure that, in awarding interests to Ngäti Tama under the heading of non-exclusive redress, it preserves its capacity to provide similar redress to others who demonstrate an equivalent interest in the future. If the Crown fails to do this, the redress labeled non-exclusive will, in effect, be exclusive."

With regard to one site, Te Kawau Pä, the Crown had acknowledged that there were strong Ngäti Maniapoto and Ngäti Tama interests in that historic reserve currently in Crown ownership. The tribunal agreed that title should not be vested exclusively in either claimant group and that mechanisms should be found to ensure that both groups were involved in its management and ownership in the future. The Crown should facilitate a joint hui to this end. If no agreement on future management and ownership was reached, then this one matter should await the settlement of the Ngäti Maniapoto claim, and the Crown ought not in the meantime to offer Ngäti Tama a statutory acknowledgment and deed of recognition as part of their current settlement.

Commentary: inter-iwi arguments over the appropriate boundaries of claim settlements are becoming increasingly common. Consequently, this is an important report. It indicates that a fairly pragmatic approach may be taken by the tribunal if it is forced to rule on such issues. The power of the tribunal to refer such boundaries matters to the Mäori Appellate Court for a decision (s6A Treaty of Waitangi Act 1975) is not favoured. It may not have much purpose if custom does not allow a single line to be drawn between contesting groups and if the decision only has a very limited application anyway (see the High Court decision reported below).

OTHER COURTS & TRIBUNALS

Te Runanga o Ngäi Tahu v The Waitangi Tribunal and others
CP 7/01, 4 April 2001. High Court, Wellington. McGechan J

Te Runanga o Ngäi Tahu sought judicial review of two decisions of the Waitangi Tribunal panel constituted to hear the northern South Island claims. The decisions were contained in two memoranda, one issued on 3 November 2000, the other on 28 November 2000 (For a detailed summary of the memoranda, see Mäori LR Nov 2000 p1).

In the first decision, the Waitangi Tribunal held that it could embark upon its inquiry into the Te Tau Ihu claims at the north of the South Island while adjourning the general question of jurisdiction in respect of claims that related to the Ngäi Tahu takiwä. The tribunal considered that the question of jurisdiction could be raised on an issue by issue basis as the Te Tau Ihu inquiry proceeded and evidence became available.

In the second memorandum, the tribunal issued procedural directions in which it held that it would not be appropriate for it to make a blanket ruling on Ngäi Tahu's right to appear in the Te Tau Ihu inquiry; rather, the issue would also be decided on a claim by claim and issue by issue basis. To that end, the tribunal directed that Ngäi Tahu was to advise the tribunal within 28 days of evidence being presented of any evidence it wished to present and any witnesses it wished to recall to cross-examine. The tribunal would determine for each such application if "interested person" status under s4A Commissions of Inquiry Act 1908 attached to that request. The hearing of Ngäi Tahu issues would take place at the end of claimant evidence and before the Crown presented its evidence in reply to the claimants.

Held:

The Tribunal's jurisdiction decision

The question as to whether the Waitangi Tribunal's jurisdiction had been removed was one of statutory interpretation relating to Te Runanga o Ngäi Tahu Act 1996 (the "Runanga Act"), the Ngäi Tahu Claims Settlement Act 1998 (the "Settlement Act") and the Treaty of Waitangi Act 1975. These statutes were linked and were to be construed together. Section 5 of the Interpretation Act 1999 required their meaning to be ascertained from the text in light of the statutes' purpose. They also had to be considered in light of any relevant Bill of Rights and Treaty requirements.

Section 5 of the Runanga Act set out the "takiwä of Ngäi Tahu" but the Act did not define the meaning of the word "takiwä". However, the factual background when the legislation was enacted was that the Te Tau Ihu claims contested the Ngäi Tahu takiwä, in 1990 the Mäori Appellate Court had confirmed Ngäi Tahu as having sole ownership in the Ngäi Tahu takiwä, and the Waitangi Tribunal report on the Ngäi Tahu claims referred to an intention to examine in due course other claims outside the Ngäi Tahu takiwä. Further, section 3 of the Runanga Act stated that the Act bound every person whose rights were affected and it was inherently likely to refer to both internal and outside contests to Ngäi Tahu's boundaries.

