February 2015 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2014 – Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land

Sir Edward Taihakurei Durie student essay competition 2014

Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land

The Māori Law Review is pleased to publish Anna Brenstrum's prize winning essay on the dispute between Patricia Grace and the New Zealand Transport Agency (NZTA) over the compulsory acquisition of her ancestral land.

Foreword by Carwyn Jones, Māori Law Review co-editor

We are very pleased to publish in this edition of the Māori Law Review the winning entry from the 2014 Sir Edward Taihakurei Durie Student Essay Competition. The competition is held annually and sponsored by the Māori Law Review. It asks students to write on an important legal development from the previous year affecting Māori and is judged by a panel of the Māori Law Review’s consulting editors. This is the third year that the competition has been run and the standard of entries remains high.

The winning entry for 2014 is entitled ‘Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land’ and was written by Anna Brenstrum.

Ms Brenstrum is an undergraduate student at the University of Otago. She is currently in her fourth year of study towards a Bachelor of Laws with Honours and a Bachelor of Arts majoring in History. Anna’s interest in Māori legal issues was spurred by a Māori Land Law course taught by Associate Professor Jacinta Ruru.  An essay on the land disputes between Patricia Grace and the New Zealand Transport Agency that Ms Brenstrum wrote for that course provided the basis for the essay she entered in the competition.

Ms Brenstrum’s essay addresses the application of public works legislation in the context of two cases that dealt with the issues relating to Ms Grace’s land in parallel proceedings: Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268 in the Māori Land Court; and Grace v Minister of Land Information [2014] NZEnvC 82 in the Environment Court. As discussed in Ms Brenstrum’s essay, these cases are significant because they show the relationship between Te Ture Whenua Māori Act 1993 and the Public Works Act 1981 and also reinforces the importance of the retention of land as a fundamental principle of Te Ture Whenua Māori Act 1993.

Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land

Overview

Last year, the dispute between Patricia Grace and the New Zealand Transport Agency (NZTA) over the compulsory acquisition of her ancestral land on the Kapiti Coast captured the attention of legal experts and the public alike.

In March 2014 the Māori Land Court recommended that a Māori reservation be created over Grace’s Māori freehold land despite opposition to the application from the NZTA. In April 2014, the Environment Court made an order in favour of Grace stating that the acquisition of her land by the NZTA for the construction of the Mackays to Peka Peka expressway would not be “fair, sound and reasonably necessary” as required by the Public Works Act 1981.[1]

These two cases represent an important development in the law relating to Māori freehold land because they demonstrate the importance of one of the primary principles in Te Ture Whenua Māori Act 1993 (Māori Land Act 1993) (TTWMA) – retention of land – being given effect to within a contentious situation where the land was arguably required for a road of national significance.  The cases are also interesting for showing the interplay between TTWMA and the Public Works Act and for highlighting a need for a reform of the Public Works Act to better protect the retention of Māori freehold land.

Discussion

1. Litigation

Grace v NZTA

In Grace v NZTA,[2] Chief Judge Isaac in the Māori Land Court made a recommendation to the Chief Executive of Te Puni Kōkiri to award Ms Grace’s land the status of Māori reservation under s 338 of the TTWMA. A Gazette notice was subsequently issued on 10 April 2014 declaring that Ms Grace’s block was “set apart as a Māori reservation for the benefit of the descendants of Wiremu Parata Te Kakakura”.[3]  As a reservation, the land has now been afforded the protection of being “inalienable” to the Crown under s 338(11).

As part of this decision, the Court had to consider whether Ms Grace’s land fulfilled the statutory requirements under s 338 of being a place of special “cultural, historic, or scenic interest”[4] or wāhi tapu, that is, “a place of special significance according to tikanga Māori”.[5]

The decision contains a detailed discussion of how an applicant can establish a Māori reservation.  Counsel for Ms Grace used the five-question framework established in Gibbs v Te Runanga O Ngati Tama.[6]  Chief Judge Isaac allowed Ms Grace’s application to be made as both a place of cultural or historical significance and as a wāhi tapu. This approach gives applicants two opportunities to show that their land should be granted reservation status and is the correct approach based on the language of TTWMA. According to Chief Judge Isaac, section 338 does not specify that an application must be made either under s 338(1)(a) or (b). The use of the word “or”[7] between subsections (a) and (b) implies than an application need not satisfy both requirements but does not exclude an application from fulfilling both.  On this point, Chief Judge Isaac declined to follow the obiter comment (an observation made in passing) in Gibbs that an application under s 338 must be made exclusively for one of the two categories.

