Māori land, unlocking the potential – Judge Craig Coxhead
A step forward for indigenous rights jurisprudence and an opportunity for New Zealand – Manitoba Métis Federation (Inc) v Attorney-General (Canada)  SCC 14
Reference to extrinsic material to resolve ambiguity in definition of beneficiaries of whenua topu trust – Pirika v Eru (2013) 2013 Māori Appellate Court MB 127
Māori freehold land status not lost by transfers out of Māori ownership – Taukiri – Parish of Karamu Lot 197A (2013) 52 Waikato Maniapoto MB 294
Review of Te Ture Whenua Māori Act 1993 - Discussion Document reviewed by Tom Bennion
Māori in the seafood sector (fisheries and aquaculture) – the year in review by Justine Inns
The Treaty and the constitution – a symposium – 12 June 2013
This event will be held on Wednesday, 12 June 2013 at the Faculty of Law, Victoria University of Wellington from 1:00pm until 5:30pm.
Download the invitation pānui here (269 KB PDF).
The Māori Law Review is hosting a symposium considering the constitutional role of the Treaty of Waitangi.
This event will be held on Wednesday, 12 June 2013 at the Faculty of Law, Victoria University of Wellington from 1:00pm until 5:30pm.
This event is hosted by the Māori Law Review. It is part of the conversation that is currently occurring about the constitution in Aotearoa New Zealand.
The review of New Zealand’s constitutional arrangements, being carried out by the independent Constitutional Advisory Panel, is at a stage where the panel is encouraging discussion about the constitution.
The range of issues covered by the review addresses electoral matters, Crown-Māori relationship matters and other topics such as whether New Zealand should have a written constitution. For more details about the review of constitutional arrangements see the Panel’s website.
The symposium will include presentations from:
A panel of young New Zealanders will also provide their views on the Treaty’s developing role in New Zealand’s constitutional arrangements.
Constitutional Advisory Panel member Linda Tuhiwai Smith will conclude proceedings with reflections on the afternoon’s discussion and ‘The Constitution Conversation’.
The Māori Law Review is grateful for support to host this symposium from Buddle Findlay New Zealand Lawyers, the New Zealand Centre for Public Law and the Constitutional Advisory Panel.
The Ministry for Primary Industries, Manatū Ahu Matua, recently released a report entitled Growing a Productive Base of Māori Freehold Land. 1 This is one of a number of recent reports concerning the utilisation of Māori Land. 2 These reports all seek to guide and advise on how to “unlock” unrealised potential of multiply-owned Māori land. History tells us that unlocking the potential utilisation of Māori land is not easy – but it is not impossible.
Māori landowners increasingly have diverse aspirations for the utilisation of their land. These aspirations will differ according to the land itself, the owners, and those who administer the land – from large land trusts seeking to utilise the commercial potential of their land, to smaller trusts, or owners without any administrative structure, wishing to live on, farm, or forest their land, set up marae and reservations, or allow the land to remain as a conservation area. The Māori Land Court aims to assist owners where it can to realise these aspirations.
There are many successful trusts and incorporations. Within the current regime, many trusts and incorporations are realising their differing aspirations. We have land trusts worth in excess of $200 million, trusts involved in papakāinga housing projects, orchards, and farms, along with owners who seek to utilise their land by preserving the native forest growing there through rāhui arrangements. These are all success stories where Māori landowners have been able to balance the twin aims of the Te Ture Whenua Māori Act – retention and utilisation.
What is also of note is that the majority of land utilisation initiatives do not require Court endorsement or oversight. In the main, owners are free to go about caring for and utilising their land as they wish. The Court is only required to be involved where an utilisation proposal involves the disposition of interests in land.
Successful trusts and incorporations seldom come before the Court – and nor should they. Interestingly, these trusts and incorporations are succeeding within the same regulatory framework as those that fail. The various trusts and incorporations that do come before the Court for underperformance, failed investments, and financial losses have in many cases ended up there because of failures at the governance level.
A feature of the recent reports is the identification of governance as the key determinant of successful utilisation of multiply-owned Māori land. This is not surprising. The success stories we see all display good governance. Good structures, systems and processes will obviously assist, but in the end it is good people, with good skills, doing a good job that makes the difference. Good people are the key. Experience shows us that the skills and capabilities of those in governance is the key to successful enterprise on Māori land. It is not the regulatory framework that is the main barrier to success.
Unfortunately, many matters that end up as disputes and are subsequently reported in publications like the Māori Law Review inevitably have as their focus the failings of governance. The many successes of trusts that have skilled and capable governors who are utilising their land for the benefit of their owners are rarely reported in cases. That is because nothing has gone wrong. They are simply going about their business and succeeding at unlocking the potential within their land.
People taking the opportunity to comment on the current review of the Te Ture Whenua Māori Act 1993 will no doubt raise a number of the issues noted here, as well as other issues. Tom Bennion has written an interesting preliminary appraisal of these issues in the current Māori Law Review.
Supreme Court of Canada  SCC 14
8 March 2013
Max Harris examines the Supreme Court of Canada’s recent decision in Manitoba Métis Federation (Inc) v Attorney-General (Canada) where that Court further developed the doctrine of the honour of the Crown.
Download Manitoba Métis Federation (Inc) v Attorney-General (Canada) here.
A 6–2 majority of the Supreme Court of Canada has found that the Crown failed to act diligently in fulfilling a promise to the Métis people expressed in the Manitoba Act 1870, thereby violating the honour of the Crown. The claim was not barred by the law of limitations or the doctrine of laches. Accordingly, a declaration was issued to the effect that the Crown had failed to implement s 31 of the 1870 Act consistently with the honour of the Crown.
The decision is important in the context of Canadian indigenous rights jurisprudence. But its development of concepts such as “the honour of Crown”, and its approach to issues of limitations and delay, may also have particular relevance for historical claims made by Māori, despite the differences between the Canadian and New Zealand contexts. All those working on customary rights claims, land claims, and Treaty matters in Aotearoa New Zealand are therefore encouraged to read the Manitoba Métis decision carefully.
In 1867 Canada was formed out of the union of United Canada (modern-day Ontario and Quebec), Nova Scotia, and New Brunswick – and the British North America Act 1867 was passed, now the Constitution Act 1867.
There was a desire amongst settlers to push further westwards. Some treaties were negotiated between settlers and indigenous peoples to achieve this purpose. In Manitoba, however, settlement was organized through the Manitoba Act 1870.
Manitoba comprised an 85% Métis population. The Métis are an indigenous group distinct from the First Nations, comprising descendants of early unions between European adventurers and traders, and Aboriginal women. The main Métis site, the Red River Settlement, resisted invasion by the Canadian government and called for negotiation.
This negotiation led to the 1870 Act. The legislation was affirmed by the local Manitoba legislative assembly. And, importantly, as a product of the negotiation, section 31 of the Act noted that 1.4 million acres of land would be granted to children of the Métis heads of families, “towards the extinguishment of the Indian title”. Section 32 arranged for the recognition of existing title.
However, errors and delays beset the division of this land. The land was divided amongst all 10,000 Métis in 1871, rather than just children of the heads of families; the government then revised its position in 1873 and aimed to divide the land amongst heads of families; there were further delays after disputes over the number of Métis children; and makeshift attempts were made to cater for children who had received no land once the allotments had been made by 1885.
The trial judge at first instance found that the Crown owed no fiduciary duty or duty based on the honour of the Crown to the Manitoba Métis in the context of what occurred between 1870 and 1885.
Land had been originally owned individually, not collectively, meaning no duty could be founded, said the judge. Statutes that followed the 1870 Act were also thought by the trial judge to be constitutional.
Further, the claim failed on procedural grounds: the law of limitations and the doctrine of laches barred the claim, and the Manitoba Métis Federation ought not to be granted public interest standing, since the claims could be brought individually.
A five-member panel of the Manitoba Court of Appeal affirmed the trial judge’s conclusions. While it disagreed that collective ownership of land was necessary to ground a fiduciary duty owed by the Crown to indigenous peoples, it found that there was manifestly no breach of any possible fiduciary duty. Moreover, the Court rejected any independent claim based on the honour of the Crown, and upheld the trial judge’s findings on limitations, laches, and standing.
The Manitoba Métis Federation pursued its claims for various declarations to the Supreme Court of Canada. The issues on appeal, as framed by the majority of the Supreme Court, were six-fold:
The lead majority judgment of McLachlin CJ and Karakatsanis J noted that there was an argument that public interest standing should not be granted to the Manitoba Métis Federation, since there were other claimants representing the same interests. However, applying the Court’s recent decision in Canada v Downtown Eastside Sex Workers United Against Violence  2 SCR 524, the majority judgment found that public interest standing requirements ought to be interpreted in a “flexible and generous manner”.
The Chief Justice and Karakatsanis J noted that if a group serves “a particularly useful or distinct perspective”, a favourable approach should be taken to granting public interest standing, even if other plaintiffs have a direct interest in the issue. The majority found that such a perspective was provided by the Manitoba Métis Federation: it was taking a collective claim for the purposes of reconciliation.
As a result, the majority disagreed with the findings of the courts below on standing. The dissenting judgment of Rothstein J (joined by Moldaver J) agreed with the majority on the issue of standing, making this conclusion unanimous.
McLachlin CJ and Karakatsanis J noted that there were two possible triggers for the operation of fiduciary obligations between the Crown and the Métis: what might be called the “control-interest” trigger for fiduciary obligations; and the “undertaking-interest” trigger.
The first requires the Crown to:
There was an assumption of Crown control on the facts through the 1870 Act, but no specific pre-existing Aboriginal interest, said McLachlin CJ and Karakatsanis J; the interest was a creation of the 1870 Act.
As for the “undertaking-interest” trigger, what is required is:
Applying this test to the facts, the joint lead majority judgment held that there was no Crown undertaking to act in the best interests of the Métis as a matter of priority over other concerns – the legislation conferred a discretion. Hence no fiduciary duty existed on the facts.
The dissenting judgment of Rothstein and Moldaver JJ also agreed with this conclusion.
The majority did, however, hold that there was a violation of the honour of the Crown.
The honour of the Crown requires servants of the Crown to conduct themselves with honour whenever acting on behalf of the Sovereign. It arose, said the majority judgment, from the Crown’s assertion of sovereignty over Aboriginal people in Canada and de facto control of lands, as demonstrated by Acts such as the Royal Proclamation of 1763, which expressed the need for protection of indigenous peoples in Canada.
The concept of the honour of the Crown developed out of the imposition of a foreign legal system, said the majority, which created a “special relationship” between the Crown and the Métis. The majority noted that the honour of the Crown is engaged in Crown dealings with Aboriginal people and when explicit obligations are undertaken to an Aboriginal group.
Far from being a novel concept in the law, the majority claimed that past case law demonstrated that the honour of the Crown could be a basis for fiduciary duties; a reason for the duty to consult to apply; a justification for honourable treaty-making; and an imperative to accomplish the purpose of treaty and statutory grants.