The Settlement Act, and the insertion of s 6(9)-(12) into the Treaty of Waitangi Act 1975, were enacted against this background, and also after the passage of the Ngäi Tahu (Pounamu Vesting) Act 1997, which vested the highly prized pounamu within the takiwä of Ngäi Tahu, with no suggestion by way of reservation or otherwise of other iwi interests being recognised.

Among other things, the preamble to the Settlement Act stated:

"Ngäi Tahu is today, and was at the time of the signing of the Treaty, the tangata whenua within the boundaries already confirmed [in the Runanga Act]."

Section 6 of the Settlement Act set out the text of the Crown's apology. This stated that the Crown recognised Ngäi Tahu as the tangata whenua of, and as holding rangatiratanga within, the takiwä of Ngäi Tahu whänui. While the preamble and the apology did not have operative effect, they did point to Parliament's understanding and it was notable that Parliament recognised Ngäi Tahu as "the" tangata whenua in the takiwä and not as "one of the" tangata whenua. Section 461 of the Settlement Act, which stated that the settlement of the Ngäi Tahu claims effected under the Act was final, was "naturally … directed at finality between Ngäi Tahu and the Crown" but did not on its face intend to deal with third party challenges. However, McGechan J considered s462 of the Settlement Act to be more "enigmatic on its face". That section enacted s 6(9) Treaty of Waitangi Act 1975, which excluded the tribunal from inquiring into, or from making any finding or recommendation in respect of:

(a) any or all of the Ngäi Tahu claims, as defined in section 10 of the Ngäi Tahu Claims Settlement Act 1998; or

(b) the deed of settlement, as defined in section 8 of the Ngäi Tahu Claims Settlement Act 1998; or

(c) the benefits provided to Ngäi Tahu under the deed of settlement or the Ngäi Tahu Claims Settlement Act 1998; or

(d) the Ngäi Tahu Claims Settlement Act 1998.

In particular, his Honour considered that s6(9)(c)/1975 was open to two different interpretations. On one interpretation, the barrier to inquiring into "benefits provided to Ngäi Tahu under the deed of settlement" applied only to matters raised by either Ngäi Tahu or the Crown. On the other, the reference could be taken to prohibit inquiry or the like into such benefits by the tribunal at the behest of any person at all, including other iwi. If that were the case, the tribunal's jurisdiction to hear such claims was barred.

McGechan J looked closely at the history of the draft provisions of the Settlement Act as they were considered by Parliament, but in the end he read the legislation "in accordance with the natural meaning of its words and in light of its evident purpose, which was to effect final settlement between Ngäi Tahu and the Crown - and no-one else. Thus, on balance His Honour considered that the Runanga Act, ss461 and 462 of the Settlement Act, and s6(9) of the Treaty of Waitangi Act "should not be interpreted as removing the jurisdiction of the Tribunal to hear Te Tau Ihu claims simply because they assert Te Tau Ihu iwi historic interests within the statutorily defined takiwä of Ngäi Tahu."

McGechan J also considered the effect of s6A Treaty of Waitangi Act 1975, which empowered the tribunal to refer questions as to Mäori tribal boundaries to the Mäori Appellate Court for decision. Section 6A(6) provided that any such decision of the Mäori Appellate Court "shall be binding on the Tribunal". The tribunal hearing the Ngäi Tahu claims had referred the issue of Ngäi Tahu's boundary to the Mäori Appellate Court, which had issued its decision in 1990. His Honour held that the reference to "the Tribunal" meant that only the Tribunal constituted to hear the particular case was bound. Other tribunals, "even if similarly constituted in other cases", were not bound.

McGechan J then considered the decision of the Court of Appeal in Ngäti Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 (see Mäori LR May 2000 p3), in which Ngäti Apa had sought judicial review of the Mäori Appellate Court's 1990 decision relating to Ngäi Tahu's boundaries.