Chief Judge Isaac also took a broad approach in considering what was sufficient to constitute ‘cultural or historical significance’. The NZTA argued that tangible evidence of historical importance such as archaeological artifacts was necessary and that cultural/spiritual connections should be afforded little weight. However, Chief Judge Isaac held (at [102]) that:

[W]hen considering an application for a Māori reservation, all evidence needs to be considered. The physical evidence needs to be coupled with the intangible, spiritual and cultural evidence of the tangata whenua and people directly associated with the land.

To do otherwise would be to disregard tikanga Māori. The Court held that the entirety of the block of land was of cultural and historical significance because of the strong whakapapa connections Ms Grace and others had to the land. It was the site of the Tuku Rakau settlement, an important site for Te Ati Awa people from the early 1800s.[8]  Significantly, Ms Grace’s land comprises the small remnant of lands of Wi Parata (Te Kakakura), one of New Zealand’s first Māori politicians. Chief Judge Isaac placed considerable weight on promoting the purpose of “retention” of land outlined in sections 2 and 17 of the TTWMA.

In Gibbs a major factor in the denial of the family’s application for Māori reservation status was the lack of communal purpose for the land. The Court there held that the beneficiaries of the proposed reservation would be largely limited to the direct family of the applicants. In that case, Judge Harvey ruled that a Māori reservation could not be declared for the sole benefit of keeping the land in the family.  In Ms Grace’s case the NZTA argued that - as in Gibbs – Ms Grace had not shown a clear communal purpose to support making the land a reservation. However, Chief Judge Isaac adopted a broad approach to this issue as well. Ms Grace’s proposal to act as caretaker for the land for the benefit of all the descendants of Wi Parata and the possibility of establishing a retreat on the land appeared to be enough to satisfy the requirement of a communal purpose. This approach reiterates Chief Judge Isaac’s emphasis on retention of Māori land in accordance with TTWMA.

This is an important case for understanding the creation of Māori reservations.

Grace v Minister of Land Information

In Grace v Minister of Land Information[9] the Environment Court dealt with Ms Grace’s notice of objection under s 23 of the Public Works Act 1981 (PWA) to the compulsory acquisition of her land.

On 6 June 2013 Ms Grace was issued with a notice of intention to acquire the land by the Minister for Land Information. The notice stated that part of her land (983m2) was required for the construction of the MacKays to Peka Peka Expressway. The Environment Court had to consider whether, under section 24(7)(d) of the PWA, the acquisition of the land would be “fair, sound and reasonably necessary” to achieve the Minister’s objectives.

The Court placed considerable weight on the importance of protecting Māori land interests, ruling that it would not be “fair, sound and reasonably necessary” to take the land for an expressway because the NZTA had not satisfactorily investigated other options. The Court followed the statement of Lord Cooke in McGuire v Hastings District Council[10] that even if the alternative was “not ideal”[11] it should be preferred if it avoided interfering with Māori land rights. Emphasis was placed on the fact that the land comprises the remains of Wi Parata’s land and on Ms Grace’s whakapapa to the land.

The decision of the Environment Court in Grace v Minister of Land Information differs from the Privy Council judgment in McGuire v Hastings District Council delivered in 2001.[12] In McGuire, protection of Māori land interests by the Māori Land Court was thwarted when the Privy Council decided that the Māori Land Court did not have jurisdiction to prevent the designation of land for roading purposes under the Resource Management Act 1991 (RMA). In McGuire the Court had to deal with the interface between s 19(1)(a) of the TTWMA – which gives the Māori Land Court jurisdiction to grant an injunction against any actual or threatened trespass to Māori land – and s 168 of the RMA which gives local authorities the power to designate land for public works. The Privy Council held that, because the RMA is a comprehensive piece of legislation and contains provisions that deal with Māori land interests, Parliament would not have intended for the Māori Land Court to have jurisdiction over these issues.

Grace v Minister of Land Information is different because here the Environment Court was considering whether it was fair, sound and reasonably necessary for the Crown to take land against a context where the land had been declared a Māori reservation pursuant to a different process under s 338 TTWMA which made the land inalienable to the Crown.

