August 2012 Contents

Editorial

Tom Bennion on the Māori Law Review - re-launching the waka

Court of Appeal

Transferring Māori freehold land by will to persons “related by blood” - Kameta v Nicholas [2012] NZCA 350

Māori Land Court

 

Partition - insufficient evidence to assess whether requirements met - Wilson - Waiwakaiho H2B (2012) 288 Aotea MB 63

Resignation of trustees and appointment of independent trustee - Rātima v Sullivan - Tataraakina C Trust  (2012) 18 Takitimu MB 75

Waitangi Tribunal

Māori claims to rights over water – Waitangi Tribunal recommends halt to partial privatisation of State-owned power companies (Wai 2358, 24 August 2012)

Settlement negotiations measured against the Treaty of Waitangi - The Port Nicholson Block Urgency Report (Wai 2235, 2012)

Māori claims to rights over water - Tribunal will endeavour to produce an interim report on water and geothermal issues by 24 August 2012 (Wai 2538, #2.7.3)

Legislation

Immunity from Seizure for Cultural Objects on Loan - Discussion Paper

Print Version

Download the Māori Law Review August 2012 (512 KB PDF).

 


Editorial – Tom Bennion on the Māori Law Review – re-launching the waka

Tēnā koutou kātoa. Ka nui te mihi ki ngā roia ki a koutou hoki e mahi ana i te ao ture.

The first issue of the Māori Law Review was posted from my home office in Brooklyn in December 1993. At the time, the internet was in its infancy and there was no regular reporting of Māori Land and Appellate Court judgments, nor of Waitangi Tribunal reports.

The Review was intended as a regular updating service following on from then Chief Judge, now Sir Edward Taihakurei Durie's earlier work in the Tai Whati series of casenotes. But the Review had an additional and broader aim, to chart the ways in which law in Aotearoa New Zealand is distinctive because of its Māori component. This was an attempt to record the development of our bicultural legal system if you like.

That first issue attracted 50 subscribers and it has grown from there.

In the early years it was sometimes a struggle to find enough items to fill a month.

The Review has moved with the times. It was on occasion even ahead of them. I have an old newspaper item announcing that the Māori Law Review was the first legal publication in New Zealand to be put on the internet.

But as anyone who runs a regular publication will know, it can be a grinding task. Running a busy law practice and the arrival of three children has meant slippage in recent years.

I was therefore grateful for the interest shown in revitalising the Review by Craig Linkhorn and Paul Meredith and Carwyn Jones from Victoria University of Wellington. They have assembled a team of contributors and editors to spread the load. My role thankfully drops back to part time contributor and consultant editor. As you will have seen already, they have done an excellent job in updating the website and getting the Review back on track. We are working together to get the remaining back issues completed and posted.

The Review is the regular reporter of judgments of the Māori Land and Appellate Courts and  Waitangi Tribunal reports. In addition there is a range of decisions from other courts and tribunals as well as legislation all affecting Māori. The job of the Review remains as important as ever.

However, since the earlier days of the internet, there is now a big change in the availability of decisions of courts and tribunal. This allows the Review to become a valuable annotator of decisions and its expert contributors guides to their overall relevance.

The Review’s new website is a great asset. The instant access to and updating of legal and other information on the internet is changing law in profound ways, some which we have yet to comprehend. It was with interest that I noted that Supreme Court Justice William Young in his recent judgment in Paki v Attorney-General [2012] NZSC 50 used the online database of historic newspapers to reach conclusions about the intent of a 1903 Act.

I hope for the future that the Review will be looked on as a valuable recorder of changing law in a very important period of its development. I think that the revived Review is an essential online tool for practitioners in this area, but also policy makers, academics and the many organisations, Māori and Pākehā who have to grapple with the bicultural aspects of our legal system.

Transferring Māori freehold land by will to persons “related by blood”

Kameta v Nicholas

Court of Appeal [2012] NZCA 350

3 August 2012

A will maker can dispose of a beneficial interest in Māori freehold land to specified classes of people only. One is persons who are both related by blood to the testator and a member of the hapū associated with the land (s 108(2) Te Ture Whenua Māori Act 1993). The Court of Appeal held that although it is a question of degree, a whakapapa connection within the hapū associated with the land satisfies the statutory requirement to be “related by blood” to a will maker.

The Māori Appellate Court’s collective knowledge of tikanga and specialist expertise means it enjoys a particular advantage in determining questions of fact that the Court of Appeal will respect.

Download Kameta v Nicholas [2012] NZCA 350 here (217 KB PDF). read more

Partition – insufficient evidence to assess whether requirements met – Wilson

Wilson - Waiwakaiho H2B

Māori Land Court (2012) 288 Aotea MB 63 (28 AOT 63)

3 August 2012

Application for partition order. Application dismissed where there was insufficient evidence for the Court to determine whether the applicant had satisfied the requirements necessary for an order to be made.

