Criminal law, the use of force in defence of property – standing up for a fragile lake – Taueki v R  NZSC 146
Status of land – Jensen v Registrar General of Land  NZHC 3525
Māori interests in natural resource management - 2013 in review
He Papakupu Reo Ture: A Dictionary of Māori Legal Terms – Pānia Papa
The political ecology and political economy of the Indigenous land titling ‘revolution’ in Australia – Jon Altman]]>
2013 featured a number of cases grappling with the perennial issue of how to reconcile infrastructure and other developments, on the one hand, with providing for the relationship of tangata whenua with significant sites on the other.
This article summarises key decisions from 2013 under the Resource Management Act 1991 (“RMA”) and the Historic Places Act 1993 (“HPA”), looks at further developments in relation to natural resources in the context of historical Treaty settlements, and notes a number of ongoing topics to monitor as 2014 unfolds.
Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269
Download Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269 here.
Section 6(e) of the RMA requires decision-makers to recognise and provide for “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”, as a matter of national importance.
At issue in Heybridge was the nature and degree of evidence required to trigger s 6(e); in particular, the case considered whether an honestly held belief that an ancestor may be buried within a site, supported by credible evidence, was enough to establish a relationship for the purposes of that provision.
In 2007 the Bay of Plenty Regional Council declined consent to subdivide Heybridge’s 44-hectare site because, among other reasons, earthworks would adversely affect the relationship of Pirirakau with Tahataharoa, a wider area of ancestral land which includes the site believed by Pirirakau to be the burial place of Tutereinga, their eponymous ancestor.
Heybridge appealed to the Environment Court, without success. On further appeal, however, the High Court (Heybridge Developments Ltd v Bay of Plenty Regional Council (2011) 16 ELRNZ 593) accepted Heybridge’s submission that:
If Pirirakau alleged that s 6(e) required the Court to recognise and provide for Pirirakau’s relationship with the site on the basis of waahi tapu, it was for Pirirakau to establish the existence of waahi tapu. It was not for Pirirakau simply to assert a belief and for the appellant to be required to disprove it.
Peters J expressed the view that “a party who asserts a fact bears the evidential onus of establishing that fact by adducing sufficiently probative evidence. The existence of a fact is not established by an honest belief. I am satisfied that the Court erred as a matter of law in this respect”. The case was remitted back to the Environment Court for reconsideration.
In the ensuing Environment Court proceeding, all counsel agreed that the High Court had not determined “whether section 6(e) extended to recognition and provision of a relationship between Pirirakau and their culture and traditions with Tahataharoa based predominantly on a belief. Rather, it was for the Environment Court to reconsider if and how the relationship of Pirirakau with the site should be provided for under section 6(e)”.
After reviewing the authorities, the Environment Court held that there is “no authority for the blanket proposition that a relationship under s 6(e) could not be based on an honest belief. Rather (…) the cases demonstrate that “oral assertions of a belief supported by consistent and credible evidence tending to corroborate the authenticity of the belief” can sustain a relationship for the purposes of section 6(e) of the RMA.”
The Environment Court concluded that there was sufficient evidence, based on Pirirakau’s honest belief and supported by evidence of oral traditions, to establish a relationship with the site in s 6(e) terms.
That finding did not lead the Court to uphold its previous decision and decline consent, however. Rather, based on evidence that the burial site could be anywhere within the wider Tahataharoa area, a majority of the members of the Court held that the development could proceed (under appropriate conditions) as there was a sufficiently low probability of the burial site being disturbed.
Verstraete v Far North District Council  NZEnvC 108
Download Verstraete v Far North District Council  NZEnvC 108 here.
The Council had declined consent for the Verstraetes to construct a dwelling that breached visual amenity and earthworks provisions of the district plan, on the slopes of a prominent hill known as Rangitane or Waitete.
While one local hapū (Ngāti Rehia) had no issue with the proposal to build above a certain height plane, another (Ngāti Mau) considered that to do so would detrimentally affect its relationship with Rangitane, which is considered to be a wāhi tapu and taonga of the hapū.
The Environment Court, on appeal, heard expert cultural evidence (including that of a witness not from the area) about the competing traditional interests in the hill, the nature of Māori relationships with it – including whether the hill was a taonga or a wāhi tapu – and the effects of the development on those relationships.
While finding it unnecessary to determine which hapū held mana whenua over the site, the Court analysed the expert cultural evidence and found there was insufficient evidence to support the claim by Ngāti Mau that the summit of Rangitane is a taonga or a wāhi tapu. The Court therefore granted the application, on the basis that it would not adversely affect a site of cultural significance to Māori.
Ngā Hapū o Poutama v Taranaki Regional Council & Anor  NZEnvC 254
Download Ngā Hapū o Poutama v Taranaki Regional Council & Anor  NZEnvC 254 here.
This case involved an appeal to the Environment Court by Ngā Hapū o Poutama against a decision of Taranaki Regional Council to grant the NZ Transport Agency resource consent to remediate or reconstruct a length of embankment above the Tongaporutu Estuary on State Highway 3.
Ngā Hapū o Poutama contended that those works would adversely affect a wāhi tapu comprising parts of the Tongaporutu River, a tauranga waka adjacent to the proposed works, and a nearby ancestral pā and related urupā.
There was no dispute about the existence of the wāhi tapu, but on the evidence the Court considered that the adverse effects on the site were not of such a nature or level that the works should be disallowed. Nor did the Court agree with the appellant that there was a credible alternative to the works. The Court therefore upheld the Council’s grant of consent.
One aspect of the case that the Court found “highly concerning” was what it described as a “demand [by Ngā Hapū o Poutama] for payment of $100,000 for NZTA having received the benefit of advice from Poutama during consultation”. “If parties entering into consultation in good faith are to be confronted with demands of that sort”, the Court observed, “they might reasonably be reluctant to commence the process in the first place.”
Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council & Anor High Court  NZHC 2319, 6 September 2013
This case was reported in the October 2013 edition of the Māori Law Review ((2013) October Māori LR 8-10).
In short, a landowner (Waikanae Christian Holiday Park Inc) took umbrage at a decision by the Māori Heritage Council of the New Zealand Historic Places Trust / Pouhere Taonga to extend, on application by tangata whenua, the boundaries of an area registered as a wāhi tapu.
The High Court dismissed the judicial review application, however, on the grounds that there was nothing to suggest that the decision-maker had acted outside its statutory powers or failed to follow proper processes when reaching its decision.
Ngāti Uru Hapū v New Zealand Historic Places Trust Pouhere Taonga  NZEnvC 22
Download Ngāti Uru Hapū v New Zealand Historic Places Trust Pouhere Taonga  NZEnvC 22 here.
Ngāti Uru appealed the grant by the Trust of a general authority, under section 14 of the HPA, allowing the applicant (Mr Cook) to destroy or modify archaeological sites in constructing an access track.
The Environment Court acknowledged the underlying concerns of Ngāti Uru about potential effects on sites of significance, but noted that there were “serious disputes” between the experts as to the actual nature and location of many of them.
The Court imposed as a condition on the authority a protocol, largely agreed between the parties, providing for monitoring of the works by tangata whenua and setting out operational procedures and communications requirements.