The concept is context-sensitive, but where a constitutional obligation to an Aboriginal group exists, the majority judgment found (at ) that the honour of the Crown requires:
Not every mistaken or negligent act calls into question the honour of the Crown. But where there is a “persistent pattern of errors and indifference that substantially frustrates the purpose of a solemn promise”, the honour of the Crown will be violated (see ).
Examining this concept in the light of the facts, the Chief Justice and Karakatsanis J first considered the claim that the argument based on the honour of the Crown was not raised by the appellants (a point invoked by Rothstein J in dissent). Their judgment noted that the concept was at least implicit in arguments made, particularly by interveners.
Section 31 of the 1870 Act engaged the honour of the Crown, since it involved a solemn obligation of the Crown to a particular Aboriginal group. Section 32 (recognising existing title) did not engage the concept, as it was a general commitment to recognize the rights of all individuals.
For the honour of the Crown to be satisfied on the facts, the judgment said that prompt and equitable implementation of the promise in s 31 of the 1870 Act was required. Such prompt and equitable implementation in the allotment of lands to Métis did not occur. There was delay and persistent inattention by the Crown when time was of the essence (and while there was no bad faith, diligence on the part of the Crown requires more than an absence of bad faith, said the majority). Thus, the Crown’s conduct fell below the standard to be expected in the circumstances.
As has been alluded to already, the two dissenting judges in the Supreme Court diverged from the majority on this cluster of issues. The dissent began by disagreeing with inferences draw from the factual record, noting that while there was Crown delay in distributing land, there was not persistent inattention to the process, as found by the majority. The delay, said the dissent, was caused by care taken in making allotments, political changes, difficulties in conducting a census, and general administrative complications.
The judgment of Rothstein J hence started by expressing some sympathy with the position of the Crown in the 1870s in Manitoba, and counseled against applying modern standards of efficiency to past governments. Rothstein J went on to cast doubt on whether the negative consequences attributed by the majority to delay were really caused by delay.
Rothstein J objected more broadly, though, to the development of the concept of the honour of the Crown itself. The honour of the Crown requires a “solemn obligation”, but Rothstein J questioned what amounts to such an obligation. Moreover, Rothstein J questioned the criteria offered for when the honour of the Crown is engaged: namely, when a solemn obligation is engaged, and when it is owed to a specific Aboriginal group. This is to create a “fiduciary duty-light” concept, said Rothstein J, and a “significant expansion of Crown liability” (at ).
Rothstein J also took issue with the fact that arguments about the honour of the Crown had not been properly raised by the parties, meaning that the Crown had no opportunity to oppose the arguments. He described this as an “inroad into due process” (see ). There was no chance to consider the impact of the development of the honour of the Crown, rendering it an undesirable development.
Later legislation passed from 1877–1885 was said to be unconstitutional by the appellants. But because this legislation was no longer in force and could have no future impact, the Court (through both the majority and minority judgments) found that their constitutionality was moot.
The joint judgment held that while a claim for personal remedies might be barred by limitations periods, declarations as to constitutionality are not subject to the same restrictions. Because the case before the Court was not about personal claims – it sought declarations to assist in extra-judicial negotiations between the Crown and Métis – the Court was not precluded from issuing declarations. Breaches of fiduciary duty are generally subject to six-year limitation periods. But this was a case about a declaration for a violation of the honour of the Crown, said the Chief Justice and Karakatsanis J. Their Honours observed that higher constitutional purposes of reconciliation could not be held back by limitations statutes. The policies underlying the application of limitations periods did not apply: the claim was not stale; there were no third party legal interests at stake; and declaratory relief is a remedy with a narrow compass.
Rothstein J (joined by Moldaver J) stated that there was no principled basis for an exception to the application of limitations legislation. The claims were brought in 1981; the lapse in time was clearly beyond the usual six-year limitation. The bringing of past litigation by Métis representatives showed an awareness of their rights, and however framed, the case that was brought was a “cause of action” subject to limitations legislation.
Rothstein J accepted that there was generally an exception to limitations periods where the constitutional validity of a statute was in issue, but said that this exception should not be extended to declaratory relief of a constitutional nature (especially given that limitations legislation did not allow an exception for declaratory relief).
As well, limitations legislation should not be judicially circumvented, said the minority judgment. Policy reasons of certainty, lack of evidence, and diligence supported the conventional operation of limitations periods. Certainty, in particular, was imperiled in this case because of the possibility that extra-judicial negotiations would now be lengthened as a result of the Court’s judgment.
After considering the standard exceptions to the operation of limitations – based on discoverability and disability – Rothstein J noted that none applied on the facts. Interestingly, his Honour observed that some limitations legislation had exempted Aboriginal claims from “ultimate limitation periods” (limitation periods that applied regardless of exceptions), but he asserted that this proved that the issue was one for legislatures to consider, not the courts. Additionally, Rothstein J raised the spectre of indeterminate liability and observed that limitations periods do apply to cases involving the Crown, reinforcing the view that the claim should have been time-barred in this case.
Finally, the joint majority judgment considered the doctrine of laches, which requires that an equitable claim be prosecuted without undue delay and that acquiescence or a change of position during delay may compromise a claim. The majority judgment refused to accept that there was any evidence of acquiescence, though there had been a delay of over 100 years since the events in question. Further, the majority contended that there was no change of position. Accordingly, the equitable doctrine of laches did not apply to bar the Métis claims.
The dissenting judgment also disagreed on this point. For Rothstein J, joined by Moldaver J, there was plainly acquiescence. His Honour accepted the historical injustices pointed to by the majority, but said that these had no impact on the Métis’ knowledge of their rights under the law. Indeed, the Métis, claimed Rothstein J, seemed to be well aware of legal avenues of redress, as evidenced in certain claims taken by members of the Métis community to the Privy Council in the late 19th century. His Honour objected to the argument that laches cannot apply to claims relating to the honour of the Crown.
This is a landmark decision in Canadian indigenous rights jurisprudence. The judgments in the case provide further evidence that the Supreme Court of Canada has positioned itself as an active facilitator of reconciliation between the Crown and indigenous peoples in that country. And Manitoba Métis is significant in its contribution both to substantive and procedural aspects of the law: it throws further light on fiduciary duties in an indigenous–Crown context, deepens the notion of the honour of the Crown, and also develops in interesting ways doctrines relating to standing, laches, and limitations.
This is not the place to offer a detailed assessment of the persuasiveness or otherwise of the majority and minority judgments; there are scholars of Canadian law in a better position to make such assessments. Nonetheless it is possible to make four brief evaluative points.
While the issue of standing was not the subject of disagreement amongst the judges, it is worth noting, first, that the reasoning on this point is somewhat threadbare. The broad thrust of the approach in Manitoba Métis – towards more flexible rules of public interest standing – is desirable to encourage the airing of perspectives when complex issues of indigenous rights arise. But there is perhaps a need to clarify how the “useful or distinct perspective” yardstick fits into the test that the Supreme Court of Canada has developed in the past on standing.
Secondly, the Court’s reasoning on the fiduciary duty issues does raise some questions about the application of fiduciary law in Canada (and perhaps in New Zealand) to indigenous peoples. Should it really be necessary for there to be a pre-existing Aboriginal interest for fiduciary obligations to apply? This seems to rule out the application of fiduciary law to modern, legislatively-created indigenous interests. Such a move may constrict the development of fiduciary law at a time when (in Canada and New Zealand) there have been numerous new legislative developments around indigenous customary rights, such as the Marine and Coastal Area (Takutai Moana) Act 2011.
Thirdly, the honour of the Crown analysis of the majority is promising – and appears to survive the scathing criticisms of the dissenting judgment. The cries of uncertainty from Rothstein J are unsurprising given the relative novelty of the concept of the honour of the Crown; the concept may simply need more time to be elaborated and refined.
Finally, on limitations and laches, the majority does well to avoid an overly technical or legalistic approach to issues of such constitutional importance. However, the dissenting judgment is useful in highlighting shortcomings in the approach. It may be that there will need to be further judicial consideration of exactly when exceptions to limitations and laches are to apply. That said, it seems convincing provisionally that – as the majority notes – if limitations periods do not apply to assessments of the constitutional validity of an Act, those same restrictions should not apply to declaratory relief relating to constitutional conduct. The majority judgment also provides cogent reasons why there was no change of position on the facts that might have prompted the intervention of the laches doctrine; the minority does not adequately rebut this claim.
Where this case is perhaps most interesting, though, for New Zealand scholars and practitioners, is in what it offers for the future path of indigenous rights jurisprudence in our country. The “honour of the Crown” has not received much attention in New Zealand law, and more work will need to be done to determine whether it is a concept most applicable to Canada. For instance, is the absence of a single codified constitution in New Zealand a significant distinction which precludes the operation of the “honour of the Crown” here? (A possible answer is that the difference between the two jurisdictions is overstated: as noted in cases such as Reference re Secession of Quebec  2 SCR 217, Canada’s constitution comprises written and unwritten parts, just like the New Zealand constitution, and so the absence of a wholly codified constitution is not a true point of distinction.) Notwithstanding the need for further work, it may be that threads of argument can be brought together to justify developing the “honour of the Crown” notion in New Zealand law: the 1839 Letters Patent and instructions to Governor Hobson could provide an analogue to the 1763 Royal Proclamation relied upon by the Court in Manitoba Métis, while the Treaty of Waitangi (in particular, its commitment to the protection of taonga in Article Two of the Māori version) could buttress this contention.
Only time will tell, too, whether the Supreme Court of Canada’s pronouncements on laches and limitations may come to influence New Zealand’s approach to these issues. We might expect the New Zealand Supreme Court to weigh in on these issues when it hands down judgment in Paki v Attorney-General (No 2) (heard on 19 and 20 February 2013) – and the Wakatū litigation, currently awaiting hearing before the Court of Appeal, offers a further opportunity for New Zealand appellate courts to consider this thought-provoking decision of the Supreme Court of Canada.]]>
Download the Discussion Document here (1.2MB PDF).
This review of Te Ture Whenua Māori Act 1993 follows on from recent analysis undertaken by Te Puni Kōkiri (TPK) and the Ministry for Primary Industries, Manatū Ahu Matua (MPI), which suggests that around 40% of Māori land is under-performing and a further 40% is under-utilised.
The issue of what to do with under-utilised Māori land is not new.
In the 19th century it was a perennial concern of settler governments. Back then, there were two broad policy approaches. The first was legislation to enable purchasing of individual blocks at a faster pace. Secondly, district wide schemes that attempted to identify all the areas that Māori might give up to European settlement for a song, while retaining a modest amount for themselves (usually disastrously small and poorly located).
In the 20th century the pattern repeated itself, with legislative interventions such as the forced sale of ‘uneconomic’ shares and the outright taking of land covered in weeds. These were accompanied by broader schemes of consolidation and amalgamation of remaining scattered Māori blocks. For the most part these overpromised and under-delivered, or were set up to fail. The Waitangi Tribunal has examined these issues in a number of inquiries.