2. History of Public Works Legislation

The recent successes of Patricia Grace in the Māori Land Court and in the Environment Court contrast starkly with the history of compulsory acquisitions of Māori land under Public Works legislation in New Zealand. This legislation was widely used to confiscate land from Māori to use for public purposes of benefit to society generally. Māori land was often preferred to European land for public works. The relevant legislation was developed in a complicated and confused manner. Māori land was seen as easier for taking authorities to target.[13] For example, the Native Lands Act 1865 removed past protections over Māori land and allowed five per cent of land to be taken for roading purposes.[14] It marked the beginning of a history of legislation that encouraged the compulsory acquisition of Māori land. Areas of importance to Māori such as urupā and places that were wāhi tapu were not afforded protection under legislation although places of importance to Europeans such as gardens were protected.[15]

This discriminatory legislation continued well into the 20th century. Under the Public Works Act 1928 proposed compulsory acquisitions of Māori land were not required to be published in a Gazette as was required for general land. This meant that Māori had even less opportunity to be informed about public works takings and exacerbated problems for Māori in terms of objecting to confiscations of land. Furthermore, ‘offer back’ provisions were not enforceable in regards to Māori land. Ward writes:[16]

Māori land was the prime target for takings and most often this was the result of Crown policies such as the fragmentation of Māori land title which allowed taking authorities to abandon the procedures routinely applied for general land, such as negotiation and consultation with owners.

Māori often did not receive the compensation they were entitled to because of the confusion surrounding processes. Local authorities took advantage of this. For example, the Waitangi Tribunal Report Wairarapa ki Tararua Report cites Bruce Stirling’s estimate that in the Wairarapa ki Tararua region 607 acres of Māori land was compulsorily acquired before 1900 and compensation was only paid in a few instances.[17]

In 1981 new legislation was passed which does little more to improve protection of Māori land interests. Section 41 of the PWA 1981 does though allow Māori land to be ‘offered back’ through the same procedure as general land. Where land is no longer required for a public work it may be sold back to the original owner at market price or at a lesser price if the public works owner (often a local authority) considers it reasonable to do so. However, often the land will have increased in value, possibly due to the public works that have taken place and former owners are often unable to afford to purchase the land. It is at the disposing authority’s discretion whether they choose to offer the land at a lesser price. Furthermore, there are no provisions in the PWA to discourage the compulsory acquisition of Māori land in the first place. The Treaty of Waitangi and its principles are not incorporated or referenced in the PWA.

The attempts of the NZTA to acquire Ms Grace’s land for roading purposes may be regarded as evidence of the continuing practice of Government agencies failing to adequately consider alternatives to taking Māori land for public works.  In Grace v Minister for Land Information the Court noted that there was an alternative route which would have avoided Ms Grace’s land but that there was no evidence of it being given any, let alone adequate, consideration.

Although the Board of Inquiry—established to determine regulatory consent applications lodged for the MacKays to Peka Peka project—considered a submission by Ms Grace and others, it found at [1115] of its final report that “the cultural dimension will be appropriately accommodated and provided for as part of the Project.”[18] It also stated at [1085] that “the acquisition of land by the Crown is a matter outside our jurisdiction”.[19]  This highlights the need for more protective provisions to be incorporated into the current public works legislation.

3. Consideration by the Waitangi Tribunal

The Waitangi Tribunal has been critical of the Crown in using Public Works legislation as a tool to confiscate land from Māori. The Tribunal has found that the Crown’s discriminatory use of public works legislation constitutes a breach of the principles of the Treaty of Waitangi. In the 2010 Wairarapa ki Tararua Report[20] the Tribunal found that the legislation of the time and the procedures followed for taking land were discriminatory to Māori. For instance, under the Public Works Act 1882 the Crown could confiscate any Māori land by an Order in Council without following the usual procedures, such as issuing a notice in the Gazette.[21] The Crown has argued that land acquisitions have been made legally according to statute. However the Tribunal has rightly stated, “If the compulsory taking of land from Māori was wrong in principle…then compliance with statutory requirements does not retrieve the position for the Crown.”[22]

In the Wairarapa ki Tararua Report the Waitangi Tribunal held that the Crown had a duty, when compulsorily acquiring land for public works, to implement partnership with Māori and actively protect, negotiate, and consult with Māori. The Tribunal held that the Crown had failed to fulfill all these duties. The process in which land was taken was convoluted and confused by a swathe of statutes and regulation resulting in limited consultation with Māori. Māori were unfamiliar with the British system of objecting to these works. Therefore, the Crown had a duty to clearly consult with Māori, that Māori were “generally aware”[23] of what was happening to the land was not enough. The Crown should also have been aware of the importance of wāhi tapu and urupā sites to Māori and protected them. For instance, the construction of a rubbish dump on compulsory acquired Māori land in Dannevirke in 1981 showed a disregard for tikanga Māori because it was constructed near a marae.