The Court was satisfied that the authority, in light of the protocol condition, met the tests under ss 12 and 14(2) of the HPA, and that granting it on appropriate conditions would duly provide for the relationship of Māori with their sites (as well as the values of the known sites).
Ngāti Rāhiri Hapū o Te Atiawa (Taranaki) Society Inc v New Zealand Historic Places Trust  NZHC 2746
Similarly, this case (reported in the November 2013 issue of the Māori Law Review ((2013) November Māori LR 1-5) concerned an appeal against a decision of the Historic Places Trust to grant a s 14 general authority, in this instance to Todd Taranaki Limited, relating to construction of a gas pipeline in the Tikorangi district.
The project works themselves were not opposed by tangata whenua; rather, the appellant hapū (Ngāti Rāhiri) took issue with two conditions on the authority, that:
An initial appeal by Ngāti Rāhiri to the Environment Court was unsuccessful, but resulted in words being added to the relevant conditions to clarify that the Trust had no view as to the mana whenua status of either hapū.
Ngāti Rāhiri appealed further to the High Court, again unsuccessfully. The Court held that the HPA does not require the Trust to assess the relationships of Māori with their ancestral lands so as to determine and accord precedence between claimed interests.
Te Puna Mātauranga o Whanganui v Wanganui District Council  NZEnvC 110
Download Te Puna Mātauranga o Whanganui v Wanganui District Council  NZEnvC 110 here.
This case concerned an application by Universal College of Learning and Te Puna Mātauranga o Whanganui for consent to demolish a building that had formerly housed the Māori Land Court, and to establish and operate an iwi tertiary institute on the site.
An earlier decision of the Environment Court (Universal College of Learning v Wanganui DC  NZEnvC 291) had declined consent to demolish the heritage building, which was built in 1922 and was listed in 2008 as a Category 1 Historic Place by the Historic Places Trust. At the time of that decision there was uncertainty about the applicants’ plans to replace it with another building.
Perhaps because of that history, the renewed application was not determined at first instance by the Council, but rather was referred directly to the Environment Court under s 87G of the RMA.
The evidence put forward by the applicants to support demolition of the building included that it had negative connotations for Māori, as it had housed the Native Land Court from the 1860s until the 1920s and thus symbolised the conversion of customary tenure into individual freehold titles, thereby facilitating the alienation of very significant areas of land from Māori ownership.
The evidence put before the Court by opponents to the development also included considerable discussion about the ability of the exterior of the building to be retained and incorporated into a modified proposal.
In considering the positive and adverse effects of the proposal, the Court acknowledged the obvious cultural and other benefits that the iwi tertiary institute would bring, but declined the application because it would not accord with the requirement in section 6(f) of the RMA to provide for the protection of historic heritage from inappropriate development.
It is clear from the decision that the Court’s focus was drawn to the prospects of an alternative development – involving retaining aspects of the heritage building and adapting it for the intended use – and that the Court favoured that alternative over the works proposed by the applicants. The Court accepted that the applicants would have to pay a premium to retain and adapt the building, and observed that “that is the all but inevitable consequence of recognising and providing for … the protection of historic heritage from inappropriate … use and development.”
As for the applicants’ argument that negative connotations with the building diminished its heritage values, the Court held that “we would require much stronger and direct evidence about such sentiment as a basis for rational decision making, and no authority has been cited to justify such an approach.”
It remains to be seen whether the applicants will seek consent for the revised proposal favoured by the Court.
2013 was another busy year for the Crown and claimant groups, with deeds of settlement signed by Tūhoe, Ngāti Haua, Maungaharuru-Tangitu Hapū, Ngāti Tama ki Te Tau Ihu, Ngāti Rārua, and Ngāti Pūkenga. (See the review of Treaty settlement legislation before the House of Representatives in 2013: (2013) December Māori LR 8-27.)
The signing ceremony between the Crown and Ngāti Tama ki Te Tau Ihu at Onetahua Marae in Golden Bay marked the final deed of settlement for historical claims in the South Island.
Several associated settlement bills were also introduced to Parliament. The House of Representatives sat through extended hours in October to pass the Te Urewera-Tūhoe Bill, Ngāti Haua Claims Settlement Bill and Ngāti Koroki Kahukura Claims Settlement Bill through their first readings.
Frameworks for co-management of natural resources continue to form an important part of the redress negotiated by iwi and the Crown. The Tūhoe settlement will create a legal identity for Te Urewera itself and establishes a governance board, comprising Crown and Tūhoe representatives, to manage and protect the interests of Te Urewera. In the context of the Tapuika settlement, the Kaituna River Authority – Te Maru o Kaituna – is a co-governance entity to be established with the purpose of restoring, protecting, and enhancing the health of that river. Discussions between the Crown and iwi Māori continue on other significant natural resource settlements, including the Whanganui River negotiations.
A broad range of ongoing litigation and regulatory developments with the potential to affect Māori progressed during 2013 and will continue to generate discussion throughout 2014 (and beyond, in many cases). Here is just a small selection.
See the March 2013 issue of the Māori Law Review for the 2012 review of Māori interests in natural resource management ((2013) March Māori LR 9-13.)]]>
He Papakupu Reo Ture: A Dictionary of Māori Legal Terms
Māmari Stephens and Mary Boyce
LexisNexis New Zealand 2013 (ISBN: 9781927183748)
Reviewed by Pānia Papa – Ngāti Korokī-Kahukura, Ngāti Mahuta.
He papakupu ngā tino hoa o te hunga whakamāori kōrero, ā, kua tau mai tēnei papakupu hei hoa mō ngā papakupu pūtaiao, pāngarau hoki kei taku paenga pukapuka. He rawe ki a au te takoto o ngā kōrero o roto i te Papakupu Reo Ture, he māmā te whai, he mārama hoki ngā tohu i te taha o te kupu e whakaatu mai ana i ahu mai i tēhea puna kōrero ia kupu. Ko tētehi anō painga o tēnei papakupu, ka homai he tauira i te taha o ngā kupu e kitea ai te horopaki i hua mai ai te kupu. Ka nui te whaihua o tēnei papakupu ki te hunga whakamāori kōrero, ki te hunga rānei e mahi ana i roto i ngā tūranga ā-iwi, ā-Kāwanatanga hoki e whai pānga ana ki ngā āhuatanga o ngā kokoraho whenua ki Te Roopu Whakamana i Te Tiriti o Waitangi, ki ngā Kaunihera, ki ngā Kōti anō hoki.
Every translator has a stack of dictionaries filling their bookshelves, and this one is a welcome addition to mine, joining the other subject specific Science and Mathematics dictionaries already there. The layout of terms, examples and reference notes in ‘A Dictionary of Māori Legal Terms’ is excellent. It is easy to follow and the references accompanying each term clearly indicate the source of that term. Another beneficial element of this dictionary is that it provides contextual examples of how the term has been used in legal contexts, from the corpus of legal documents. This dictionary will not only be hugely beneficial for translators, but also for people working in tribal authorities or governmental positions working with Waitangi Tribunal claims, Councils and Courts.
Pānia Papa – Ngāti Korokī-Kahukura, Ngāti Mahuta.