Te Ture Whenua Māori Act 1993 was primarily intended, and has acted, as a Māori land preservation act. Very little land has left Māori hands since it was enacted. Its attempts at innovation in the management of Māori land – such as through whenua topu trusts – have not enjoyed such broad success.
Enter the National government, with its rural focus and a general interest in lifting the performance of rural land, and newly resurgent Māori businesses, including some post settlement governance entities with settlement cash to invest.
In March 2011 the Ministry for Primary Industries released a report entitled “Māori Agribusiness in New Zealand: A Study of the Māori Freehold Land Resource”.
The MPI report is a detailed business analysis of the current productive capability of Māori freehold land. That land is divided into 3 broad categories, with a number of sub-categories under each:
TIER 1 – WELL-DEVELOPED BUSINESSES
This tier includes well-developed businesses with the potential for further growth. The consensus from discussions is that Tier 1 probably involves about 20 percent of Māori freehold land (approximately 300 000 hectares). Considerable areas of general land are farmed in conjunction with the core collectively owned Māori freehold land.
TIER 2 – UNDER-PERFORMING ENTITIES
Tier 2 entities can be described as those with landholdings that are currently developed for productive use but which are clearly, often markedly, under-performing compared to similar enterprise benchmarks. The consensus from discussions is that Tier 2 probably involves about 40 percent of Māori freehold land (approximately 600 000 hectares).
TIER 3 – UNDER-UTILISED LANDS
Tier 3 represents a complex mix of circumstances and conditions – there is an amalgam of situations that contribute to this land being under-utilised. The drivers of under-utilisation range from the inherent physical production of the land not being realised, constraints on the physical capacity of the land itself through a lack of identifiable owners or management entities. There is also an under-contribution to the financial wellbeing of the ownership group. The consensus from our discussions is that Tier 3 probably involves about 40 percent of Māori freehold land (approximately 600 000 hectares).
The MPI report goes on to make 10 recommendations:
1. Develop a series of capability development programmes to assist those overseeing Māori entities.
2. Develop guidance, best practice manuals and training courses for those providing information to Māori land governors.
3. Establish bespoke support services (for both on-farm technical and financial management skills) for Māori land.
4. Develop training programmes for farm managers of Māori land.
5. Design capability development programmes specific to small entities.
6. Develop support networks for those tasked with governing Māori land.
7. Develop stronger communication channels between Māori and government.
8. Update Māori Land Court systems.
9. Update legislation to provide tools and options to deal with current issues.
10. Support trusts and incorporations to have greater input into the management of their assets.
Recommendations 9 and, possibly, 8 and 10 require changes to Te Ture Whenua Māori Act 1993.
In April 2011 Te Puni Kōkiri released a report on “Owner Aspirations Regarding the Utilisation of Māori Land”
The authors of this report, Whaimutu Dewes, Tony Walzl and Doug Martin, drew on discussions from six hui to which owners were invited from a cross section of 4 different management types, similar to the 3 tiers in the MPI report:
The summary of owner aspirations suggests that most owners are quite conservative as to the future uses they wish to put their land to:
• to retain the land that had been handed down from tipuna thereby maintaining owners’ association with it
• to utilise the land within the context of exercising values associated with land as a tāonga tuku iho such as kaitiakitanga and manaakitanga
• to provide the opportunity for owners to directly utilise undeveloped land (e.g. for hunting and fishing, papakāinga, cultural observance)
• to achieve a balance between managing the land as a viable business but still maintaining the owners’ cultural connection
• to retain and improve existing long term businesses associated with the land, especially farming, and for owners to use the land directly rather than through lease
• to achieve the maximum financial return for the owners, provide employment for the owners where possible and to build a financial base for coming generations
• to achieve the best economic potential through exploring the possibility of diversification into new commercial opportunities
The report noted:
examples [of best economic potential] … were often comparatively low capital ventures including bee keeping, development of tracks and huts on undeveloped land for tourism ventures, and offering hunting and fishing tours.
The report notes at one point (at p 17):
It was acknowledged [by owners] that the commercial use of land inevitably raised the possibility of conflict with the maintenance of some types of cultural connection with land and that in some situations trade-offs would have to occur. The aspiration to retain or rebuild the cultural associations with the land was clearer and simpler when the land was covered in bush but less clear when there was a commercial venture such as a stud merino farm located on the land.
And also (at p17):
… a fair proportion of owners indicated that they were only beginning to think about their land and its utilisation for the first time and were only on the first steps of beginning to form any aspirations at all.
The owners discussed the hurdles they faced. The report also discusses the lopsided nature of Te Ture Whenua Māori Act 1993 in terms of land utilisation (at p 52):
The clauses of TTWMA essentially are proscriptive in relation to retention with clear boundaries placed around possible owner actions. In relation to utilisation, there is no such proscription.
Among recommendations of the report are several requiring review of the Act including:
Consider the benefits and risks of exempting from certain regulatory oversight any Māori land management entities that have met a set of benchmarks relating to governance, financial management and capacity:
Identify and ameliorate clauses which potentially present barriers to Māori land management entities, and other ownership groups, working towards the utilisation of land and achievement of aspirations:
Consider ways in which the fragmentation of Māori land titles might be addressed
As will be seen, these directly inform the task of the review panel.
The independent expert review panel is chaired by Matanuku Mahuika. The other members are Tokorangi Kapea, Patsy Reddy and Dion Tuuta.
The panelists between them have considerable experience with the problems of utilising Māori land. They also represent the Māori business renaissance and are all involved in one way or another in Treaty settlements. They are well aware of the potential but also the risks when it comes to developing Māori assets on behalf of owners linked by whakapapa, often with keen expectations, but very limited capital. See for example Dion Tuuta’s insightful piece on the disaster that befell the Ngati Tama claim settlement.
Although developed from ‘first principles’, the terms of reference for the panel were limited to recommending changes to Te Ture Whenua Māori Act 1993, informed by the earlier research and conclusions:
Te Ture Whenua Māori Act 1993 (TTWMA) Review Panel (the Panel) will make recommendations on what form of legislative intervention might best support the owners of Māori land in reaching their aspirations.
Empowering Māori land owners to achieve their aspirations will involve making recommendations in four key areas:
Ownership: Māori land owners are affiliated and engaged with the land;
Governance: there are appropriate structures and trustees with expertise to support effective decision-making;
Access to resources: resources are available to enact decisions; and
Utilisation: the better utilisation of Māori land is enabled.
In addition, the Panel was invited to make recommendations to improve capability, in terms of skills and knowledge, in all of these areas.
The panel developed 5 inter-related principles from which it developed its specific recommendations. These were:
Proposition 1: Utilisation of Mäori land should be able to be determined by a majority of engaged owners
Proposition 2: All Mäori land should be capable of utilisation and effective administration
Proposition 3: Mäori land should have effective, fit for purpose, governance
Proposition 4: There should be an enabling institutional framework to support owners of Mäori land to make decisions and resolve any disputes.
Proposition 5: Excessive fragmentation of Mäori land should be discouraged.
Looking at each of these in turn.
The major proposal under this heading is that a new definition of “engaged owner” is included in Te Ture Whenua Māori Act 1993. This would be defined as “an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee.”
The panel then proposes modest changes to the powers to dispose of interests in Māori freehold land, making use of the engaged owner, and reducing Māori Land Court intervention to proposals where loss of the whole of the land is a possibility.
The requirements for a decision to permanently alienate the land would remain unchanged. That is, 75% of all registered owners to vote in favour, and those who can affiliate to the land have a first right of refusal (at market price).
Those who affiliate would “include children and whānau of the owners and their descendants.” It is unclear, but this seems to be a lot narrower than the existing “preferred class of alienees” which includes “children and remoter issue” of the owners, “whanaunga … who are associated in accordance with tikanga Māori with the land”, “members of the hapu associated with the land”, and “descendants of any former owner who is or was a member of the hapu associated with the land” (s4 Te Ture Whenua Māori Act 1993)
Decisions which are less important, but still significant, such as long term leases or mortgages, would require approval from 75% of engaged owners.
All other decisions would require approval from 50% of engaged owners.
The Māori Land Court would have oversight only over decisions to permanently alienate the land.
The panel proposes that where owners are not engaged or cannot be located, an external administrator of the land may be appointed by the Māori Land Court. This would be the Māori Trustee, or in some cases “Post Settlement Governance Entities, Māori trusts and incorporations with hapū or iwi affiliation to the particular Māori land.”
They would be appointed in limited circumstances. “The Panel considers that the threshold for such an intervention should be extremely high and is only likely to be used in exceptional circumstances.”
The Māori Land Court would keep a register of potential external administrators. It would appoint and maintain oversight of the external administrators.
The panel recognises that it would be undesirable if the external administrator bound the owners into arrangements which they might have great difficulty unwinding should they came back in administer the land. Consequently the administrator’s powers are strictly limited:
The Panel proposes that the role of the external administrator should be to administer the land as effectively as possible and, if possible, to identify potential owners and return the land in its current state or in a more developed state. Depending on the capability of the land and the issues associated with it, administration could range from designating it for cultural or environmental purposes (e.g. Wāhi Tapu, Māori Reservation, Ngā Whenua Rāhui), leasing or low intensity utilisation in order to maintain the property (e.g. pay rates, maintain fences), or higher intensity utilisation in order to generate a return.
In situations of cultural or environmental designation, identification should proceed if possible. In situations of low or high intensity utilisation, identification should occur after this has been achieved in order to fund identification activity as well as to encourage potential owners to succeed.
Since the external administrator is not the owner, utilisation decisions should be constrained so that if potential owners do succeed, they are able to make decisions about the land and not be bound in the long run by the decisions made by the external administrator.
The Panel proposes that any environmental or cultural designation, leasing or other activity undertaken by the external administrator that has the effect of locking up the land for a significant length of time should be constrained (e.g. lease duration is limited) so that any potential engaged owners can eventually make their own decisions.
The panel recommends that governance requirements for trusts and incorporations should be more clearly spelt out, and be more consistent across the different types of arrangements that can apply to Māori land and parallel those for ordinary companies.
Governors should be acknowledged and remunerated for good performance but should also be punished for poor performance. The Panel proposes that the duties, responsibilities, and required competence of governors of Mäori land should be specified in detail including introducing civil penalties for negligence (e.g. not filing returns) and criminal penalties in the case of fraud.
A potential starting point for considering what the duties of governors could be is provided in the current approach to the duties of company directors.
The Panel suggests amendments that would provide a higher bar to seek intervention by the Māori Land Court than at present (where applications require little more than broad allegations and a modest filing fee).
The proposition is that Te Ture Whenua Māori Act more closely follows employment and family law in promoting mediation as the first stop in disputes.