After reviewing the separate Court of Appeal judgments, McGechan J concluded:

"Clearly, the Chief Justice, and Blanchard and Tipping JJ were satisfied that the Runanga Act and the Settlement Act did not prevent challenge to the conclusion reached by the Mäori Appellate Court that Ngäi Tahu held sole ownership within the relevant takiwä. The definition in s5 of the Runanga Act, the apology and settlement provisions of the Settlement Act, and the statutory bars created in the Settlement Act including amendment of the Treaty of Waitangi Act were not construed as so operating. The only limitation was upon setting aside that order, in view of its incorporation within the legislation (the Chief Justice did not recognise even that). Similarly, the order, despite the legislative setting, did not prevent the Ngäti Apa claim to the Tribunal based in part upon assertions of entitlements to land within the Ngäi Tahu takiwä, or remove the jurisdiction of the Tribunal to hear that claim. The conclusions reached by Keith J are with respect somewhat more opaque, but a sufficient majority is constituted without that addition."

McGechan J also observed that the Court of Appeal declined to strike out a pleading that Ngäti Apa's claim to the Waitangi Tribunal was valid and that the Waitangi Tribunal had jurisdiction to hear and determine it. However, if the Mäori Appellate Court order, Deed of Settlement, and associated legislation operated as a bar to Waitangi Tribunal jurisdiction, the Court of Appeal would have had to have struck it out.

Accordingly, both on his own approach and in line with the decision of the Court of Appeal in Ngäti Apa, McGechan J found that Ngäi Tahu's causes of action as to jurisdiction failed.

The Waitangi Tribunal's standing decision

Ngäi Tahu mounted the following causes of action in relation to the Waitangi Tribunal's standing decision, some of which (His Honour observed) were more properly matters of procedure.

(1) The tribunal had said that it would consider the jurisdiction question on an issue by issue basis as the inquiry progressed and when it had the full evidential background, but the procedure set out in its standing decision did not provide for such consideration. Nor did the tribunal require the Te Tau Ihu claimants to particularise their claims sufficiently.

(2) The tribunal had made an error in law in declining to make a "blanket" decision on Ngäi Tahu's rights to be heard and instead directed that rights of hearing be determined on a case by case and issue by issue basis.

(3) The tribunal's finding that Ngäi Tahu had provided insufficient evidence to demonstrate that it met the "interested person" status under s4A Commissions of Inquiry Act 1908 was irrational in a Wednesbury sense.

(4) If the tribunal did recognise that Ngäi Tahu had a right to be heard in the Te Tau Ihu inquiry, the procedure it had set out would not give Ngäi Tahu a fair opportunity to be heard. The procedure was, therefore, a breach of natural justice and was unreasonable in the Wednesbury sense.

McGechan J dismissed all causes of action except that alleging that the tribunal's procedure gave rise to a breach of natural justice. His Honour had no doubt that Ngäi Tahu was entitled to be heard under s4A(1) of the Commissions of Inquiry Act 1908 in relation to any Te Tau Ihu iwi claims that asserted an interest within the Ngäi Tahu takiwä. "It is not a question of whether Ngäi Tahu is the tangata whenua and holds the rangatiratanga." Ngäi Tahu had a tenable claim to that status and therefore had an interest in the inquiry apart from interests "in common with the public". Ngäi Tahu had "a special interest in maintaining its claim to that status against any conflicting claims mounted by others - here, Te Tau Ihu iwi." However, Ngäi Tahu's right to be heard was provisional, depending upon what claimants advanced in their claims. The tribunal had not decided that Ngäi Tahu did not have standing but that it should be considered on a case by case and issue by issue basis. There was no error of law or irrationality in that decision.

The tribunal had not failed to establish a proper procedure to deal with jurisdiction issues, or to require Te Tau Ihu to particularise their claims. In fact, the tribunal had issued a standing direction that required claimants to particularise their claims two months before their claims were to be heard. This fitted with usual practice and while earlier particularisation could be useful to Ngäi Tahu, it would be potentially unfair to claimants who were still researching their claims and who would not be heard for a considerable time. Nor should "Ngäi Tahu's interests in this regard ... drive Te Tau Ihu iwi into premature particularity, a position likely in the end to result in late amendment, confusion, and acrimony".