MSocSci (Waikato), RSA CTEFLA (Cambridge), Tītohu Whakamāori (Te Taura Whiri i Te Reo), Te Panekiretanga o Te Reo (Te Wānanga o Aotearoa)
Kaiwhakamāori ā-tuhi, Kaiwhakataki Pouaka Whakaata, Mātanga Reo i te Ao Pāpaho, Kaiako i Te Panekiretanga o Te Reo me ngā Kura Reo o te motu, Kaiwhakangungu Kaiako, Kaiwaihanga Marau, Rauemi Whakaako anō hoki.
Translator, Television presenter, Māori Language Consultant in Broadcasting, Tutor in Te Panekiretanga o Te Reo and national Kura Reo, Professional Development Provider for Teachers, Curriculum and Resource designer.]]>
This paper begins with a brief grim history of indigenous continental dispossession and its colonial logic. I then present recent and more optimistic maps of re-possession, what I term an Indigenous land titling ‘revolution.’ I also present some mapping of the contested values of various resources on indigenous lands. As the maps show, there is a clear tension between the frames of political economy and political ecology on how newly re-acquired lands and resources might be productively deployed. This is a tension between national growth (as measured by gross domestic product dependent on industrial extraction of minerals and commodity exports) and local and regional development for Indigenous land owners. This tension is based on a different focus on livelihoods and wellbeing and the potential for the commodification of the provision of environmental services. I use the frame of economic hybridity in an attempt to both elucidate and mediate this tension at local and regional levels, and the ecological economics framework to do similar work in national and global debates.
In The Cartographer’s Eye: How Explorers Saw Australia, Simon Ryan shows how the ideological construction of Indigenous Australians was used as justification for legally/illegally and often violently dispossessing them of their lands, from 1788 up to the 20th century. 2 This was despite some accurate empirical descriptions of how Indigenous societies owned and used the land and its resources according to their laws and customs. Interestingly Ryan’s early cartographers rarely produced cadastral maps except for Matthew Flinders who quickly circumnavigated the continent in a race against Nicolas Baudin and produced a surveyed map of sorts that allowed the entire Australian continent of 7.7 million sq kms to be claimed by the British crown.
This land grab was justified at the time for a variety of reasons including:
Historian Patrick Wolfe uses ‘settler colonial’ theory to explain the links between dispossession and the project to eliminate native societies. Wolfe argues that the principal settler colonial logic of market capitalism was to gain unrestricted access to territory; he notes further that as European colonisers came to stay, invasion and dispossession is both a structural and ongoing process. ‘Invasion’ is not some historical event restricted to a particular place like Sydney at a particular time like 1788. All the natives had to do to get in the way was to stay at home and compete for resources. 4
Settler colonialism’s negative dimension is its goal to dissolve native societies, but more positively perhaps an option emerges from the logic of elimination. This is the possibility of integration of indigenous peoples as citizens of the Australian nation state. This is often referred to today as ‘normalisation’ or ‘mainstreaming,’ measured statistically using the normative values of the colonisers and regularly deploying the ubiquitous idiom of Closing the Gap with its loaded deficits connotation that can be highly offensive.
In this paper I want to engage with this historical snapshot in two ways.
First I want to deploy the cartographer’s eye cadastrally to demonstrate what has happened across the Australian continent around Indigenous and non-Indigenous land titling from 1788 to the present. This is illustrated synoptically in Figure 1.
Figure 1: A snapshot of Indigenous held land 1788–2013
In 1788 Indigenous nations possessed the entire continent. Then during a prolonged period of land grab from 1788 to the late 1960s Indigenous peoples were dispossessed. But then, from the late 1960s, there has been an extraordinary period of rapid legal repossession and restitution that is ongoing. This has not occurred as part of some coherent policy framework, but rather as a somewhat ad hoc land titling ‘revolution’ driven intermittently by political, social justice and judicial imperatives.
Second I want to engage with this paradox of legal repossession: if the logic of settler colonialism and market capitalism is dispossession, which I believe is the case, why have powerful state and corporate interests tolerated legal repossession? This is a complex issue, but part of the answer to what appears as a competing logic of ‘giving back’ land is provided by the workings of capitalism that dispossesses what is of market value. Historically, and today, that has been arable land and sub-surface minerals. But market values and technologies for extraction are dynamic. The very remote country of the past that was un-alienated and regarded as holding no commercial value is today not just mineral prospective and hyper mineral productive, as industrial mining gets more and more efficient; Indigenous lands also have high environmental and biodiversity values.
In later analysis I will elucidate this paradox of value that erupts from time to time into violent political contestation at iconic sites like James Price Point in the Kimberley, Solomons Hub in the Pilbara and Wild Rivers on Cape York. I will do so using the competing frames of the political economy of mining/capitalist/state interests and that of political ecology of Indigenous land owner and conservation interests. I realise that this representation is idiomatic, binary and somewhat reductionist. It can be similarly seen in a tension between dominant neoliberal ontology that focuses on individualism, materialism and the market and a subordinate Indigenous relational ontology that focuses on relations to kin, country and a sentient landscape.
I want to make a couple of epistemo-methodological comments about the cartography used here.
First, the maps I have produced with Francis Markham, a GIS expert, are all based on official statistics that are deployed here in a particular way focusing on the macroscopic and continental rather than on the regional and local. But these maps are inclusive of Indigenous cultural mapping. This is because, by and large, to repossess their lands Indigenous claimants and their legal and anthropological teams have had to provide evidence, sometimes in court, of continuity of customs and traditions observed and continuous connection to the land, to sacred places and continuity of economic practices like hunting, fishing, gathering. This onus of proof sometimes requires the deployment of ‘strategic essentialism’ (a term coined by the Indian literary theorist Gayatri Chakravorty Spivak 5). It has been termed ‘repressive authenticity’ by Patrick Wolfe and the ‘cunning of recognition’ by Elizabeth Povinnelli. 6 An earlier legal fiction of terra nullius has to be replaced by a contemporary legal fiction of un-invadedness. Working on land repossession in Asia and beyond, Tania Murray Li highlights the cruel irony that to get their land claims recognised as legitimate colonised people need to use the idiom of tradition despite new aspirations, new practices and new customs. 7
Second, it goes without saying that maps are highly political; as James Scott argues in Seeing like a State modern cadastral mapping is central to the very concept of the modern state and focuses on dimensions of land and its values as a productive asset or commodity for sale. 8 Just how political has been demonstrated in debates over native title, with the Prime Minister of Australia in 1997 suggesting that as much as 78 per cent of Australia might be locked away from commercial development when he knew very well that owners of native title have no right of veto.
I want to draw a distinction between what geographer Harm de Blij terms ‘maps of bad intent’ as deployed by the state to counter judicial findings and as instruments of governmentality; 9 and ‘maps of good intent’ that might open up discussion about the transformative potentiality of legal repossession, a geopolitical purpose that aims to explore the range of economic possibilities available to those indigenous Australians fortunate enough to get their land back. I realise of course that any ‘good’ and bad distinction is both contingent on framing and is subjective.
In this section I look to provide a number of maps and figures in a somewhat positivist manner. The focus is principally on lands where there have been determinations of exclusive Indigenous possession and land rights. All the maps are produced using information from official government sources. The data are current at 31 December 2013.