The panel notes that 27,308 Mäori freehold land titles are currently held in 2,710,214 individual ownership interests and proposes simplifying succession provisions, but has no particular ideas on how to do this. A “central registry that records Māori ownership interests” is also mooted.
Finally the panel wonders if a way to prevent further excessive fragmentation is to introduce a threshold under which an ownership interest can’t be divided further. “If such a mechanism were introduced, the decision-making rights of owners would be limited to those engaged owners with minimum threshold interests.”
Despite the concern about under-performance and under-utilisation on which the review is based, the proposals are for the most part quite modest. That perhaps reflects the relatively conservative, and diverse, aspirations of owners. There is no suggestion, for example, to amend the retention or utilisation clauses in the Act to tilt towards utilisation. Instead, the proposals attempt to free up owner decision making processes in some situations.
Some of the proposals appear light on detail. Defining an “engaged owner” as “an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee” does not suggest that detailed consideration has gone into how the Māori Land Court currently manage votes in land blocks with large numbers of owners who cannot be located and the “reasonable efforts” approach that is taken in such circumstances.
The proposal for a mediation service likewise does not seem to appreciate how informal Māori Land Court processes currently are. On many occasions the Māori Land Court already acts as a kind of whānau counselling service. This is evident from reading almost any month’s worth of transcripts of proceedings.
A specialist and focussed mediation service might be a good addition. However, to work effectively, there need to be real incentives to settle. In the case of most courts the incentive is the costs of having to take the case to a hearing, and the risk of significant costs orders in favour of other parties if you lose. Mediation without significant external incentives is likely to be no more than a waypoint on the road to a court hearing.
In terms of the proposal for external administrators, this would presumably allow post settlement governance entities and strongly performing trusts and incorporations to take blocks of Māori land “under their wing” as part of their business development.
A key factor will be the circumstances in which this will occur and the returns to the administrator. Will they administer with an eye to recovering only their expenses, or will they be allowed to seek a profit via a management company? What if the land performs poorly and debt increases, or leases fall in with covenants poorly enforced (as has occurred historically with the Māori Trustee)? I wonder if post settlement governance entities, who have enough on their plate already (see the Tuuta article above), would have the time or resources for this role.
Te Puni Kōkiri is seeking comments by 14 June 2013. These can be sent to TTWMA@tpk.govt.nz or Te Ture Whenua Māori Act Review Panel, c/o Te Puni Kōkiri, PO Box 3943, Wellington.
In addition, a series of regional hui will be held until 17 May 2013.]]>
There can be no debate about the key role kaimoana (seafood) occupies for Māori culture; it plays a part in many tribal histories, identities and political allegiances (and enmities). Therefore it is not surprising that litigation over the expression of rights to harvest kaimoana should have a long history. Over recent decades, pan-iwi settlements in respect of fisheries and marine aquaculture have had the effect of cementing a place for iwi in the New Zealand seafood sector.
If there is an overall theme that permeated the year for Māori in the commercial seafood sector, it could be described as the continued ‘mainstreaming’ of iwi interests into the wider sector. Allegations of mistreatment of crew aboard Foreign Charter Vessels (FCVs), resulting in proposed changes to the make-up and operation of the deepwater fishing fleet, have forced some iwi to take a greater interest in the manner in which the quota holdings are caught. To the extent this leads to a more active participation in the sector, it is likely to prove a long term positive.
While the implementation of changes to the Māori Commercial Aquaculture Settlement enacted in 2011 are still in their early stages, a similar pattern is emerging. For iwi to fully realise the benefits of that settlement, they will be – to some extent – reliant on marine farmers developing new operations and thus creating settlement entitlements. Approaching that equation as passive recipients of such entitlements is likely to return far less benefit than iwi engaging actively with other marine farming interests and seeking out opportunities to progress developments and settlement entitlements hand in hand.
The Māori Fisheries Settlement was concluded in two steps, with the interim settlement effected by the Māori Fisheries Act 1989 (MFA89) resulting from the introduction of the property rights-based Quota Management System (QMS); this had the dual effect of highlighting the unresolved status of customary Māori fishing rights and excluding part-time fishers (many of whom were Māori) from receiving allocations of quota.
Following the landmark case Te Weehi v Regional Fisheries Officer  1 NZLR 680; (1986) 6 NZAR 114, (which held that s 88(2) Fisheries Act 1983 (FA83) had effectively preserved Māori fishing rights) and the decisions in New Zealand Maori Council v Attorney-General (8/10/87, Grieg J, HC Wellington, CP553/87) and Ngai Tahu Maori Trust Board v Attorney-General (2/11/87, Grieg J, HC Wellington, CP559/87; CP610/87; CP614/87), in which the High Court considered the effect of the promulgation and operation of the QMS on those Māori rights. The Court concluded that it was arguable that s 88(2) of the FA83 made the Treaty of Waitangi directly enforceable in an active rather than passive sense (for the purpose of securing rights, not merely a defence). Taking the view that the guarantees of Article II of the Treaty in respect of fisheries directly conflicted with the proprietary nature of the quota rights created by the FA83, the High Court issued a series of injunctions preventing the Minister of Fisheries bringing any further species under the QMS. In response, as so as to allow implementation of the QMS to continue, the MFA89 was passed as part of an interim settlement. The effect of the interim settlement was to require the Government to purchase 10% of quota for all species then under the QMS, to be transferred to a Commission which would hold it in trust for Maori.
Negotiations by the Crown and Māori negotiators, given impetus by the proposed sale of a 50% interest in New Zealand’s largest fishing company, Sealord Group Limited (SGL), led to a final settlement enshrined in a 1992 Deed of Settlement and implemented through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (TOWFCSA). The settlement had four key features:
Customary fishing is currently administered primarily under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), and the Fisheries (South Island Customary Fishing) Regulations 1999. In areas where those regulations are yet to be implemented, customary fishing is conducted under regulations 27 and 27A of the Fisheries (Amateur Fishing) Regulations 1986.
The impact of the Fisheries Settlement on customary rights was recently discussed in Ministry for Primary Industries v Benson (12/11/12, DC Thames, CRN12075500243), in which defendants charged with taking fish illegally claimed to be exercising customary rights. They argued that, as they were not registered members of an iwi authority who signed the 1992 Deed of Settlement, s 10 of the TOWFCSA did not apply to them. The Court held, consistent with a line of authority beginning with Manukau v Ministry of Fisheries (29/7/98, Salmon J, HC Auckland, M984/97), the TOWFSCA applied to non-signatories as well as signatories to the Deed and was therefore binding on the defendants.
The enactment of the TOWFCSA was followed by a decade of debate, dispute and litigation in respect of the scheme that should be adopted for division and allocation of the settlement assets between iwi. The result was the Māori Fisheries Act 2004 (MFA04), which reconstituted the Treaty of Waitangi Fisheries Commission as Te Ohu Kai Moana (Te Ohu). The MFA04 provides for quota to be allocated to iwi on the basis of a combination of coastline and iwi population, necessitating agreement between neighbouring iwi as to the length of their respective coastlines. Shares in SGL and other fishing enterprises that had been acquired by the Commission were retained in Aotearoa Fisheries Limited (AFL), with iwi receiving ‘income shares’ in that company, entitling them to a share of its dividends. The MFA04 also introduced a number of minimum standards of governance, accountability and representation that iwi entities would have to meet in order become a Mandated Iwi Organisation (MIO) and receive their share of settlement assets.
The Māori Commercial Aquaculture Settlement had a rather different and more truncated history. Farming of mussels began in the Marlborough Sounds and the Hauraki Gulf in the 1970s. By the late 1990s, farmed species included oysters, salmon and paua and the industry had expanded to the extent that Regional Councils were struggling to manage demand for water space. In 2001, the government proposed a new regime based on the concept that development of aquaculture would take place only within Aquaculture Management Areas (AMAs) defined by Regional Councils through their planning documents under the Resource Management Act 1991 (RMA).
Iwi organisations referred these proposals to the Waitangi Tribunal, particularly concerned that rights to use space in AMAs would be sold by tender, creating a system of quasi-property rights not unlike those involved in the QMS. In its 2002 report, Ahu Moana: The Aquaculture and Marine Farming Report (2002, Wai 953), the Tribunal found the government proposals to constitute a breach of the Treaty and recommended that, before introducing legislation, the Crown should consult and negotiate with Māori on processes for investigating the nature and extent of the Māori interest in marine farming and for protecting that interest and preserving the Crown’s capacity to meet its Treaty obligations in the short term (at 76-77 of the report).
The challenge of developing a process to ‘investigate the nature and extent of Māori interests in marine farming” was soon overtaken by the decision of the Court of Appeal in Ngati Apa v Attorney-General  3 NZLR 643 (CA), in respect of foreshore and seabed; another case that also had its genesis in iwi concerns over the expansion of the aquaculture industry. In the acrimonious environment that followed, the government decided that provision for Māori interests should form part of its proposed reforms of aquaculture but that consultation was not required, as the matter constituted ‘unfinished business’ from the 1992 Fisheries Settlement and could be settled on the same basis.
The result was the Maori Commercial Aquaculture Claims Settlement 2004 (MCACSA), which shares a number of features with the MFA04 and the TOWFCSA that preceded it:
The Aquaculture Settlement differed from the Fisheries Settlement in one key respect, by not addressing any customary, non-commercial component of Māori rights.
Iwi aspirations for the Aquaculture Settlement, and indeed the New Zealand aquaculture industry as a whole, were to be thwarted by one thing: Regional Councils demonstrated little, if any, interest in developing AMAs and none materialised (except in the Tasman District and the Firth of Thames in the Waikato region, where planning for AMAs was already well-advanced prior to the 2004 reforms). The first response to this was seen in 2009, when the Crown concluded an ‘early’ settlement with iwi of Te Wai Pounamu and Coromandel in respect of their pre-commencement entitlements’ cash payment of $97M. Similar settlements followed in respect of other regions and others are still in process.
A further reform of aquaculture legislation was undertaken in 2011, scrapping the idea of AMAs in favour of a return to managing applications for space on a ‘first come, first served’ basis, though with new tools allowing councils and the responsible Minister to intervene in situations of high demand. This presented significant problems for the Aquaculture Settlement, however, as authorisation (conferring an exclusive right to apply for coastal permits) for space in AMAs was the fundamental ‘currency’ of the settlement.
The 2011 amendments to the MCACSA presented the Māori entitlement to 20% of new space (or the equivalent) but introduced new mechanisms for delivery of that entitlement, focused primarily on the ‘regional agreements’ model that had worked well in respect of pre-commencement entitlements. Regional agreements may include, as deliverables, space, cash or anything else that is agreed between the Crown and iwi with coastal interests in the relevant region and may be based on anticipated new aquaculture development, not just ‘new space’ that has already been created.