These findings are relevant to Ms Grace’s dispute. NZTA’s actions illustrate a continuing failure on behalf of the Crown to uphold the terms of the Treaty of Waitangi and support the purposes of TTWMA. Under the second article of the Treaty, the Crown guarantees Māori “full, exclusive and undisturbed possession”[24] of their lands. Grace was denied this right when the NZTA insisted on compulsorily acquiring her land. It is arguable that having a provision that allows the compulsory acquisition of Māori land is a breach of the Treaty in and of itself. However, the Waitangi Tribunal has identified some scenarios where compulsory acquisition of Māori land for public works would be justifiable. Furthermore, the preamble to the Treaty emphasises the importance of maintaining peace and order in New Zealand. These principles suggest that in times of national emergency the acquisition of Māori land may be justifiable. In the Orakei Report 1987 the Tribunal stated that the taking of land:[25]

for defence purposes with a view to securing peace and order [is arguably] acting for the benefit of all citizens… and is not inconsistent with Treaty principles

In its Turangi Township Report 1995, the Waitangi Tribunal stated: [26]

Under article 2, the chiefs gave to the Crown a pre-emptive right to purchase such lands as they might be disposed to sell at such prices as may be agreed upon. Statutory powers giving the Crown a right to ride rough-shod over the solemn rights guaranteed to Maori by article 2 could be justified only ... in exceptional circumstances and as a last resort in the national interest.

The Government has classified the MacKays to Peka Peka expressway as a “road of national significance”. As described by the NZTA, the purposes of these roads are to “reduce traffic congestion, improve safety and support economic growth in New Zealand”[27]. It is difficult to argue that these aims represent the exceptional circumstances contemplated by the Tribunal.

Given that the NZTA attempted to acquire this land without giving alternatives “any, let alone adequate consideration”[28] it is evident that there was no attempt to balance the importance of protecting Māori land interests with the importance of constructing the expressway. This lack of consideration also indicates that the Crown may have breached the duty of active protection implicit in Article II of the Treaty because no effort was exerted in protecting Ms Grace’s ownership of her land.

In its dealings with Ms Grace the Crown may have failed to meet duties of partnership and consultation implied in the Treaty. Ms Grace was not consulted over the acquisition of her land. In an interview with Māori Television, Ms Grace complained that she and her whānau were not informed of the intention to acquire her land until after the consultation process was over.[29] This meant that she was denied the opportunity to offer her opinion on the proposal although as the owner of the land she is undoubtedly an important figure in the process. Ms Grace was also not consulted about alternatives to the use of her land in constructing the expressway. We can see that breaches of the Treaty that the Crown has committed since the 1860s continue today.

4. Future of Public Works Legislation

Some attempts have been made to improve Public Works legislation. In 2001 a review of the Public Works Act 1981 was conducted. Many submissions were made to the Select Committee overseeing this review by or on behalf of Māori. Submitters advocated for the inclusion of the principles of the Treaty of Waitangi in the Act to discourage the acquisition of Māori land for public works. Other submissions included limiting the power of acquisition to central Government rather than allowing this power to be designated to local authorities, and taking into consideration the significance of the loss of the use of the land when negotiating buy-back agreements.[30]

In 2007 Te Ururoa Flavell of the Māori Party introduced the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill to Parliament. The Bill proposed incorporating provisions into the PWA allowing for retrospective payments to be made to those who did not receive adequate compensation from compulsory acquisitions. It also required taking authorities to offer back land that was not used for the purpose it was confiscated.[31] These proposed changes offered considerably more protection to Māori land-owners than the current legislation. However, the Bill failed at its second reading by 14 votes to 108. The Green Party and Māori Party were the only parties to continue supporting the Bill whilst the National, Labour, Act, Progressive and United Future parties all voted against it.

Those against Flavell’s Bill cited two main reasons for their opposition: the difficulty and expense of enforcing retrospective legislation; and the issue of determining ‘original use’ in relation to the offer back provisions. National MP Chris Auchinvole believed the retrospective provisions would result in a “logistical nightmare”.[32] Another National MP, Louise Upston, believed that the implications of the proposed offer back provisions would result in unfair consequences because in many cases the use of land acquired through the PWA had changed, but the use remained in the public interest. Several MPs opposing the Bill believed the Waitangi Tribunal process was sufficient to redress any inequalities caused by historical public works takings. However, Māori Party MP Rahui Katene argued that Māori would only receive back one per cent of what was taken from them through Treaty settlements. Several members advocated for another review of the Public Works Act to deal with these issues and to explore incorporating a “Treaty clause”[33] into the PWA.