Figure 2 provides information on land titling under three tenures:
The last category often provides a weak form of property right that needs to be shared with other interests, most commonly commercial rangeland pastoralism.
These three categories total 2.5 million sq kms or roughly 33 per cent of terrestrial Australia.
Figure 3 provides information about Indigenous land interest in nearly 700 Indigenous Land Use Agreements (ILUA) that cover 1.6 million sq kms as well as information about more than 300 native title claims registered with the National Native Title Tribunal. The outer boundaries of these claims cover 3.2 million sq kms but recent history indicates that determinations, especially of non-exclusive possession, rarely include the entire claim area. Note that there is some overlap between ILUAs and registered claims.
Figure 2: Indigenous land titling under three tenures
Figure 3: Registered claims and Indigenous Land Use Agreements
Figure 4: Distribution of the Indigenous population from the 2011 Census and Indigenous land titles (2013)
This figure (4) shows diagrammatically that most Indigenous Australians do not in fact live on Indigenous titled land; less than 100,000 of a total population estimated at 660,000 live on these lands. It is not clear how many of these are traditional owners (as defined in a statutory sense) or how many traditional owners live off their lands. What is clear, correlating population with land title, is that where there is land rights or exclusive possession native title, over 80 per cent of the population in these jurisdictions is Indigenous compared with a national proportion of the population of just on 3 per cent. If hypothetically all native title claims were successful, as much as 70 per cent of Australia could be under some form of Indigenous title and as much as 40 per cent of the Indigenous population could be resident on these lands.
In Figure 5 population is presented a little differently. There is a category in Australia’s census geography termed discrete Indigenous communities. These communities are extremely small and scattered. The larger ones that number between 500 and 3,500 persons were historically missions and government settlements during the colonial era. The smaller ones that number under 200 are generally outstations or homelands. There were 1,200 such communities when last estimated in the 2006 Census, with 1,000 having populations under 200. Most are located on lands that are under ‘exclusive’ Indigenous title.
Figure 5: Discrete Indigenous communities on Indigenous lands
Figure 6: Operating mines (2012) and Indigenous lands
Figure 7: Known mineral deposits (2006) and Indigenous lands
Figures 6 and 7 relating to mining and mineral exploration and refer to political economy. It can be seen that about 20 of Australia’s 400 operating mines are on Indigenous lands, although many more are near discrete communities. More significantly, there are existing and emerging mineral provinces that are either located on Indigenous land, especially in the Pilbara, or adjacent to Indigenous lands. There is also a distinct possibility that Indigenous lands that are under-explored to date, because of remoteness, may be of greater mineral worth than Figure 7 suggests. What is significant is that native title determinations of exclusive possession and registered claims trigger a right to negotiate over any mineral extraction project, while rights available under non-exclusive determination and ILUAs are generally weaker.
Figures 8, 9 and 10 focus on environmental values overlaying a template of lands of exclusive land rights and native title possession over three resource atlas maps. Figure 8 shows a marked contrast between these remote lands and more settled and densely populated and farmed regions in terms of vegetation condition. Figure 9 similarly shows that official threatened species counts indicate a marked difference between Indigenous lands and more densely settled areas in the south east and south west of the continent. Figure 10 shows that the riparian zones of rivers, so crucial to biodiversity and water quality, show a high river disturbance indicator in the south east and south west. This is especially along the Murray Darling system. There has been low disturbance in the remote tropical savannah, although this is not to suggest that these jurisdictions are threat free.
Figure 8: Vegetation condition (2006) and Indigenous lands of exclusive possession
Figure 9: Threatened species count (2008) and Indigenous lands of exclusive possession
Figure 10: Disturbance of riparian zones (2008) and Indigenous lands of exclusive possession
Figure 11: Estimated property values and Indigenous lands of exclusive possession
In Figure 11 the converse of the story of land degradation is provided with reference to the estimated value of land according to real estate criteria. Most Indigenous land either has no data because it is not traded or else it has a very low market value.
The environmental value of Indigenous land is resulting in more and more of this land becoming incorporated on the initiative of traditional owners into the Australian National Reserve System (the conservation estate), especially since the mid-1990s. In 1996 the Howard Government established an Indigenous Protected Areas programme that allows traditional owners of land to enter agreements with the Australian government to promote biodiversity and cultural resource conservation. Environmental agencies are keen to expand the conservation estate cost effectively, while traditional owners are keen to either maintain the environmental and cultural values of their land or actively engage in their rehabilitation to address damage by postcolonial invasive threats including feral animals and exotic weeds.
Figures 12 shows cadastrally the extent of this coverage. There are currently 60 protected areas declared covering 15.5 per cent of the Australian land mass, while a further 170,000 sq kms of the conservation estate is either jointly managed Indigenous land or co-managed by traditional owners on state land. This current situation is shown diagrammatically in Figure 13. What is significant about this figure is that there is potential for much more Indigenous land to be included in the conservation estate if traditional owners so wish. 11
Figure 12: Mapping Indigenous and national conservation lands
Figure 13: Indigenous and other components of the terrestrial conservation estate
In my recent research I have sought to ask how indigenous Australians, mainly living very remotely, can benefit from the land titling revolution, the sudden repossession that I have documented. I am also interested in the ‘unfinished business’ of land justice for the majority of Indigenous Australians who have no land rights but will leave this issue in this article.
My analysis is greatly influenced by the hybrid economy model (Figure 14), a construct that I have deployed over the past decade or so to develop a general framework for understanding economic encounter on Indigenous-owned land: hybrid economy theory recognises that where custom has to have been legally proven to get back land then that custom usually exists so that almost everything in the production, distribution and consumption realms and in resource governance on Indigenous land is intermingled with the customary.
At the core of my hybrid economy project is an attempt to advocate for diversity between inter-dependent state, market and customary sectors of existing local economies; and recognition of interdependence between capitalist and non-capitalist economic relations. 12
My political project is to dilute over-bearing corporate and state power and inform Indigenous land owners of potential for alternatives especially where they enjoy free prior informed consent rights.
Production regimes in remote Australia are not just limited to segments 1 and 3, the market and the state, or the intersection (5) between them, they can encompass a range of possibilities where the customary (2) is deployed alongside state, market or state and market articulations.
Figure 14: The hybrid economy model
The maps above suggest some cause for spatial triumphalism from an Indigenous standpoint, at least for the 22 per cent of the continent where there is ‘exclusive’ possession and where the proportion of the population is 80 per cent plus Indigenous. In such jurisdictions one might expect that distinct indigenous ways of being that are today economically hybrid or mixed might prevail. To adapt from political ecologist Arturo Escobar these are ‘territories of potential difference’ where alternate futures might be envisioned. 13
But this economic hybridity and different forms of development do not flourish for three key reasons that I summarise as follows:
These three qualifiers explain in part ongoing Indigenous socio-economic disadvantage alongside ownership of massive tracts of land, and so explain in part the paradox of land repossession that I referred to earlier.
Let me conclude by positing how ecological economics might mediate the clash between political economy and political ecology that frames my analysis?