To facilitate the negotiation process and ensure that potentially suitable space remains available for use in a regional agreement to be protected, the Minister was given a new power to declare space in the coastal marine area as being required to meet settlement obligations (Aquaculture Settlement Areas), by notice in the Gazette. Applications for coastal permits in such Gazetted areas can be made only by, or with the permission of, the relevant iwi. If regional agreements are not concluded within prescribed timeframes, the ‘default option’ will see authorisations for Gazetted areas transferred to Te Ohu/iwi, along with financial compensation, if necessary, to reflect the greater costs likely to be incurred in applying for coastal permits in such areas, as compared to AMAs. If insufficient authorisations are available, a financial equivalent will be transferred to the trustee as settlement of the Crown’s new space obligations.
Several areas have been Gazetted under these provisions in the Marlborough Sounds and one in Akaroa Harbour. No regional agreements have yet been concluded.
The New Zealand seafood industry operates within the world’s fourth largest Exclusive Economic Zone (EEZ), covering 4.4M km2 of ocean, and produces about 1% the world’s fish catch. Around 650,000 tonnes of seafood are harvested from New Zealand’s coastal waters and EEZ each year. Almost 63% of this harvest is mid- and deep-water fish, 12% pelagic (deep water), 10% inshore species (including shellfish) and 15% is from aquaculture. The sector is New Zealand’s fifth-largest export earner, with annual revenue of just over $1.5B and provides 26,000 jobs.
Iwi/Māori are said to own approximately 50% of fisheries quota through iwi, AFL and other companies. Three iwi/Māori owned (or part-owned) companies are among the five largest fishing companies in the country: AFL, SGL (50% Māori ownership) and Ngāi Tahu Fisheries Settlement Limited (100% Ngāi Tahu-owned).
Being a predominantly export-driven sector, seafood businesses suffered in 2012 from the twin impediments of depressed global commodity markets and a continuing high exchange rate against most major trading currencies. In addition, improvements in depleted ground fish stocks in the Northern Hemisphere have increased the supply of whitefish to European markets in which New Zealand hoki competes. A recovery in Chilean-farmed salmon production (after disease problems) has increased competition with New Zealand-farmed salmon (NZ Ministry for Primary Industries, Situation and Outlook for Primary Industries Update, December 2012, page 11).
The result has been static, or slightly decreased, returns despite increased production of some species. Forecasts are for little improvement in this overall picture for the next 1-2 years, at least. Despite the decreased or static returns, AFL is making a ‘special one-time taxable bonus share issue to its shareholders, paid over and above the ordinary dividend (Te Ohu Annual Report 2012, page 35).
The dominant issue for the fishing industry in 2012 drew national attention, with newspaper headlines talking of ‘slave ships’, rife with abuse, operating in New Zealand waters and largely dependent on iwi ACE (Annual Catch Entitlement – the annual tonnage of catch allocated to quota owners). The reality – while troubling – was somewhat less salacious, but the damage had already been done to New Zealand’s international reputation and the government took decisive action.
FCVs, foreign-owned and -operated vessels chartered (hired) by New Zealand companies to catch their ACE, have been part of the New Zealand industry since the early 1990s. Over the past decade or so, FCVs have made up around 50% of New Zealand’s deepwater fleet, but 80-99% of the catching capacity is of some low-value, high-volume species, such as squid, due to lower operating costs arising from factors such as exemptions from import duties in the vessels’ home countries. FCVs utilise foreign workers, who require Immigration approval to work in New Zealand. FCV arrangements are almost invariably time charters, whereby boats and crew come as a package.
Allegations of mistreatment of crew – primarily that crew are paid less than the New Zealand minimum wage – first arose in 2010. The government responded by appointing a Ministerial Inquiry Panel to investigate these allegations in late 2011-early 2012. The Panel concluded that, notwithstanding that the issues did not appear to be as widespread as had been reported, a number of improvements could be made in terms of government oversight and control.
There was even less truth to the stories suggesting that FCVs were predominantly fishing iwi-owned ACE, with Te Ohu estimating that iwi ACE could make up no more than a maximum of 17% of the catch of such vessels (Media release ‘Foreign Charter Vessel Bill threatens value of Maori Fisheries’, 15 February 2013). The regime under which FCVs operate is of vital interest to iwi, however, with no iwi operating their own deepwater fishing boats and only one New Zealand fishing company not using FCVs to harvest deepwater fisheries. In order for iwi to generate the best sustainable returns from their deepwater quota they require the continued operation of FCVs under a robust and defensible regime.
For these reasons, an Iwi Leaders’ Group (the FCV ILG) was mandated by the national Iwi Chairs’ Forum to engage with Ministers on proposals to radically reform the system under which FCVs and, to some extent, all New Zealand commercial fishing vessels, operate. Engagement centred on a number of Cabinet decisions, based on recommendation of the Ministerial Inquiry Panel, taken in May 2012 including both higher standards in respect of employment conditions for crew on FCVs (most particularly by requiring that all crew are paid in cash or into New Zealand bank accounts) and improved systems for auditing and monitoring compliance with those standards. The fundamental policy change adopted by Cabinet, however, was that every vessel operating in New Zealand fisheries waters must be flagged as a New Zealand ship from 1 May 2016.
A vessel’s ‘flag’ is roughly equivalent to a person’s nationality or the passport they travel on. A vessel’s ‘flag state’ has jurisdiction over it, wherever in the world it is operating. The decision to exclude vessels that are not New Zealand-flagged was driven by a desire to ensure that New Zealand has full jurisdiction over all vessels in its fisheries waters (including the exclusive economic zone).
The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill, which had its First Reading in Parliament in February 2013, would give effect to this policy decision as well as significantly expanding the powers and discretion of the Chief Executive of the Ministry for Primary Industries (MPI) over registration of fishing vessels so that the Chief Executive could:
The FCV ILG expressed concern that these measures would adversely impact on the value of the Fisheries Settlement assets (quota) owned by iwi as a result of reductions in the total number of ships in the deepwater fleet (reducing competition to purchase ACE), increased compliance costs putting downward pressure on ACE prices and decreased certainty discouraging investment (See, for example, the issues raised in the submission on the Bill from Te Rūnanga o Ngāi Tahu).
Reports from the FCV ILG to the Iwi Chairs’ Forum make it clear that its engagement with Ministers has not ameliorated these concerns and it encouraged iwi to make submissions on the Bill (See, for example, submissions made by Ngāti Kahungunu Iwi Incorporated and Kahungunu Asset Holding Company, Te Rūnanga a Iwi o Ngāpuhi, Te Rūnanga o Ngāi Tahu, as well as the submission by Te Ohu. Te Ohu Annual Report 2012, Te Ohu Kaimoana/Māori Fisheries Trust, pages 10-11.) The Primary Production Select Committee is due to report back to Parliament on the Bill by 21 June 2013.
Meanwhile, iwi continue the work of ensuring they meet the standards required to become a MIO – only two of the 57 iwi or iwi groupings recognised under the MFA04 were yet to achieve this status by the end of 2012 – and of concluding ‘coastline agreements’ with neighbouring iwi. Te Ohu reports that coastline agreements have been concluded in respect of more than 50% of the country’s coastline (though, to be fair, uncontested coastline around the bulk of the Ngāi Tahu and Ngāti Kahungunu rohe make up the bulk of this) and are in progress in respect of the remainder (Annual Report 2012, Te Ohu Kaimoana/Māori Fisheries Trust, pages 10-11).
Re Tuhoe Charitable Trust Board  NZHC 1952 is the first reported example of an iwi authority making use of 2011 amendments to the MFA04 which established a process for MIO status to be transferred from one entity to another. Tuhoe sought to have that status transferred from the Tuhoe Fisheries Charitable Trust to the Tuhoe Charitable Trust as part of a consolidation of its tribal affairs. Without the 2011 amendments (ss.18A to 18F of the MFA04), the transfer of settlement assets from one entity to another would be treated as an alienation of those assets, triggering the protective provisions of the MFA04 which would otherwise require an offer for sale to other iwi and to Te Ohu.
It’s worth noting that other iwi have also faced the need to transfer their MIO status, particularly as a consequence of establishing a post-settlement governance entity (PSGE), but have found a different solution. Sections 132-135 of the Ngāti Porou Claims Settlement Act 2011 deem that iwi’s PSGE, Te Rūnanganui o Ngāti Porou (Te Rūnanganui) to be recognised as its MIO, in place of its predecessor entity, Te Rūnanga o Ngāti Porou. Section 136 of that Act goes further, and exempts Te Rūnanganui from the need to hold elections every three years (in accordance with Kaupapa 1(1) of Schedule 7 of the MFA04), in favour of a requirement to hold elections at least once every four years.
In contrast, Te Rūnanga o Ngāti Hine (TRONH) is seeking to withdraw from the Joint MIO of Ngāpuhi, Te Rūnanga ā Iwi o Ngāpuhi (TRAION) with a view to establishing their own MIO, largely as a result of TRONH’s opposition to the mandating process adopted by TRAION in respect of the negotiation and settlement of historic treaty of Waitangi claims for all of Ngāpuhi (known as the Tūhoronuku proposal). The withdrawal process is proving slightly problematic for TRONH. Although TRONH originally made an application to the Māori Land Court to rule on aspects of the dispute over the withdrawal process concerning Fisheries Settlement assets under s 20 of the MFA04, and that original application continues in the MLC, TRONH have come up against issues withdrawing in relation to non-Fisheries Settlement assets. TRONH applied to the MLC seeking orders in the form of declarations relating to the decision to withdraw from TRAION and the impact of that decision on the Tūhoronuku proposal. After the MLC dismissed that application, TRONH appealed it to the Maori Appeal Court (MAC). In Te Runanga o Ngati Hine v Te Runanga a Iwi o Ngapuhi (2013) Māori Appellate Court, MB 89 the MAC upheld the MLC’s findings that:
The MAC also observed at  that
…nothing we have determined has rendered the actions of TRAION and its trustees immune from scrutiny. The Trustees have obligations to act in accordance with the Trust Deed, and their actions remain subject to the oversight of the High Court as a matter of Trust Law.
The MFA04 limits the scope for an iwi/hapū to withdraw from the representation of a Joint MIO to four cases:
While it is clear that Ngāpuhi/Ngāti Hine issues have some way to go yet, it remains to be seen whether the withdrawal process will be triggered in the other cases.
Implementation of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), and the Fisheries (South Island Customary Fishing) Regulations 1999 continued to be hampered, particularly in the North Island, by shortcomings in the regulations’ dispute resolution processes. Application of the regulations to a given area depends upon tāngata tiaki/kaitiaki being appointed for that area, but the regulations do not provide an effective mechanism for resolving objections to nominations for appointment. There are currently 377 tāngata tiaki/kaitiaki appointments under the Kaimoana Regulations as well as two appointments of committees. Sixty one of these appointments were made in 2012, along with five replacement appointments. Under the South Island regulations, 135 tāngata tiaki/kaitiaki have been appointed to manage general customary food-gathering areas, and ten appointed to manage mahinga mātaitai/mātaitai reserves (see below). It should be noted that in some cases, tāngata tiaki/kaitiaki might be appointed to manage more than one area, or a general area and a mātaitai reserve.