However, it was a breach of natural justice to divorce cross-examination by Ngäi Tahu for a period that could run for two or three years after a witness had given evidence in chief. "A right of cross-examination delayed as proposed is not a sufficiently useful right. It is insufficient from all perspectives, and the insufficiencies compound." For example, the tribunal would have had to have worked from a "cold transcript" that would not retain witnesses' inflections, emphasis, body language and demeanour. Witnesses would have had time to forget, rethink or be re-educated. Some witnesses may have struggle to recall details of, or the basis for, statements they had made earlier. Some witnesses might have died in the intervening period, or gone abroad. There was also a danger that the tribunal members could have unconsciously developed a fixed view based on the evidence-in-chief that they had already heard. Even if that had not occurred, the delay would have had the potential to create an appearance of its likelihood and that could have undermined the confidence of the parties and of the public in the process and in the tribunal.

Ngäi Tahu's claimed interests were under attack and "Ngäi Tahu should not be prioritised out of its entitlement to a fair hearing on a basis that Te Tau Ihu claims are not Ngäi Tahu claims, and Ngäi Tahu therefore is somehow secondary". While amounting to a breach of natural justice, however, the tribunal's decision was not irrational.

His Honour reflected upon the repercussions of his finding as to breach of natural justice through deferral of Ngäi Tahu cross-examination.

"If, as the Tribunal has stated, the finding of time for Ngäi Tahu to play a role can only be at the expense of time allocated (or which otherwise would be allocated) for later Te Tau Ihu iwi claims, then that is what will occur. It is highly regrettable, and if the Tribunal was adequately resourced it would not occur, but at least the hardship will fall more or less evenly upon both Te Tau Ihu iwi and upon Ngäi Tahu. Each carries the disadvantages arising from delay such as problems with witnesses, uncertainty, and ongoing expense. I do not diminish those difficulties, but it is better that each separate Te Tau Ihu claim (or possibly "generic" claim) proceed fairly, with any Ngäi Tahu cross-examination (and perhaps in some cases evidence) within a reasonable time, than that such proceed more rapidly but unfairly."

In a comment at the end of the judgment, McGechan J continued:

"The whole unhappy difficulty over this so-called "standing" aspect - really, a matter of procedure - arises from the inadequacy of the Tribunal's resources. Quite simply, the Tribunal needs sufficient personnel, and sufficient funding, to provide hearing time within an acceptable and just timeframe. Let no-one think this Court has solved problems with this decision. It has not. It has organised within the problem, but the only solution involves substantially increased delays which will cause deep concern.

The Waitangi Tribunal was set up as an avenue for exploration of complaints of breach of the Treaty, and recommendations for remedial action where such breaches were found to have occurred. Systemic delays on the present scale prevent proper discharge of that function. The solutions lie with Government and ultimately with Parliament. They are political matters. There are also Treaty dimensions. The Treaty does not envisage a Treasury with a bottomless purse, and it is for the Crown to decide upon allocation of resources given competing needs. In that light I exercise restraint. It is not for this Court to say more resources must be allocated, above other needs, but there should be no mistake. This case illustrates the Tribunal is not being resourced to operate, and is not able to operate, in a satisfactory manner. I draw that to the attention of those who carry the responsibility."

REPORTS & ARTICLES

Mäori Custom and Values in New Zealand Law
Law Commission Study Paper 9. March 2001

Scope of the paper
In making recommendations for the reform and development of the laws of New Zealand the Law Commission is required to "take into account Te Ao Mäori (the Mäori Dimension) …" (s5(2)(a) Law Commission Act 1985).

In 1994 the then Chief Judge of the Mäori Land Court prepared a draft paper on custom law. He was concerned that there was no text or study which "casts our knowledge of Mäori custom in jurisprudential terms." And made the point that Mäori Land Court judges did not necessarily have specialist knowledge of Mäori custom, but rather of the complex of laws which replaced Mäori custom.

Spurred on by those concerns, the Law Commission began a project to publish a concise document for judges and decision makers that answered the question "What is Mäori Custom law?" That task was abandoned however as too broad and the development of Mäori custom too much connected with developments in the courts to be separated out.