To simplify considerably, it strikes me that the focus of ecological economics on the embedding of the economy in society in the environment, is a line of reasoning that resonates with the relational ontology of many Indigenous land owners’ focus on kin, ancestral country and the sentience of resources. Ecological economics makes the distinction between economic growth—that even quantifies depletion of non-renewable resources as a positive in national accounts—and economic development that focuses more on qualitative analysis of well-being that can be harmed by the negative impacts of resource extraction on cultural and environmental landscapes.
There are aspects of the ecological economics approach that might assist Indigenous land owners who will face increasing political and commercial pressures from market capitalism and industrial mineral extraction:
As ecological economist Joan Martinez-Alier argues, too often the real social and cultural costs of resource extraction, abstractly referred to as negative externalities, are shifted to the poorest and least powerful. 15
My focus in this paper has been continental. I seek to raise some of the hard questions faced by Indigenous land owners who are keen to see transformative potentiality embedded in the extraordinary land titling revolution of the past 40 years that might be harnessed for diverse, relatively autonomous and environmentally sustainable economic futures. To borrow a phrase from Erik Olin Wright, how might ‘real utopias be envisioned’ on Indigenous lands for those fortunate enough to repossess them? This seems to me an especially pertinent question at a time when there is so much uncertainty about the future and viability of post-industrial late capitalism. The hopeful answer based on notions of economic hybridity might see those who were dispossessed as too ‘primitive’ to own land from 1788 to the late 20th century exporting lessons to the occidental global north in the 21st century.
Criminal law, sentencing and ethnicity - Bugmy v The Queen  HCA 37
Criminal law, sentencing and ethnicity – Mika v R  NZCA 648
Criminal law, application of tikanga Māori – Mason v R  NZCA 310
Urgent inquiry into reform of the Māori Community Development Act 1962
Turbulent times: speculations about how the Whanganui River’s position as a legal entity will be implemented and how it may erode the New Zealand legal landscape – Laura Hardcastle
The political ecology and political economy of the Indigenous land titling ‘revolution’ in Australia – Professor Jon Altman from the Australian National University delivered the first of our 2014 lunchtime seminars on 13 February 2014 at the Faculty of Law, Victoria University of Wellington.
Download the Māori Law Review February 2014 (552 KB PDF).]]>
High Court of Australia  HCA 37
2 October 2013
Max Harris considers the judgment of the High Court of Australia in Bugmy v The Queen where the Court considered – amongst other things – the argument that Aboriginal Australian offenders should be entitled to a sentencing discount on the basis of their indigenous background.
Download Bugmy v The Queen  HCA 37 here.
As noted in a recent case note on the New Zealand Court of Appeal decision in Mika v R  NZCA 648 (see (2014) February Māori LR), the last two years have seen much judicial activity in the area of the sentencing of indigenous offenders – in Canada, Australia, and in New Zealand. Recently Australia’s highest court offered its authoritative opinion on the matter in Bugmy v The Queen  HCA 37 (hereafter “Bugmy”).
The High Court of Australia allowed an appeal from a decision of the New South Wales Court of Criminal Appeal. The Court’s joint reasons were written by French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ, with a concurring judgment written by Gageler J. The Court found that the Court of Criminal Appeal failed to consider whether the initial sentence imposed was manifestly inadequate; this was the “determinative issue” (). But the Court, at least in the joint reasons, also took the opportunity to explain the relevance of aboriginality and social deprivation to sentencing. The joint reasons found that while Aboriginal Australians may face particular social deprivation (especially relating to alcohol abuse and the impact of prison), generally a principle of “individualised justice” prevents any automatic discount in sentencing on account of an offender’s Aboriginal background. On the issue of social deprivation, however, the joint reasons upheld the submission that evidence of social deprivation does not become any less relevant over time. Gageler J seemed to express more hesitation on this latter point. The Court accordingly set aside certain paragraphs in the Court of Criminal Appeal’s decision, and remitted the case back to that Court for further consideration.
In the end, this is a case that plainly does not go as far as the Supreme Court of Canada has gone on the question of the relevance of indigenous background to the sentencing of offenders (see, for instance, Māori LR May 2013). In fact, the Court makes some comments that are perhaps insensitive to social context and overly individualistic in outlook. Nonetheless, on the positive front, the Court accepts some distinct challenges faced by Aboriginal Australians and their communities (in particular, the problem of alcohol abuse and difficulties around treatment in prison), and reaches a conclusion on the relevance of social deprivation evidence that may be useful for non-Aboriginal and Aboriginal offenders alike. The result of Bugmy is a mixed bag. We might expect better from the New Zealand Supreme Court when it comes to considering the same issues in the near future.
William David Bugmy (aged 29 at the time of the appeal) was raised in Wilcannia, New South Wales, in a household with a number of siblings where alcohol abuse and violence were rife. Mr Bugmy started drinking alcohol and taking prohibited drugs when he was 13. His juvenile offending record began at age 12, and he has a long record of convictions (as do his siblings). He has a long-term partner, and a daughter with that partner. Both he and his partner are alcoholics, and he also has a history of suicide attempts. As well, he has head injuries, hallucinations, psychosis, and a conduct disorder.
Mr Bugmy, while a remand prisoner, became upset at a correctional officer, Mr Gould, when it seemed that visitors would not arrive at a correctional centre before the centre closed. After Mr Bugmy threatened Mr Gould in violent terms, two other officers were sent. Mr Bugmy threw pool balls at these officers in anger, leading to a charge of assaulting a correctional officer while the officer is in execution of his or her duty. Then Mr Bugmy threw balls at Mr Gould, which struck him in the back and eye, causing serious injury. Mr Gould lost vision in his left eye and suffered profound psychological effects from the injury. For this conduct, Mr Bugmy was charged with causing grievous bodily harm to a person with intent to cause harm of that kind.
It is worth noting that in the statement of facts in the joint reasons, this discussion of Mr Bugmy’s conduct comes first, at –; Mr Bugmy’s background is then outlined at –. The ordering hints at the High Court’s view of the relative importance of background and conduct, a prioritisation elaborated later in the substance of the judgment.
Mr Bugmy was sentenced to a non-parole period of four years and three months, and a balance of term of two years. In the District Court Judge Lerve recommended release after the non-parole period was served, conditional on supervision of drug and alcohol treatment. The Director of Public Prosecutions appealed to the New South Wales Court of Criminal Appeal on the basis that the sentence was manifestly inadequate, and also on the basis that the District Court Judge failed to consider the objective seriousness of the offence and placed too much emphasis on the offender’s subjective case. The Court of Criminal Appeal upheld the grounds of appeal relating to subjectivity and objective seriousness in relation to the charge of causing grievous bodily harm, and said that such findings made it unnecessary to evaluate whether the sentence was manifestly inadequate. The Court resentenced Mr Bugmy to a non-parole period of five years, with a balance of term of two and a half years. Mr Bugmy appealed to the High Court of Australia, with leave being granted on 10 May 2013.
The joint reasons can be split into three parts: reasoning on the first point, which was largely a question of sentencing process; reasoning on indigenous background and sentencing; and reasoning on the relevance of social deprivation evidence.