Download Wilson - Waiwakaiho H2B (186 KB PDF) here. read more

Resignation of trustees and appointment of independent trustee

Rātima v Sullivan - Tataraakina C Trust

Māori Land Court (2012) 15 Takitimu MB 57 (15 TKT 15) and 18 Takitimu MB 75 (18 TKT 75)

13 April 2012 (interim injunction) and 19 July 2012 (interim judgment)

In April 2012 the Court issued an interim injunction restraining the trustees of Tataraakina C Trust from taking any further steps in relation to the appointment of an Executive Officer or Project Manager and Office Manager until further orders of the Court.

Following further hearings a number of consent orders were made and the interim injunction continued.  These orders included the trustees resigning and being appointed advisory trustees to a newly appointed independent responsible trustee.

Download Rātima v Sullivan - Tataraakina C Trust (2012) 18 Takitimu MB 75 (162 KB PDF) here. read more

Immunity from Seizure for Cultural Objects on Loan – Discussion Paper

Immunity from Seizure for Cultural Objects on Loan - Discussion Paper

Ministry for Culture and Heritage (2012)

The Ministry for Culture and Heritage has published a discussion paper inviting submissions on whether New Zealand should introduce legislation to provide immunity from seizure for cultural objects on loan.  Such legislation could have significant implications for Māori and also brings into play a number of issues relating to cultural artifacts and the repatriation of taonga that were addressed by the Waitangi Tribunal in its 2011 report Ko Aotearoa Tēnei (A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity).

The Ministry has invited submissions on the issues raised in the discussion paper by Monday 24 September 2012.

Download the discussion paper here (206 KB PDF). read more

Māori claims to rights over water – Waitangi Tribunal recommends halt to partial privatisation of State-owned power companies

The Interim Report on the National Freshwater and Geothermal Resources Claim

Waitangi Tribunal (Wai 2358, 24 August 2012)

The Waitangi Tribunal has found that Māori have residual proprietary rights in bodies of water.  In an interim report, the Tribunal found that the Crown will be in breach of Treaty principles if it proceeds with the sale of shares in State-owned power generating companies (the Mixed Ownership Model companies) without first creating a mechanism to preserve its ability to recognize Māori rights.  The Tribunal recommended that the Crown urgently convene a national hui to determine a way forward and that the sale of shares in the Mixed Ownership Model companies be delayed while the Treaty partners negotiate a solution.

Download The Interim Report on the National Freshwater and Geothermal Resources Claim here (4.81 MB PDF). read more

Settlement negotiations measured against the Treaty of Waitangi

The Port Nicholson Block Urgency Report

Waitangi Tribunal (Wai 2235, 2012)

The Waitangi Tribunal’s Port Nicholson Block Urgency Report is the outcome of an urgent Waitangi Tribunal hearing in June 2012 into the claim that the Crown had breached undertakings made during settlement negotiations with Taranaki Whānui interests about the scope of redress that would be offered to other groups.

The claim was partly upheld and partly not upheld.  The Tribunal did not uphold the claim by Taranaki Whānui that they agreed to forego one commercial property on the Crown’s express undertaking that no other property would be offered to Ngāti Toa anywhere in the entire Port Nicholson Block at Wellington.  However, the Tribunal did find that the Crown had given Taranaki Whānui an undertaking that, in exchange for agreeing to the release of that property, no other property would be offered to Ngāti Toa in the Wellington central business district.  The Tribunal found the Crown broke that undertaking and in doing so breached Treaty principles.

This report contains a number of observations that could have significant implications for future settlements.  The Tribunal determined that it was entitled to examine pre-settlement negotiations and subsequent actions and omissions of the Crown, despite the existence of an “entire agreement” clause in the deed of settlement, a standard provision in Treaty settlements.  This determination was based on the Tribunal’s reasoning that neither the Crown nor settling groups can contract out of their Treaty obligations.

Download The Port Nicholson Block Urgency Report here (1.2 MB PDF). read more

Māori claims to rights over water – Tribunal will endeavour to produce an interim report on water and geothermal issues by 24 August 2012

National Fresh Water and Geothermal Resource Inquiry

Memorandum-Directions responding to Crown request for report by 24 August 2012

Waitangi Tribunal (Wai 2538, #2.7.3)

Responding to a Crown request for an early report, the Waitangi Tribunal has indicated that it will endeavour to produce an interim report by 24 August 2012 on stage 1 of its National Fresh Water and Geothermal Resource Inquiry. The Tribunal’s response was critical of the way the Crown raised this issue. 

Download Wai 2538, #2.7.3 here (370 KB PDF). read more