This study paper aims to:

o Consider how Mäori custom and values impact on the current law.

o Consider ideas for future law reform projects by the commission to give effect to Mäori values in the laws of New Zealand.

Definitions
The paper deals with "The body of rules developed by indigenous societies to govern themselves" also termed "indigenous custom law", as distinct from the technical term "custom law", which means customs and laws derived from England and indigenous laws and customs which have met particular legal tests and are enforceable in the courts.

This "indigenous custom law" is called in NZ "Mäori custom law". A Mäori term which is nearly equivalent is "tikanga" or "Tikanga Mäori".

This law is dynamic. That is, it is not frozen in history, but adapts to new circumstances. Adherence to principles, and not rules, while maintaining cultural integrity, is important.

This law is dynamic. That is, it is not frozen in history, but adapts to new circumstances. Adherence to principles, and not rules, while maintaining cultural integrity, is important.

However, flexibility "cannot be so great as to allow a proposition to be advanced as Mäori custom law where it is in conflict with basic principles handed down from the ancestors." But nor can certainty be so paramount that past understandings of tikanga Mäori are adopted, in a similar way to common law precedents "without continually being tested by the practical jurisprudence of Mäori communal decision-making." Decision-makers should bear in mind that the "vitality of custom law is being continuously replenished within the fora of te ao Mäori."

Universal standards are also relevant, in that there is a "workable compromise between the … extremes of universalism and cultural relativity that could allow the development of the framework that recognises cultural diversity while encouraging a high level of human rights protection."

Common law treatment of indigenous custom
English law recognizes customs practiced since time immemorial and unchanged over that time. This rule allows for the recognition of indigenous custom by English law but with the difference that change over time is allowed for.

There is potential for the common law to be flexible in the interpretation of custom. For example; Mullick v Mullick (1925) LR 52 Ind App 245, 250 concerning legal personality of a Hindu idol and Le Tagaloa Pita v AG (CA7/95 Western Samoa, 18 December 1995) concerning the matai system in Samoa.

The common law doctrine of aboriginal rights appearing in Canada, Australia and NZ cases is an expression of this flexibility. The basic premise of the doctrine is that a change in sovereignty does not displace pre-existing property rights.

Mäori custom law defined
Mäori custom law and tikanga have been various defined. It is essentially values, principles or norms which determine appropriate conduct, the Mäori way of doing things, and ways of doing and thinking held by Mäori to be just and correct. They are established by precedents and validated by more than one generation, and vary in their scale, as rules of public through to private application. Tikanga includes measures to deal with breaches causing serious upset in the community, but the rules are more advisory and there are no punitive measures for breaching them. "Tikanga Mäori comprises a spectrum with values at one end and rules at the other, but with values informing the whole range. It includes the values themselves and does not differentiate between sanction-backed laws and advice concerning non-sanctioned customs."

Since aspects of tikanga might be subject to a particular interpretation according to circumstances but re-interpreted in the light of different circumstances "tikanga Mäori as a social system was traditionally pragmatic and open-ended and it remains so today." By understanding the underlying values, order can be discerned and tikanga appreciated.

Legal positivism which is dominant in the English legal system sees law as linked to the state. However, anthropologists recognize that all societies have a set of principles or law even if it is not generated by a central authority. Early European commentators had no difficulty is referring to Mäori customs which they observed as law.

Colonial treatment of Mäori custom law
For largely pragmatic reasons the Crown in the early years of settlement sought to extend British authority using Mäori law.

o The Native Exemption Ordinance 1844 provided that the government would intervene in Mäori v Mäori crimes only at Mäori request, Mäori convicted of theft would pay compensation rather than be imprisoned, and that they should not be imprisoned for civil matters.

o The Resident Magistrates Courts Ordinance 1846 and Resident Magistrates Act 1867. The latter allowed Mäori assessors to be appointed to assist in inter Mäori disputes. This was abolished without explanation in 1893.

o NZ Constitution Act 1852. Section 71 provided that the laws and customs of Mäori would apply between Mäori in districts set aside by Order in Council. however, no such orders were ever made.