Although the Public Works Act has not been substantially amended in recent years for the benefit of Māori land owners it is likely that the publicity surrounding Patricia Grace’s land dispute has generated greater awareness of Māori land issues. In an interview with Māori TV Ms Grace stated that she hoped the cases would get more Māori landowners to become aware of how they can protect their interests and consider turning their Māori freehold land into Māori reservations.[34] It may be that Patricia Grace’s disputes are likely to encourage more opposition by Māori to acquisitions under the PWA.

In studying the disputes over land that New Zealand author Patricia Grace has recently endured, it is evident that the use of Public Works legislation in New Zealand has been destructive to Māori interests in land. In using this legislation to confiscate Māori land for public works that are not of paramount importance to the public interest especially when reasonable alternatives exist, the Crown is potentially in breach of the principles of active protection and partnership contained in Te Tiriti O Waitangi/The Treaty of Waitangi. Until more protective provisions are incorporated into the PWA, Māori land will be vulnerable to compulsory acquisition - despite Ms Grace’s successes in Court which show that Judges are increasingly considering that the protection of Māori interests in light of the terms and principles of the Treaty of Waitangi are highly important. Ms Grace’s success was confirmed in June 2014 when the NZTA abandoned its appeal against the Māori Land Court’s decision to recommend that Grace’s land be set apart as a Māori reservation.

Notes

[1] Public Works Act 1981, s 24(7)(d).

[2] Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268. See (2014) September Māori LR.

[3] “Setting Apart Land as a Maori Reservation” (10 April 2014) 38 New Zealand Gazette 1071 at 1113.

[4] Te Ture Whenua Maori Act 1993, s 338(1)(a).

[5] Te Ture Whenua Maori Act 1993, s 338(1)(b).

[6] (2011) 274 Aotea MB 47 (274 AOT 47). See (2011) October Māori LR.

[7] Te Ture Whenua Maori Act 1993, s 338(1).

[8] Kapiti Coast District Council “Tuku Rakau” Kapiti Coast District Council  <http://www.kapiticoast.govt.nz/Our-District/Heritage-Trail/waikanae/tuku-rakau/>.

[9]   Grace v Minister of Land Information [2014] NZEnvC 82. See (2014) September Māori LR.

[10] McGuire v Hastings District Council [2001] UKPC 43.

[11] McGuire v Hastings District Council [2001] UKPC 43.

[12] McGuire v Hastings District Council [2001] UKPC 43.

[13] Cathy Marr, Public Works Takings of Maori Land, 1840-1981 (1997, Waitangi Tribunal Rangahaua Whanui Series) at [p 11]

[14] Native Lands Act 1865, s 76 and Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 308]

[15]  Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 308]

[16] Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 315]

[17] Waitangi Tribunal The Wairarapa ki Tararua Report  (Wai 863, 2010).

[18] Board of Inquiry in respect of the MacKays to Peka Peka Expressway Project Final Report and Decision, 199.

[19] Board of Inquiry in respect of the MacKays to Peka Peka Expressway Project Final Report and Decision, 194.

[20] Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).

[21] Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010) at 52.

[22] Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010) at 47.

[23] Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).

[24] Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).

[25] Waitangi Tribunal Report of The Waitangi Tribunal on the Orakei Claim. (Wai 9, 1987) at 233.

[26] Waitangi Tribunal The Turangi Township Report (Wai 84, 1995).

[27] NZTA “Wellington Northern Corridor” New Zealand Transport Agency Waka Kotahi <http://www.nzta.govt.nz/network/projects/wellington-northern-corridor/>

[28] Grace v Minister of Land Information [2014] NZEnvC 82, [12].

[29] Interview with Patricia Grace, novelist (Te Karere TVNZ, 15 April 2014).

[30] LINZ Review of the Public Works Act Summary of Submissions (2001).

[31] The Maori Party Public Works (Offer Back of and Compensation for) Amendment Bill (2007).

[32] (21 July 2010) 665 NZPD 12556.

[33] (21 July 2010) 665 NZPD 12556

[34] Interview with Patricia Grace, novelist (Te Karere- TVNZ, 15 April 2014).

 

 

 

 

 

 

 

 

 

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Author: Anna Brenstrum

Anna Brenstrum is an undergraduate student at the University of Otago. In 2015 she is in her fourth year of study towards a Bachelor of Law with Honours and a Bachelor of Arts majoring in History. Anna’s interest in Maori legal issues was spurred by a Maori Land Law course taught by Associate Professor Jacinta Ruru.