The Court found, first, that the Court of Criminal Appeal erred in allowing the appeal of the Director of Public Prosecutions and resentencing the offender, without determining whether the sentence imposed by the primary judge in the New South Wales District Court had been manifestly inadequate. This point will be of less relevance to readers (as it relates more specifically to Australian appellate procedure in criminal law), but it may be useful to recap the Court’s discussion in brief. In essence, the Court of Criminal Appeal found that the District Court had been too lenient in its view of mitigating factors (it was wrong to moderate its consideration of general deterrence in light of evidence of mental illness, for example) and failed to discharge its duties in assessing aggravating factors (by, for instance, seemingly not considering how the victim’s status as a correctional officer ought to affect the sentence). But the major ground of challenge – that the sentence was manifestly inadequate – was not determined. The High Court joint reasons rejected the view that the Court of Criminal Appeal had implicitly decided this point. Had the Court not decided this point, the correct course of action was for the Court to consider whether it should exercise its residual discretion to dismiss the appeal, but it had not exercised this discretion, either. Thus, the High Court found that the Court of Criminal Appeal had fallen into error, with the High Court implying that the sentence may not have been manifestly inadequate (see ).
The High Court also considered, secondly, the relevance of Canadian jurisprudence on sentencing indigenous offenders – in particular, the decisions in R v Gladue  1 SCR 688 and Ipeelee v R  1 SCR 433. It was argued by Mr Bugmy that the unique circumstances of Aboriginal offenders should be relevant to their culpability in each case, and that the high rate of incarceration of Aboriginal offenders should be taken into account during sentencing of such offenders (). The Court’s joint reasons can be distilled into five propositions on this issue:
Thirdly, the joint reasons of the Court considered comments by Hoeben JA in the Court of Criminal Appeal to the effect that with the passage of time, the relevance of an offender’s social deprivation must diminish in the context of sentencing, especially where substantial offending had occurred in the meantime (an argument expressly rejected by the Canadian Supreme Court in Ipeelee). The Director of Public Prosecutions did not seek to defend this comment in the High Court, accepting that the “effects of profound deprivation do not diminish over time” (at ), even where there substantial offending has occurred. The High Court acknowledged the validity of the Director’s submission, saying that a background of social deprivation often affects a person’s ability to mature and learn from experience. The Court noted that the effects of social deprivation must therefore be given “full weight” in sentencing: . The Court did observe, however, that a background of social deprivation may reduce culpability, but may also increase the need for community protection; social deprivation evidence does not point solely in the direction of a more lenient sentence (). In remitting the case to the Court of Criminal Appeal, the High Court encouraged the Court to focus in particular on how social deprivation and mental illness might have affected considerations of general deterrence.
Gageler J seemed to focus on why the issues of Aboriginal background and social deprivation were not properly the subject of appellate intervention, given that the alleged errors in reasoning involved only matters of weight (at ). His Honour agreed with the analysis of the joint reasons on the first issue discussed above. However, his Honour appeared to opt for a more cautious view on the relevance of social deprivation, holding that he did not agree with the lower court’s view that there must always be a diminution in relevance of this evidence when there time has passed – but also that he did not agree with the Director’s “categorical concession” that there must never be a diminution in the relevance of such evidence. The weight to be given to social deprivation is, said Gageler J – in a line that was an echo of much of the joint reasons – a matter of “individual assessment”: .
Given my lack of deep knowledge on Australian criminal law, I cannot speak authoritatively on certain issues arising in Bugmy: for example, whether the High Court of Australia has properly interpreted the Fernando case, or whether it has artificially narrowed the principle to be taken from that decision. Those are matters for other authors. What can be said are four things – four points of a more philosophical nature – relating broadly to the obvious outcome of the decision, the social role of courts across jurisdictions, the role of “context”, and the nature of “individualised justice.”
It should be acknowledged that the conclusion of the joint reasons of the High Court on the relevance of social deprivation evidence will be helpful to offenders seeking to construct nuanced arguments regarding their culpability. That Gageler J expressed a different view shows that this outcome was by no means inevitable. And indirectly, this conclusion should be useful to Aboriginal offenders, given that they will often be able to point to evidence of social deprivation arising out of colonisation. As well, there are statements in this judgment acknowledging the endemic problems of alcohol abuse in Aboriginal communities and the burdensome nature of prison for Aboriginal individuals that may prove valuable in future cases.
However, the Court’s reasoning on the relevance of indigenous background to offending is far from flawless. The High Court’s outright rejection of the possibility that it might consider Aboriginal over-representation in prison statistics when sentencing (at ) suggests that the Court has a cramped view of its social role, especially in comparison to the perspective of the Supreme Court of Canada. That is reinforced by the fact that the Bugmy judgment refers far less to academic literature and general publications than the Supreme Court of Canada in Ipeelee. It must be the case that the over-representation of Aboriginal offenders in Australian prisons is in the minds of the judges of the High Court of Australia (as is implied by the reference to a government review of indigenous disadvantage at footnote 64 – one of the only references to broader literature in the judgment). If this is so, then for the Court nevertheless to refuse to take judicial notice of Aboriginal Australians’ systemic social deprivation is blinkered and arguably irresponsible.
The differences between the Australian and Canadian approaches turn partly on legislative provisions – but they seem also to turn on different views about context in sentencing. All judges in common law jurisdictions would agree that context is of utmost significance in sentencing. But it appears that the Canadian Supreme Court has taken a wider view of what “context” means, and has felt bound by the need to consider context in sentencing to reflect on history and social facts. The High Court of Australia has accepted the importance of context, and yet has evidently understood relevant “context” to be limited in the main to personal circumstances of an offender.
This leads naturally on to analysis of the High Court’s emphasis on “individualised justice”. It is, of course, attractive to claim that sentencing must be tailored to individual circumstances in each case. However, the High Court elevates this attitude or orientation to an inviolable rule, and interprets “individualised justice” in a particular way to exclude consideration of the position of the Aboriginal population. It should be underscored that a court could be committed to “individualised justice” and could still recognise the need to take judicial notice of indigenous over-representation in prison. It could be said that colonial history and social deprivation affect individual culpability in a very real way – indeed, this is essentially the argument made by the Supreme Court of Canada in Ipeelee. But this is not the conclusion reached by the High Court in Bugmy. Nor does the Court attempt to square “individualised justice” with the conventional approach of sometimes allowing social patterns (such as the difficulty faced by young people or pregnant mothers in prison) to influence sentencing. Stepping back, it must be said that the Court’s “individualised justice” refrain is a little under-developed, and could in future years be regarded as overly Western, and ignorant of both Aboriginal collective norms and the contemporary realities of Australian society.
After the New Zealand Court of Appeal’s decision in Mika (see (2014) February Māori LR), it is clear that arguments similar to those mounted in Bugmy may very soon come before the New Zealand Supreme Court. The upshot of this article is that when that moment arrives, the New Zealand Supreme Court should treat the arguments made by the High Court of Australia in Bugmy with caution. Some of the points made in Bugmy may also be relevant in the New Zealand context: it is true, for example that New Zealand, like Australia, does not have legislative provisions as clear-cut as Canada’s in the sphere of indigenous sentencing (though it is arguable that New Zealand has analogous provisions in ss 8 and 27 of the Sentencing Act). But some aspects of the Bugmy approach, regarding in particular individualised justice and context, need not be followed in New Zealand. It is possible for New Zealand judges to adopt a more fine-grained and sensitive posture towards history and contemporary social facts. Some might say that posture is even required, if Aotearoa New Zealand is to be a society that lives up to the rhetoric of egalitarianism and fairness that we like to espouse.]]>
Turbulent times: speculations about how the Whanganui River’s position as a legal entity will be implemented and how it may erode the New Zealand legal landscape
The Māori Law Review is pleased to publish Laura Hardcastle’s prize winning essay on recognising the Whanganui River as a legal entity.