Notwithstanding these problems, the network of mātaitai reserves, customary fishing areas in which no fishing is allowed except with the permission of the appointed tāngata tiaki/kaitiaki, expanded from 24 to 29 in the course of 2012. In the courts, Ngāti Ruahine v Bay of Plenty Regional Council  NZRMA 523 (HC) explored the relationship between customary fishing rights recognised under the FA96 and decisions made under the RMA. Ngāti Ruahine appealed against the Environment Court upholding a decision of the Bay of Plenty Regional Council to grant consent for port dredging works. The iwi argued, unsuccessfully, that the Council and the Court failed to have particular regard to a mātaitai reserve (established under reg 23 of the the Fisheries (Kaimoana Customary Fishing) Regulations 1998) as expression of the Crown’s continuing obligations to Ngāti Ruahine under the Treaty in their decision-making.
Section 200(1) of the FA96 creates an exception to the usual power of a warranted fishery officer to enter a place for the purposes of his/her role under the Act, in respect of any Māori reservation constituted by or under the Māori Affairs Act 1953. Matene v Ministry for Primary Industries  NZHC 397 was an unsuccessful appeal against conviction for possessing undersized pāua and taking excess pāua in breach of the relevant recreational fishing regulations. The appellant submitted that all land in New Zealand is reserved for tāngata whenua Māori and all other land titles are null and void; the MLC documents describing the land entered by the fishery officer in this case as Māori freehold land (and therefore not exempted from his right of access) should not have been admitted without calling a witness. The first ground of appeal was based on Lands Claim Ordinance (Sess 1, No 2), 9 June 1841 and Ngāti Apa v Attorney-General  3 NZLR 643. The High Court, in dismissing the appeal, held that neither the Ordinance nor Ngāti Apa supported the appellant’s proposition that there was only one form of title to land in New Zealand and that all land is reserved for tāngata whenua Māori. As the appellant had not objected to the Informant’s proposal to produce stamped duplicate documents issued by the MLC without calling a witness, those documents were admissible as proof the relevant land was Māori freehold land and no useful purpose would have been served by requiring a witness from the MLC to produce title documents from Court records. It should be noted that even if the appellant in this case had been on a Māori reservation, that would not have constituted a defence to the charges, but simply meant that the fishery officer could not have entered the reservation.
In 2012, the government continued to demonstrate its support for aquaculture development by adopting an Aquaculture Strategy and Five-year Action Plan to Support Aquaculture. This followed the adoption of a revised New Zealand Coastal Policy Statement (NZCPS) in 2010 which, for the first time, included a policy specifically dealing with aquaculture. Calling on Regional Councils to “recognise the significant existing and potential contribution of aquaculture to the social, economic and cultural well-being of people and communities” by inter alia including in regional planning documents provision for aquaculture activities in appropriate places in the coastal environment (Policy 8, New Zealand Coastal Policy Statement, effective date 3 December 2010, Department of Conservation).
The new NZCPS was followed by the major legislative reforms of aquaculture referred to above, which did away with the AMA regime, as well as various other amendments to the RMA. The adoption of the Aquaculture Strategy and Five year Action Plan to Support Aquaculture, released in April 2012, can be seen as the third plank of the government efforts on this front. The Strategy and Plan do not have any legal effect per se, explicitly recognising that sector growth must be “industry-led” and that local authorities remain responsible for individual planning and resource consenting decisions. Within these parameters, however, central government agencies have a number of roles and responsibilities to fulfil.
The intent of the Strategy and Plan is that all nine central government agencies with core roles and responsibilities in respect of aquaculture will carry these out in such a way as to promote a series of identified objectives in support of sustainable aquaculture development. Somewhat uncharacteristically for such documents, the Action Plan included performance measures and it is these measurable targets allowing the industry to assign government a pass/fail mark in five years’ time, which give the Strategy and Plan some real substance.
One of those measurable targets is that, by 2016, “80% of regional coastal plans include aquaculture provisions in accordance with the policies in the NZCPS”. In support of this objective, relevant government agencies are directed to work with local authorities to identify opportunities for aquaculture growth, with the further target of having 4,000 ha of new aquaculture space developed by 2016. If achieved, this goal would translate into an iwi entitlement to 800ha of useable aquaculture space – or the equivalent in cash or some other agreed form.
Notwithstanding these various steps taken by the government to give effect to its support for aquaculture, the Environment Court’s decision in Port Gore Marine Farms v Marlborough District Council  NZEnvC 72 demonstrates the continuing tension between developmental and protective objectives in the NZCPS. The case involved unsuccessful appeals by mussel farm operators against decisions by the Marlborough District Council not to grant new coastal permits for existing marine farms. The decision is also notable for acting as a reminder of the lack of security of tenure held by marine farms, with coastal permits having to be re-applied for at the expiry of their term, notwithstanding the common reference to these as renewals.
A key factor in the Council and Court decisions to refuse consents related to the status of Port Gore as an “outstanding natural landscape”, albeit not an unmodified one, and the greater protection indicated for such landscapes in the NZCPS. It is also worth noting that permits to allow the continuing operation of the mussel farms in question was declined even though operators proposed to substantially modify the design of the farms so that the majority of infrastructure associated with them would be below the surface of the water, thereby significantly reducing their visual impact.
The Marlborough Sounds was also the focus of the other major legal development of 2012 in respect of aquaculture. New Zealand King Salmon (NZKS) has long had aspirations to expand its operations in the Sounds, including in areas in which salmon farming was a prohibited activity under the Marlborough Sounds Resource Management Plan (MSRMP). The company elected to advance these aspirations through the RMA’s provisions for “call in” of decisions involving matters of national significance, with decision-making on such matters now administered through the Environmental Protection Agency.
The applications were in respect of nine sites, only one of which was in an area in which salmon farming was permitted under the MSRMP. The applications therefore comprised plan changes with concurrent applications for resource consent in respect of eight sites (such a concurrent process being allowed for under s 165ZN of the RMA, enacted as part of the 2011 reforms), with a further resource consent application alone in respect of the ninth site.
NZKS’ application was determined by the Minister of Conservation to be of national significance and a Board of Inquiry was appointed by the Minister for the Environment to consider and determine it. That Board released its final decision on 22 February 2013.
In summary the Board’s decision was to:
The Board’s decision gives extensive consideration to the complicated matrix of legislation, plans and policies relevant to such a decision, including: the RMA, the NZCPS, the Marlborough Sounds Regional Policy Statement, the MSRMP, the Nelson-Marlborough Conservation Management Strategy and at least one iwi management plan. To the extent that the provisions of the various statutory plans and policy statements did not always agree with each other, the Board found it necessary to make “judgment … as whether the instrument as a whole has been given effect to” (Full report and decision of the Board of Inquiry: New Zealand King Salmon – Requests for plan changes and applications for resource consents at ).
Much of the focus of submitters, and thus of the Board’s decision, was on the issues of natural character and landscape. The Board accepted that the structures necessary for finfish farming had visual impacts on landscapes and seascapes and described an outstanding natural landscape as being “usually so obvious in general terms that there is no need for expert analysis. Landscape does not require precise definition. It is an aspect of the environment and includes natural and physical features and social and cultural attributes.” Adverse effects on landscape and natural character were relevant factors in the Board’s decision to decline several of the sites. Ultimately, the Board took the view that granting all of the sites would not give effect to the statutory provisions in respect of natural character, landscape, Māori cultural or ecological values as the overall cumulative effects would be too high.
The Board did, however, approve a site in Port Gore on the basis that its effects on the outstanding natural character and landscape values of the area would be outweighed by the fact that the site would play an important risk management role for NZKS due to its isolation from other sites in the Sounds. This is interesting for its contrast with the Port Gore Marine Farms v Marlborough District Council decision referred to above, in which the Environment Court refused to re-consent mussel farms in the same area largely on landscape grounds.
The Board’s decision has been appealed to the High Court by parties, including the Environmental Defence Society.
In response to the Government’s ‘Business Growth Agenda’, MPI has adopted a target of doubling the value of primary sector imports by 2025. This goal, referred to as the ‘Export Double’, is an ambitious one and it remains to be seen how it will play out in the Ministry’s regulatory and operational decisions over coming years. Certainly, MPI’s Briefing to Incoming Ministers (following the January Cabinet reshuffle which saw Hon Nathan Guy take over as Minister for Primary Industries) noted that increasing productivity would be a key focus in increasing seafood export values (Briefing for Incoming Ministers 2013, 28 February 2013). If this focus is to influence Ministry/Ministerial decisions, it could lead to increases to Total Allowable Commercial Catches for some species and relaxation in some regulatory constraints, for example, on catch methods.
The Ministry has also endorsed the Aquaculture industry’s even more ambitious target of increasing export revenues from $400M to $1B by 2025 and can be expected to continue to roll out its Five-year Action Plan to Support Aquaculture. Timeframes for concluding regional agreements between the Crown and iwi, in respect of aquaculture entitlements in some regions or to release settlement areas subject to Gazette notices, will begin to run out, thus giving the 2011 reformulation of the Aquaculture Settlement its first real test.
The consequences of not responding to consultative efforts – Greenpeace of New Zealand Inc v The Minister of Energy and Resources  NZHC 1422
Failure to establish trust obligations at Wakatū – Proprietors of Wakatū Inc v Attorney General  NZHC 1461
Tribunal declines binding recommendations for Ngāti Kahu – The Ngāti Kahu Remedies Report (Wai 45, 2013)
Tribunal to inquire urgently into availability of legal aid for Waitangi Tribunal claims – The Latimer and Piripi Claim (Wai 2374, #2.5.18)
Disposal of Waitangi Tribunal records – proposal for consultation
Review of Te Ture Whenua Māori Act 1993 – discussion document March 2013
Download the Māori Law Review April 2013 (493 KB PDF).]]>
Professor David V Williams, University of Auckland, comments on the Waitangi Tribunal’s proposal to retain some of its business records and destroy other records. The Waitangi Tribunal is currently seeking feedback on its proposed approach to records retention by Friday 26 April 2013.
Download the Tribunal’s draft appraisal report (PDF, 612 KB), draft retention and disposal schedule (PDF, 70KB) and guide to making comments on disposal recommendations here.
The Waitangi Tribunal is required under the Public Records Act 2005 to maintain a Retention and Disposal Schedule for all its records. Feedback is currently being sought on the Tribunal’s appraisal report and draft Retention and Disposal Schedule. Feedback must be received by the Tribunal no later than Friday, 26th April.
Anyone with an interest in the history of Aotearoa New Zealand, and especially of Crown/Maori relationships in that history, will be well aware of the huge treasure trove of material that has been deposited with the Tribunal since 1975. Future historians will also be vitally interested in how this Tribunal dealt with that treasure trove in its research reports, records of inquiry and reports. One would hope that the starting point for the proposed policy would be a strong bias in favour of retention and against disposal. On the other hand, the practicalities are that the immense quantity of records now amount to 804.33m in linear metres of storage. It is proposed to retain 60% of the records as public archives and to recommend for destruction the remaining 40%.