Any such recognition was only ever intended to be temporary in any event. The means by which Mäori custom was attacked were varied, and should make Mäori cautious about efforts to recognize it today. These means included:

o Express denial that Mäori custom law existed: eg Wi Parata v Bishop of Wellington (1877) 3 Jur (NS) 72.

o Overt suppression: eg the Tohunga Suppression Act 1907.

o Assimilation into state law followed by express extinguishments: eg Crown purchase methods.

o Assimilation by recognition of custom then re-interpretation leading to extinguishments: eg native land legislation, which provided that the Native Land Court recognize the customary interest, then convert it to individual titles, thus destroying it.

o Alternation of social structures through which custom law was exercised: eg individualization of title allowing individuals to act without reference to the group.

o Removal of resources to which Mäori custom law applied: eg fisheries.

Tikanga today
Tikanga Mäori reflects ideals - just as NZ law is reflected in the values in laws, not in behaviour recorded by the courts. Evidence of contrary conduct is not evidence that values do not apply. Also, the way a particular tikanga is practiced (te whakahaere) is not necessarily the ideal manifestation of the tikanga (te mätauranga). There are regional variations in tikanga. Changes to tikanga brought about by contact with settlers rarely produced changes to the "fundamental value system".

Key values underlying tikanga are:

Whänaungatanga
This is the most pervasive underlying value. It stresses that relationships are central to Mäori thinking, both between people, and with the physical and spiritual world. Whakapapa or genealogy is the "glue" that identifies the nature of the relationships between all things. Tikanga Mäori "emphasised the responsibility owed by the individual to the collective. No rights enured if the mutuality and reciprocity responsibilities were not understood and fulfilled." This applied particularly to the relationship with ancestral land (evidenced by whakatauki identifying people with land) and transactions involving those lands. Transfers maintained relationships between the parties involved.

The flip side of the duties owed to the collective was the responsibility the collective had to care for the individual. "Muru" incorporated the idea that the wrongful actions of individuals could be paid for by seeking compensation from the collective.

Whänaungatanga also means that the lines are blurred between groups and between humans and the physical world, the land, sea etc eg Rangi and Papa.

Mana
"[I]s at the heart of historical and modern Mäori concepts of leadership." It is political power which may be inherited (whakapapa) and/or gained through personal achievements. The former (mana tüpuna) is still evident in Mäori society but does not inevitably prevail. The latter (mana tangata) is traditionally very important and probably has increased importance in modern times. The two concepts mean that accountability to the group is important, and that there is in fact little discretion for leaders over important decisions - which must be put to and approved by the collective. Leaders must rely on oratorical skills to get their preferred result.

Mana is not confined to men - as evidenced by the concept of "mana wähine". The women who signed the Treaty of Waitangi being an example.

The third aspect of mana, "mana atua" (god given mana) emphasizes the tapu features of leadership and highlights the respect owed by the collective to leaders, including ritual and religious specialists such tohunga. "… it is inherent in the triadic nature of mana itself that traditional and contemporary Mäori leadership is both pragmatically consensual and spiritual at the same time. … "Ranga" is a word which means to weave. "Tira" is a word which denotes a group of people traveling. Thus the rangatira is considered to be a weaver of the people."

Tapu
This quality attaches to all things and requires respect in differing degrees. For example, respect for the human body, and in particular for some high ranking people, but also some places eg marae and wharenui (meeting houses).

The tikanga of tapu can be seen as "a code for social conduct based essentially on keeping safe and avoiding risk". It also has the political purpose of preserving respect for leaders. Tapu is linked to wairua (spirituality). It is also linked to noa, its complementary opposite. Where tapu is about sacredness and risk, noa is about secularity and safety. As Mason Durie has put it:

"Explanations of tapu as primarily religious in nature appeal to those who seek spiritual answers to societal conduct. The more temporal view holds sway where survival and health maintenance are seen as the main challenges for tribal societies. But common to both views is the acceptance of tapu as [a code] for social conduct and adaptation to the environment."

Utu
Has a wider meaning than revenge for wrong doing. Tau utuutu or reciprocity is the broader concept. It aims at the maintenance of relationships by ongoing reciprocity - like is not necessarily given for like, as shown by traditional inter-hapü trading or gift exchange (tuku). Aroha is a key related concept, traditionally referring to displays of generosity to maintain relationships and place the giver in a more powerful position.