In 2013, the Māori Law Review sponsored the second Sir Edward Taihakurei Durie Student Essay Competition. This is an annual competition aimed at supporting and developing emerging scholars.
We are very pleased to publish Laura Hardcastle’s winning entry in this edition.
The competition asked students to write about the most important legal development affecting Māori from the previous year and was judged by a panel of the Māori Law Review’s consulting editors. The standard of entries received was very high.
Ms Hardcastle, a student at Victoria University of Wellington, chose to write about the ground-breaking Whanganui River settlement that will recognise legal personality of the river itself. Her essay is entitled ‘Turbulent times: speculations about how the Whanganui River’s position as a legal entity will be implemented and how it may erode the New Zealand legal landscape’. It considers a range of issues that the New Zealand legal system will need to grapple with as a result of this innovative redress. The essay also draws parallels with the recent Tūhoe settlement, which includes an agreement for Te Urewera National Park to become a legal entity.
As Ms Hardcastle’s essay illustrates, these two agreements have potentially wide-ranging ramifications. Beyond the context of the two specific settlements, these agreements arguably represent a shift towards more effective recognition of Māori understandings of relationships between people and the natural environment. Internationally, these agreements have been held up as an important achievement for environmental protection more generally. Perhaps most significantly, Ms Hardcastle points to the ways in which New Zealand law might need to adapt in order to accommodate these new legal entities, which may come to be seen as “the start of a journey towards a new set of fundamental values to underlie our law.”
In August 2012, sustainably-produced champagne corks popped as environmentalists celebrated a world-first agreement for the Whanganui River to become a legal person. 1 The Huffington Post’s article alone received 2000 ‘likes’ on Facebook, that inescapable gauge of public opinion, with supporters rejoicing in evidence that governments no longer saw nature as an exploitable resource. 2 Whilst the concept had been mooted before, it had always been considered somewhat “radical”. 3 Now, perhaps, rights for non-human entities would enter the mainstream. These celebrations may prove premature.
The agreement forms part of the Treaty of Waitangi settlement process for claims by the Atihaunui-ā-Pāpārangi iwi for the Whanganui River along which they lived for nearly a millennium before the Crown took ownership through a 1903 statute. 4 A favourable Waitangi Tribunal report led the iwi to enter negotiations with the Crown, a Record of Understanding being released in 2011. Perhaps as a compromise to prevent iwi from gaining ownership, the Crown agreed to include in the forthcoming settlement statute recognition of the river as a legal entity called Te Awa Tupua. 5
Taking its cue from the river, this essay first explores the legislation’s anticipated initial (in a river, the ‘upper’) course, principally focusing on what the statutory ‘bed’ may look like and the practical issues it must address. Additional insight has recently been provided by the Te Urewera-Tūhoe Bill, which was introduced to Parliament on 7 August 2013 and seeks to place Te Urewera “beyond human ownership” by recognising it too as a distinct legal entity. 6 The Te Urewera Bill may be considered a tributary, as the experience of its drafting and eventual passage through Parliament will inevitably flow into and affect the final Whanganui River Act. However, the Whanganui will still have to forge its own path through the legal landscape.
In the medium term, the Te Awa Tupua concept will be constrained by the courts as cases arise, in the same way a river’s banks limit it. Beyond this is the question of how the river will alter and erode the surrounding landscape of societal attitudes and underlying principles of the law. At each point, the river must work around existing obstacles, or gradually erode the current legal landscape, creating something entirely new. Regardless, the final product has the potential to be ground-breaking, with 2013 marking the start of a revolution within indigenous and environmental law alike.
As yet, there exists no publicly available draft Bill for the Whanganui River settlement. However, the Te Urewera-Tūhoe Bill and the Tūtohu Whakatupua (framework agreement) between the Crown and Whanganui iwi give some indication as to what the eventual Bill will look like. For example, the latter defines Te Awa Tupua as comprising “the Whanganui river as an indivisible and living whole, from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements”, uniting the areas below, above and including the riverbed. 7 As for Te Urewera, the Whanganui River will be declared a legal entity with “all the rights, powers, duties, and liabilities of a legal person.” 8
The Te Urewera-Tūhoe Bill will vest any Te Urewera land currently held as a conservation area, Crown land, a national park or a reserve as a fee simple estate in the newly-created entity at which point, it will become inalienable. 9 Similarly, Crown property, 230km of the river’s 290km length, 10 in the Whanganui riverbed will be vested in Te Awa Tupua. 11 This is conceptually problematic, with the whole that is Te Awa Tupua having property in part of itself. Furthermore, conventional wisdom is that the common law and legislation will not allow water to be owned, only the river’s bed. 12 The Waitangi Tribunal at the time suggested that this should be ignored, and native title applied as the indigenous people would see it, with the river considered a whole which may not be owned. 13 The Tribunal has since concluded that Māori retain residual proprietary rights to water such as comprising the Whanganui. 14 Rather than addressing this complex issue, it is probable that the Whanganui legislation, like the Te Urewera-Tūhoe Bill, will flow around existing law, ignoring the problem of a river owning part of itself, so Te Awa Tupua will own its bed, but have no rights to its waters.
A related difficulty is that just as the river may be considered a whole, so may the rest of nature. It is logically and scientifically incorrect to divide the river from its catchment, the two being intimately interconnected. Admittedly, both the common law and statutes such as the Resource Management Act 1991 are littered with arbitrary divisions of nature into identifiable segments such as that of rivers into the water, which cannot be owned, and the bed and banks which can, as already discussed. 15 Whilst the Whanganui agreement is a step in the right direction by combining the river, bed and banks into one entity, Te Awa Tupua, it arguably does not go far enough and allows nature to continue to be divided into manageable, and potentially exploitable, chunks.
Furthermore, if the river is to be separated from the rest of nature, where will its boundaries be? At what point does the river become the sea and cease to be Te Awa Tupua? Where does the river start? The answer to this last is logically the river’s source, but as all tributaries lie within the definition, the source point of each must be defined, a challenge in New Zealand’s mountainous terrain. Such a fine-grained analysis of boundaries will not always be necessary, but scenarios may arise where such a small matter may decide a case. Any statute will thus have to carefully enunciate where Te Awa Tupua’s boundaries will be.