It is very important that persons interested in the integrity of our historical records should carefully peruse the items on the Schedule that are recommended for disposal. Obviously there are many duplicate copies of documents that can reasonably be destroyed. I would not be so sure about drafts of reports. It may of great interest to future researchers to ascertain how Tribunal reports were crafted and revised prior to eventual publication. Thus under Class No 5.4, I would query the disposal of working drafts of reports; under Class No 8.3, I would query destruction of draft Rangahaua Whānui reports. I would encourage a careful scrutiny of the Schedule by those willing to offer the Tribunal feedback.
Another significant issue concerns access recommendations in para 10. In a number of cases the access restrictions imposed by the Tribunal were the pre-condition for Māori claimants being prepared to divulge sensitive mātauranga Māori information to the Tribunal. After all, much sensitive information divulged to the Native Land Court in days gone by has been used and abused by all sorts of people without reference to those for whom the information was and is sacred knowledge. The proposal for the future is that, if there are requests to Archives NZ for access to sensitive Waitangi Tribunal records, the Chairperson of the Tribunal may decide whether or not to lift the access restrictions. The Chairperson would be required to consult with the group(s) on behalf of whom the restricted information was filed. Some may be of the view that a hapū or whānau should have a continuing right to veto such access and if so, then they should give the Tribunal that feedback.]]>
Download the panel’s discussion document here (PDF 1.2 MB).
The proposals are far reaching. An in-depth article on the panel’s work will feature in a forthcoming issue of the Māori Law Review.]]>
Partial privatisation no material impairment to remedying Treaty breaches – New Zealand Maori Council v Attorney-General  NZSC 6
Māori interests in natural resource management - 2012 in review
Future management of Tongariro National Park – Te Kāhui Maunga: The National Park District Inquiry Report
New Zealand’s “Lost Cases” – Unreported colonial case law on the internet
Download the Māori Law Review March 2013 (361 KB PDF).]]>
Download New Zealand Māori Council v Attorney-General  NZSC 6 here (353 KB PDF).
|Proposed asset sale no material impairment to ability to remedy any Treaty breach|
|Date||27 February 2013|
|Case||New Zealand Māori Council v Attorney-General (353 KB PDF)|
|Citation|| NZSC 6|
|Judge(s)||Elias CJ, McGrath, William Young, Chambers and Glazebrook JJ|
|Earlier/later decisions||New Zealand Māori Council v Attorney-General  NZSC 115; New Zealand Maori Council v Attorney-General  NZHC 3338|
|Legislation cited||State-Owned Enterprises Amendment Act 2012; Public Finance Act 1989, s 45Q, Part 5A; State-Owned Enterprises Act 1986, s 9; Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, s 64;|
|Cases cited||The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012); New Zealand Maori Council v Attorney-General  1 NZLR 641; New Zealand Maori Council v Attorney-General  1 NZLR 513 (PC); New Zealand Maori Council v Attorney-General  3 NZLR 140 (CA); Te Runanganui o Te Ika Whenua Inc Society v Attorney-General  2 NZLR 20 (CA).|
|Overview and result||Appeal dismissed from High Court refusal of judicial review sought of decisions preliminary to partial privatisation of State-Owned Enterprise power generating company with interests affecting Waikato River. “Partial privatisation of Mighty River Power will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Māori interests in the river[.]” (At .) Proposed sale of shares in power generating company is reviewable for consistency with the principles of the Treaty of Waitangi (disagreeing with High Court on this point).|
Mighty River Power Ltd, currently fully owned by the Crown, has water permits issued pursuant to the Resource Management Act 1991 to operate hydro generating power facilities along the Waikato River.
In 2012, Parliament enacted amendment legislation to enable the Crown to sell up to 49 per cent of its shares in this company.
The State-Owned Enterprises Amendment Act 2012, when it comes into effect, will remove Mighty River Power from being a State enterprise in the State-Owned Enterprises Act 1986. Mighty River Power will become a mixed ownership model company pursuant to the Public Finance Act 1989.
The Public Finance (Mixed Ownership Model) Amendment Act 2012 inserted a new Part 5A into this 1989 Act. Part 5A includes section 45Q which reads:
(1) Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi); (2) For the avoidance of doubt, subsection (1) does not apply to persons other than the Crown.
Section 45Q(1) is identical to section 9 of the State-Owned Enterprises Act 1986.
The overriding issue in this case Supreme Court case was whether the sale of up to 49 per cent of the shares in Mighty River Power will be consistent with the principles of the Treaty of Waitangi? The New Zealand Maori Council argued no; the Crown argued yes.
This case followed a successful urgent hearing in the Waitangi Tribunal.
The New Zealand Maori Council applied to the High Court for judicial review of the Government’s action to proceed with the partial share sales. In December 2012, the High Court held that the Crown’s decision to proceed with the sales were not reviewable.
A week later the Supreme Court granted the Maori Council and the Waikato River and Dams Claim Trust leave to appeal this judgment directly to the Supreme Court.
The appeal was heard on 31 January – 1 February 2013.
The Supreme Court issued its unanimous single judgment on 27 February 2013.
The Supreme Court’s single judgment (consisting of 151 paragraphs) provides an overall win for the Crown (at ): “the partial privatisation of Mighty River Power will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Maori interests in the river.”
But there is also a substantive win for Maori: “the proposed sale of shares (on which the claim of material prejudice is based) is reviewable for consistency with the Treaty principles” (at ).
The Supreme Court’s judgment addresses the 5 issues raised by the Maori appellants.
This issue goes to the heart of the relationship between several statutes including the State-Owned Enterprises Act 1986, the State-Owned Enterprises Amendment Act 2012, and Public Finance (Mixed Ownership Model) Amendment Act 2012. The Maori appellants argued that the Crown is required to act consistently with the Treaty principles when selling the shares because this would be an exercise of the Crown’s powers under the new Part 5A of the Public Finance Act, therefore making relevant section 45Q. The Crown, relying on the New Zealand Maori Council v Attorney-General (Commercial Radio Assets case)  3 NZLR 140 (CA), rejected this assertion and argued instead (at ) that the “power of the Crown to sell shares was an incident of their ownership and shareholder powers under the common law and the Companies Act 1993.”
The Court agreed with the Maori appellants on this issue. The Court held that there was a “crucial difference” between the Commercial Radio Assets case and this case because “In the present case, the continuing statutory restraint upon the Crown when acting in respect of a mixed ownership company must be ascertained in light of the continuation of the Treaty protection provision in s 45Q” (at ).
According to the Court, the Crown is presently under a statutory restraint because of section 9 of the State-Owned Enterprises Act and the Crown will continue to be under a statutory restraint because of section 45Q of the Public Finance Act. This transition is, according to the Court, “seamless” (at .
The Court stressed that s 9 jurisprudence has established that section is “of great authority and importance to the law concerning the relationship between the Crown and Maori” (at ) and “Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance” (at .
Because of the Court’s finding on issue 1, the Court quickly dismissed this issue.
Section 64, in summary, records an acknowledgment that the Crown and Waikato-Tainui have different concepts and views regarding relationships with the Waikato River, and that the Crown, a Crown entity, state enterprise, or mixed ownership model company must engage with Waikato-Tainui in accordance with the Kiingitanga Accord principles if action is proposed to create or dispose of a property right or interest in the Waikato River.
The Maori appellants argued that the Crown must engage with Waikato-Tainui before pursuing any share sales.
The Court disagreed (at ):
“We are unable to accept that the partial privatization of Mighty River Power constitutes disposal of property or interests held by the Crown in the river. The rights and the associated land in the river bed held by Mighty River Power (which are undoubtedly ‘property’) are not being disposed of and will continue to be held by it.”
The Maori appellants argued that the Crown’s consultation with Maori following the recommendations of the Waitangi Tribunal in 2012 was “too rushed” (at ).
The Court disagreed: “The fact that the Crown ultimately rejected the Waitangi Tribunal suggestion as inappropriate is not a basis from which it can be inferred that the consultation was empty or pre-determined” (at ).
According to the Court, this is the substantive issue of the case. In reference to the New Zealand Maori Council v Attorney-General  1 NZLR 513 (PC) [Broadcasting Assets case], the Court stated:
“In deciding whether proposed Crown action will result in ‘material impairment’, a court must assess the difference between the ability of the Crown to act in a particular way if the proposed action does not occur and its likely post-action capactiy. So impairment of an ability to provide a particular form of redress which is not in reasonable or substantial prospect, objectively evaluted, will not be relevantly material. To decide what is reasonable requires a contextual evaluation which may require consideration of the social and economic climage” (at ).
The Court then provided this 3 point test to determine this issue (at :
“(a) Before intervening, the Court must be brought to the conclusion that the proposed privatisation is inconsistent with Treaty principles;
(b) There will be inconsistency, if the proposed privatisation would ‘impair, to a material extent, the Crown’s ability to take the reasonable action which it is under an obligation to undertake in order to comply with the principles of the Treaty’; and
(c) The Court must address this issue directly and form its own judgment, along the lines discussed in ”.
The Court then proceeded to discuss a range of factors, including the evolution of the statutory regimes for controlling the use of water, and concluded (at ) that the current Resource Management Act “substantially improved the recognition of Maori in relation to the management of waters” (at ).
The Court discussed the initiatives that the Crown has implemented in recent years to engage with Maori about water management and water use (e.g. see ) and recorded statements made by the Crown, the Deputy Prime Minister and the Attorney-General that recognise Maori do “have interests and rights in relation to particular waters” (at ) and the partial sale of shares “will not have a ‘chilling effect’ on the willingness of the Crown to provide appropriate rights recognition and redress” (at ). The Court then cited Treaty of Waitangi settlement legislation specific to water as proof that the Crown, in recent years, has become willing to negotiate new management and use regimes for water that better recognise Maori interests.
The Court then concluded this discussion (at ) by emphasising the differences between this case and the New Zealand Maori Council v Attorney-General  1 NZLR 641 (CA) case as essentially:
“The Crown will retain substantial capacity to provide redress in the form of shares, if that is seen as appropriate. The Crown will retain at least 51 per cent of the shares and therefore majority control over the company. And, to the extent that the generating assets include land, they remain subject to the resumption regime. As well … in the current legal and social environment, Maori can be confident that their claims will be addressed, something which was not as clear in 1987 as it is now.”
The Court also stressed the difference between ownership of land and water rights limited to 35 year terms under the Resource Management Act. The 35 year term of water permits gives opportunities for review on their renewal. The Court thus accepted the Crown’s argument that the protection of Maori in waters comes close to the memorialisaton protection put in place for land (at ).