Kaitiakitanga
Denotes the obligation of stewardship and protection. It is "an idea which was implicit in Mäori thinking but which Mäori had hitherto taken for granted." Mana, tapu and mauri are key elements of kaitiakitanga, which is most often applied today to the obligation on whänau, hapü and iwi to "protect the spiritual wellbeing of the natural resources within their mana". The rähui or prohibitions placed over sites to restrict entry arise from kaitiakitanga, as do traditional rules for conduct when using a resource such as fish.

The report identifies 3 concepts related to these underlying values of tikanga.

Tikanga tangata or social organisation
This flows from the value of whänaungatanga and consists of whänau - the extended family, hapü - the larger village community and iwi - regionally based kin group, tribe. There is also waka - tribal confederations based around canoes which brought the first Mäori settlers, and käinga - social units not based entirely on whakapapa or kin links and held together by rules to ensure survival of the group.

"At no stage, from the period of first arrival in New Zealand through to the post-contact period, could Mäori social structure be accurately described as a simple pyramid of whänau, hapü, iwi, waka in ascending order. Rather, traditional Mäori society and post-contact Mäori society were characterised by a high level of variation in kin units and aggregations."

Tikanga rangatira or leadership
There were several kinds of leaders or rangatira:

Rangatira - the most significant leaders in community affairs and represent the hapü and iwi to outsiders,

Kaumätua - either koroua (men) or kiua (women) usually elderly, but the position has more to do with social seniority and wisdom

Ariki - the most senior ranking blood representatives of a collection of hapü, an iwi or collection of iwi. But not institutionalised as in other parts of the Pacific.

Tohunga/pükenga - specialists in crafts and/or fields of knowledge.

Mäori authority was neither centralised nor institutionalised, but "basically democratic" and the existence of the concept of mana and its links with authority makes this evident.

Where there is present day confusion about which groups should be approached over issues such as resource management, the arrangements around local marae are a good first place to start.

Tikanga whenua: land
Connections with land are reflected in all five underlying values of tikanga. Whänaungatanga includes relationships with land, mana the power and authority derived from land, utu includes reciprocal relationships with land, tapu includes the sacred character of land, and kaitiakitanga the obligation to protect it.

The courts and custom
The report goes on to consider court decisions which have explicitly considered Mäori custom including:

o Public Trustee v Loasby (1908) 27 NZLR 801 - regarding customs associated with tangi (funerals).

o Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 - customary fishing rights.

o Baldick v Jackson (1911) 13 GLR 398 - customary whaling rights

o Auckland District Mäori Council v Manukau Harbour Maritime Planning Authority (1983) 9 NZTPA 165 - Mäori values in maritime planning.

o Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 and ECNZ v Manawatu Regional Council (W70/90) - Mäori values in water conservation.

These cases indicate that a flexible approach has been taken by the courts to receiving and formally considering evidence of Mäori custom. The courts have indicated that they will take Mäori custom into account without statutory direction (Tikouma 3B2 v Ruha - see (1975) 14 Waikato-Maniapoto ACMB 362, Tai Whati p171).

More recently, concepts such as kaitiakitanga and concern for ancestral land have been recognised in planning law (cases decided under the RMA 1991 and Royal Forest & Bird Protection Society v Habgood 12 NZTPA 76). Mäori custom has been recognised in a number of areas concerned with the whänau:

o Hineiti Rirerire Arani v Public Trustee (1919) [1840-1932] NZPCC 1 - customary adoption or whangai recognised (although current law does not recognise such adoptions as valid for state purposes).

o Rikihana v Parson (1986) 4 NZFLR 289 and Makiri v Roxburgh (1988) 5 NZLFR 673 - Mäori culture recognised in custody disputes.

o B v Director-General of Social Welfare (1997) AP71/96.

In several cases concerning whänau, the courts have been uncomfortable about the absence of evidence of the Mäori customs and issues involved eg Re Stubbing (1988) 4 FRNZ 392 (family protection) and Re Wakarua (1988) 4 FRNZ 650 (adoption).

Despite this, the study paper concludes that, in general:

"The courts are moving away from the view that the legal process must involve total submission to and compliance with formal court procedures derived from an occidental culture. This understanding contains the seeds of an evolving jurisprudence, which draws on both British law and Mäori custom law, and which has the potential to incorporate solutions based on Mäori world views."

The Mäori Land Court
The report looks briefly at the Mäori Land Court and notes that it is not a court of Mäori custom, but can in particular situations apply Mäori custom directly. Namely:

o In determining tikanga issues under ss29 and 30 Te Ture Whenua Maori Act 1993 .

o In considering issues of custom referred to it by the Waitangi Tribunal under s6A(1) Treaty of Waitangi Act 1975.

o When receiving cases stated from the High Court on matters of custom (s61/TTWM Act 1993) - although this procedure has never been utilised.

The paper notes that the Law Commission is working on succession and the better incorporation of Mäori custom into succession law. The general consensus seems to be that the best approach to change is to take proper account of custom, while considering how both custom and the wider society have changed their views over the decades.

The Treaty of Waitangi
The report examines briefly the Treaty of Waitangi and the work of the Waitangi Tribunal, on the basis that "Mäori custom law is a source of Treaty law". It argues that from 1975 to 2000 fourteen statutes have included the phrase the "principles of the Treaty of Waitangi" and that where this provision stands alone it has generally led to uncertainty. Where the provision is accompanied by more specific provisions which "flesh out" the principles, the more specific provisions are generally relied upon. This raises the question of why the general "principles" provision is required.

Future work
The report outlines a future work programme for the Law Commission to give effect to Mäori values in the laws of New Zealand.

Succession
The Commission's succession project has identified three possible ways forward:

o Continue with Päkehä based rules and procedures which Mäori use to reach solutions in accord with tikanga.

o Base a dispute resolution process solely on tikanga values. If an issue arose in a Päkehä court, an iwi or hapü representative would simply advise the court of the outcome of the tikanga process.

o Päkehä law to recognise the autonomy of Mäori customs, and establish procedures for an iwi decision making process. This is the commission's preferred approach.

After Settlement Assets Project
There is a need to devise structures to ensure the success of settlements of historic grievances. In particular, there is a need to "facilitate the efficient administration of the new class of kin-owed assets." The need has been illustrated in cases such as:

o Greensill v Tainui Mäori Trust Board (1995 M117/95) - Tainui settlement.

o Te Runanga o Muriwhenua v Neho (1998 CP43/98) - Muriwhenua proposed settlement.

o Kai Tohu Tohu o Puketapu Hapü Inc v AG (1999 CP344/97) and Te Runanga o Te Ati Awa v Te Ati Awa Iwi Authority (1999 CP13/99) - Taranaki proposed settlements.

o Ngäti Apa ki Te Waipounamu Trust v Queen (2000 CA154/99) - Ngäi Tahu settlement.

o Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission ([2000] 1 NZLR 285 (HC) & 331 (CA) - fisheries settlement.

The project aims to assess the need for a separate jurisdiction to resolve disputes where tribal organisations manage assets on behalf of groups, determine when the jurisdiction would be exercised and by whom, and propose the legislative framework for the purpose.

The project raises major issues such as:

o How to strike the balance between the management of group assets to maximise economic benefits vs the rights of individuals to express their concerns about that management?

o How far English law principles of equity can assist in this area?

o Do public law duties exist in respect of the management of assets secured by Treaty settlements?

o How can Mäori customary values such as whänaungatanga, manaakitanga and ahi kä be taken into account in the management of settlement assets?

The commission envisages that, after "splicing" together elements of trust, equity, public and private law, administrative law and custom law, "it may be that an indigenous form of public law is developed which draws on the best of English legal traditions and Mäori values." The aim is to develop law which will provide principles to guide the exercise of powers "both by and within Mäori socio-political kin groups."

Commentary: as the above summary indicates, this study paper ranges over many issues and none in very much depth. Nevertheless, it is useful to have in chapter 3 an authoritative summary of key values underlying Mäori custom in its contemporary application.