The Court dismissed the appeal:
“ As is apparent, we are prepared to accept that privatization may limit the scope to provide some forms of redress which are currently at least theoretically possible. But in assessing whether this amounts to ‘material impairment’, regard must be had to (a) the assurances given by the Crown, (b) the extent to which such options are substantially in prospect, (c) the capacity of the Crown to provide equivalent and meaningful redress, and (d) the proven willingness and ability of the Crown to provide such redress.”
The Court did not award costs against the unsuccessful Maori appellants because they had succeeded on an “important point of principle, namely that the Crown was bound to comply with the principles of the Treaty before deciding to sell the shares” (at ).
This is a gracious decision. And it is a thoughtful one too. And clever. The Court has:
The decision deserves a very close read and careful reflection. There are weak areas and over the next few days, weeks and months many will explore these. For example, while the Court has readily stated that “the Resource Management Act currently provides substantial recognition of Maori interests” (at ), the Court did not engage with the relevant case law. This case law shows a very clear trend that Maori are rarely successful in relying on these provisions to protect the wairua and mauri of water.
Even though the courts often do acknowledge the importance of the Maori provisions in the Resource Management Act, this Act gives equal weight to many other values and interests and it these other values that often trump Maori interests.
In the end this was a case prepared for and heard under urgency. There are issues that have been skimmed over, like this one.]]>
Looking back over 2012, the dominant theme of Resource Management Act 1991 cases dealing with Māori interests was consultation. Individually, the cases provide interesting commentary on common themes. For example the Wakatu case discussed below assesses the adverse effects of water extraction on the mauri of the Motueka River. Together the cases confirm that effective engagement with tangata whenua in relation to natural resources remains a challenge for many.
Even though consultation is not a mandatory requirement for resource consent processes under the Resource Management Act (with the exception of interrelated statutes such as section 62(3) of the Marine and Coastal Area (Takutai Moana) Act 2011), the Board of Inquiry appointed to hear and determine the plan changes and resource consent applications made by the New Zealand King Salmon Company (the King Salmon Inquiry) reiterated the importance of consultation in their final decision:
…it assists the consent authority and the court to understand the extent to which (amongst other things) assessment of effects on the environment might have been undertaken. That is, it assists the consent authority to decide whether it is confident that actual and potential effects are adequately understood, assessed, and dealt with…(at  citing Crest Energy Kaipara Ltd & Ors v Northland Regional Council)
Iwi consultation [in particular] is important to enable decision-makers to understand the cultural effects of an activity, particularly as regards the matters falling within sections 6(e), 7(a) and 8 of the RMA. 
The Board was clear that their assessment encompassed the physical and the spiritual:
Our task in the assessment of cultural impacts is to focus on:
[a] The breadth of meaning of kaitiakitanga as tangata whenua understand it to be in respect of the areas affected by the proposal; and
[b] The breadth of relationship of tangata whenua to the particular resources and how that relationship may be affected. 
The spiritual relationship that tangata whenua hold with their rohe moana, which includes the mauri of its waterways, is less easily assessed, and subject to varying interpretations. Where there is uncertainty about the environmental effects of the proposal, the spiritual and cultural welfare of the whanau, hapū and iwi is also at risk. [emphasis added] 
In the High Court decision of Greenpeace of New Zealand Inc v Minister of Energy and Resources and New Zealand  NZHC 1422, Gendall J stated:
Consultation, and good faith listening to concerns, are a two way street, with obligations on Māori interests and the Crown. Each have obligations on the other. 
In that case (now on appeal to the Court of Appeal), Greenpeace and Te Whanau-a-Apanui sought judicial review of the Minister of Energy and Resource’s decision to grant Petrobras a permit to explore for petroleum in the Raukumara Basin. One of the grounds argued by the applicants was that the Minister had not consulted adequately with Te Whanau-a-Apanui according to the principles of the Treaty of Waitangi. The Crown’s response was that they had made numerous efforts over a period of time to consult with Te Whanau-a-Apanui but that Te Whanau-a-Apanui had either ignored their efforts or refused outright to engage with the Crown.
The Court took the view that the Crown had made all reasonable and good faith efforts to consult but the refusal of Te Whanau-a-Apanui to participate did not mean they could subsequently challenge the process as not dealing with their particular concerns – they should have raised their concerns in the consultation process not in the court process:
In choosing not to actively participate substantively or respond to the request to consult, it cannot complain now. 
The ‘two way street’ sentiment was also adopted in the King Salmon Inquiry.
What these cases show is that it is important for parties who consider themselves affected by a proposal to participate in the related consultation process (if one is available) even if they are fundamentally opposed to the proposal or would like the consultation timeframes extended.
Consultation is rarely a straightforward process but it should be kept in mind that the purpose of consultation is not to reach consensus – it is fundamentally about gathering information with an open mind to changing the proposal in light of new and relevant information. When tangata whenua are involved, an important aspect is recognising and respecting their mana.
However, even the early step of identifying who should be consulted can be challenging as the Court acknowledged in Hoete v Minister of Local Government  NZEnvC 267 where the Minister of Local Government was required to consult with the tangata whenua and the iwi authorities of Motiti Island:
…a great many people whakapapa to the Island. Although Te Patuwai and Tauwhao are two prominent groups, there are significant issues as to how wide this group of persons needs to be [for the purposes of consultation]….Overall then there is…a wide range of groups. From the Minister’s point of view therefore, clarifying the group to be consulted beyond those persons registered on the titles to the property is a matter of considerable complexity…, .
In the reviewed cases, courts also tended to look at the process of consultation from the perspective of tangata whenua. In Trustees of Tūhua Trust Board v Minister of Local Government  NZEnvC 202, the Court was concerned at the Minister of Local Government’s failure to consult with the Tūhua Trust Board on whether a district plan was required for Tūhua Island (the Minister was acting as the territorial authority as the Island did not fall within the boundaries of a territorial authority):
[The Court] consider[s] that the Minister failed to consult about whether a plan was required for Tūhua. We are concerned that there may have been a duty for the Minister to meet kanohi ki te kanohi (face-to-face) with the representatives for the iwi (in this case, the Trustees) at the least. We are in no doubt that the owners and trustees of Tūhua saw this failure as a slight to their mana. 
Over the course of the proceedings, the Trust Board, the plan drafters and the Department of Internal Affairs worked together to amend the plan to reflect the views of the Trust Board. By the close of the hearing, the Court recognised that the Plan had significantly improved following the Trust’s involvement but ordered further minor improvements including a new introduction, preferably in te reo Māori, that clearly identified the Trustees as holding kaitiakitanga and rangatiratanga in respect of the Island. It also ordered that the Trust Board be given “the maximum level of flexibility possible commensurate with health and safety obligations”. The Court ordered the Minister to consult with the Trust Board to finalise the changes and that the consultation and Court costs should be met by the Crown.
In Wakatu Inc v Tasman District Council  NZRMA 363 (ENC) the Court stated that the manner in which initial consultation had been carried out may have had adverse effects on the appellant’s ability to exercise kaitiakitanga over Motueka River. Wakatu was an appeal against an application by Tasman District Council to take ground water from an aquifer connected to the Motueka River. The appellants argued that the mauri of the river would be desecrated by the transport of water away from its original catchment and this would subsequently impact the ability of tangata whenua to exercise kaitiakitanga and rangatiratanga over their resources.
The Court adopted the orthodox evidential approach in determining whether the mauri of the River would be adversely effected. This approach was set out in the Environment Court’s decision in Winstone Aggregates Limited v Franklin District Council (A80/2002):
In any enquiry involving concepts of tikanga Maori there are three states of inquiry before the Court. The first is to determine, as best as we are able in the English language, the meaning of the concept. The second is to assess the evidence to determine whether it probatively establishes its existence and relevance in the context of the facts of a particular case. If so, the third is to determine how it is to be recognised and provided for.
At all stages of inquiry the decision-maker is required to consider the evidentiary basis and burden required. There is an evidentiary burden on a party who makes an allegation to present evidence tending to support the allegation. , 
This statement reaffirms the importance of probative evidence put before the decision-maker.
In Wakatu, the Court observed that in the Waihi Gold decision (EnvC A146/1998) (relied on by counsel for the appellants), the finding of more than minor adverse environmental (physical) effects enabled the concept of mauri to be weighed against positive effects. The Court found no evidence that the proposed abstraction or use of water would diminish the life supporting capacity of the River or its vitality or its ability to exist. The Court found that the biophysical effects of the proposed activity were “insignificant” and that any metaphysical effects could be remedied by imposing conditions on the consent. Accordingly, the Court approved the consent with the addition of conditions as outlined below.
The Court was critical of the initial consultation process carried out by the Council and this was compounded by a number of factors including the history of the Crown’s treatment of the appellants in relation to the River. While the Court was careful to state that these failures should not result in the refusal of part of the consent as a penalty, the Court in Wakatu granted the application subject to conditions to remedy those effects, namely conditions that would ensure iwi views were “fully provided for in the implementation and monitoring of the proposal.” . The Court recommended that consultation also be undertaken on the “proper kawa to be observed in implementing the scheme.” .
Even where clear statutory guidance is provided, applicants can find that achieving an effective consultation process is hampered because of business factors. In the King Salmon Inquiry, the Board observed that:
The relevant provisions set out in the statutory documents [including Policy 2 of the Coastal Policy Statement] provide a clear direction around consultation and engagement with tangata whenua to ensure that consultation is early, customary values and views of tangata whenua are heard and understood and that the function of kaitiakitanga is taken into account…of particular importance is achieving engagement that is early, meaningful and in accord with the tikanga of the tangata whenua of the place. , 
Although King Salmon had rightly placed great weight on early engagement with tangata whenua, the commercial value of the proposed aquaculture sites prevented the company from revealing the exact location of the sites in their consultation process. This was clearly problematic for some of the groups who were consulted but the Board took into account the hearing process (where the sites were revealed and could be commented on) as well as the genuine efforts and early engagement from the company in finding that although the consultation process was not ideal, the Board had heard enough information about the views of tangata whenua to make an informed decision. It should not be taken from this case that commercial sensitivities would, in all cases, provide for limitations in consultation (see, for example Waikato Tainui Te Kauhanganui Inc v Hamilton City Council  NZRMA 285 where the Council’s statutory obligation to consult overrode any commercial concerns it had in revealing information to Waikato Tainui ahead of public notification).
These 2012 cases further illustrate what the Courts consider to be best practice consultation under the RMA.
Understanding what statutory obligations apply, whether under the RMA or associated statutory documents such as the Coastal Policy Statement, is only the first step. It is imperative for potential applicants under the RMA to develop a comprehensive consultation strategy for understanding tangata whenua views and concerns at the outset.
Early and genuine engagement with tangata whenua matters in the eyes of the court. A consultation strategy should enable the applicant to develop a robust relationship with tangata whenua well ahead of the lodging of any application (or for Councils well ahead of notifying any plan changes or variations) and lay a pathway to a smoother hearing process.
Applicants need to be informed, prepared and proactive.]]>