Given that Te Awa Tupua will obviously be unable to protect its own rights, the legislation will regulate the appointment of river guardians (Te Pou Tupua), one by the Crown, one by iwi, to protect and promote Te Awa Tupua’s status and wellbeing. 16 By contrast, the Te Urewera-Tūhoe Bill establishes a Board, which will be empowered to prepare, approve and advise on a Te Urewera management plan, make bylaws, authorise activities, prepare and commission reports, liaise with other agencies and advocate on Te Urewera’s behalf “in any statutory process or at any public forum.” 17 For the first three years after settlement, the Board will comprise eight members, four each appointed by Tūhoe Te Uru Taumatua’s trustees, and the Ministers for Conservation and Treaty Negotiations. After three years, membership will increase to nine, with six appointed by the trustees and three by the Ministers. 18
The Whanganui statute will also confirm that, once appointed, guardians no longer represent their appointee, just as the Te Urewera Board members will be expected to act only in such a way as to achieve the Board’s purposes. 19 However, environmentalists may be concerned that the Crown and iwi may appoint individuals sympathetic to their respective views. Furthermore, whilst not mentioned in the Tūtohu Whakatupua, consideration of the iwi’s economic development is included in the initial Record of Understanding, suggesting environmental concerns may not always be paramount. 20 Iwi influence may also be reduced once guardians are appointed, as whilst the Crown will remain a major player through local governments and other bodies, iwi will have to vie for attention with the guardians if their positions conflict (although if they coincide, iwi voices will be strengthened).
If the Whanganui River statute is drafted similarly to the Te Urewera-Tūhoe Bill, the guardians’ principal responsibilities and powers are likely to be the drafting of a management plan, authorising particular activities (although the Te Urewera Board cannot prevent mining in the region, which remains controlled by the Crown Minerals Act 1991) and passing bylaws. 21 The Bill allows bylaws to be made for a wide range of reasons such as “the management, safety and preservation of Te Urewera”, “prohibiting and regulating the use of internal combustion engines” and “excluding the public from any specified part of Te Urewera.” 22 However, all bylaws must be approved by the Minister for Conservation, which may prevent particularly radical approaches to protecting Te Urewera’s environment. Furthermore, breaches of bylaws warrant fines up to only $5000, significantly reducing their potential for curbing destructive behaviour. 23
It is also unclear how Te Awa Tupua’s new rights will interact with those of others. The Tūtohu Whakatupua makes clear that Te Awa Tupua’s status will not affect private property rights. 24 It is likely to contain a provision similar to that included in the Te Urewera-Tūhoe Bill which states that the title of any “registered proprietor of land adjacent to Te Urewera land” will not be adversely impacted. 25 However, neighbouring landowners may remain concerned about what rights natural objects will have to sue and be sued for harm done to or by them, a frequent point of contention whenever rights for natural objects are mooted. In terms of the former, the Te Urewera-Tūhoe Bill addresses the issue of recompense for harm done to Te Urewera instead through a number of offences to penalise anyone who, for example “removes or wilfully damages any, or any part of, any plant, stone, mineral, gravel, kauri gum, or protected New Zealand object in Te Urewera.” 26 Individuals committing such offences face fines of up to $100,000 (plus a further $10,000 for every day the activity continues) and either up to 1 or 2 years imprisonment depending on the offence. Body corporates are liable for fines up to $200,000. 27 Should the offence be committed in pursuit of commercial gain (proved beyond reasonable doubt), fines are increased to up to $300,000, whilst individuals face up to five years imprisonment, thus sending a very clear message that this statute aims to prioritise the environment over economic concerns. 28
Since any money recovered by way of fines is to be paid to the Board, and the range of offences and fines available is considerable, it would appear to be unnecessary for the Te Urewera Board, or the Te Pou Tupua, to be able to sue those responsible for environmental harm. 29 However, there may be occasions when criminal proceedings are unsuccessful, particularly given the higher ‘beyond reasonable doubt’ standard of proof needed for a criminal prosecution compared to the civil standard of ‘on the balance of probabilities’, or the amount recoverable in fines may be inadequate to repair the damage done. The ability to launch its own suits would also entrench a natural object’s status as a legal person in its own right, rather than it being forced to rely on the state to prosecute individuals, as Te Urewera will likely have to do. Despite cl 118 giving Te Urewera “all the rights, powers, duties and liabilities of a legal person”, which presumably includes the ability to sue other legal persons, it, or rather the Board, is prevented from doing so as the aforementioned “rights, powers, and duties” may only be exercised “in the manner provided for in Parts 5 to 7” of the Act. Thus, whilst the Attorney General’s comparison of the Whanganui River’s legal standing to that of a company suggests its rights to sue and be sued will be considerable, if the Te Urewera-Tūhoe Bill is anything to go by, the analogy is likely to be inaccurate. 30
Admittedly, if given rights to sue, the river would become one of few non-human entities so endowed (ships, companies and trusts may all sue, but are collections of people). 31 Full rights to sue may also be politically unpopular, with those owning businesses affecting the river fearing increased legal activity. Usual arguments in favour of rights for natural entities include that allowing the river to sue in its own right would mean that more individuals who have previously escaped liability may face court for their destructive behaviour, and provide an obvious plaintiff at least for some cases involving environmental degradation. It would avoid the problem faced by environmentalists in the United States, who must argue that they themselves suffer harm through being unable to see a rare animal to prevent its habitat from being destroyed. 32 However, these issues can be addressed through the system of offences and penalties included in the Te Urewera-Tūhoe Bill, although the standard of proof required for conviction is higher. The problem with this is that it undermines the purpose of the Bill and wider settlement, which is to recognise the mana and individual identity of Te Urewera. Instead of allowing Te Urewera standing in its own right to protect its own integrity, it is once again reliant on the Crown to prosecute those who have defiled it. It remains to be seen how many such prosecutions actually occur.
It is interesting to note that, whilst the “rights, powers, and duties” of Te Urewera are limited to being exercised in accordance with the Act, its liabilities are not so limited. 33 Indeed, cl 202 only excludes liabilities relating to rates, fire authority levies and contamination of land during the Crown’s stewardship. Te Urewera, and the Whanganui (if similar sections are imported into that Act), are thus very limited in what rights they may rely on but virtually unlimited in terms of liability. However, this presupposes that a suit might be successful against Te Awa Tupua, which appears unlikely as most actions for property damage require a particular mental state of the defendant. A river cannot be negligent or trespass as it could never intend the act that amounted to trespass. 34 Nuisance is unavailable as occupiers have no claim for water flowing naturally onto their land, 35 whilst the accumulation of water in a river could not be seen as a non-natural use of land as required by Rylands v Fletcher, 36 The Accident Compensation Act 2001 also prevents any claims for personal injury. 37 All that remains are strict liability offences, of which New Zealand has very few. The Resource Management Act 1991 s 341 attributes strict liability to six sections. Section 14 relating to damming or diverting water courses (perhaps applicable to a river which has flooded due to debris build up) and s 15 relating to discharging contaminants (if the river spreads contamination to surrounding lands) might be interpreted (albeit widely) to include rivers. However, even if such an offence were proven, s 341 offers a defence if events were beyond the defendant’s control, although the river may struggle to demonstrate the necessary adequate mitigation or remedy also required of the defendant 38 Perhaps a river’s action in dispersing flood water and contamination will always be adequate as there is nothing else it can do.
It would thus appear that Parliament has effectively legislated out of the issue of Te Urewera being able to sue and be sued, and will probably include similar provisions in any Act relating to the Whanganui. Whether these natural objects can be considered true legal entities without such rights is debateable.
Should issues relating to the eventual Whanganui River statute reach the courts, judges will find themselves interpreting an essentially unique statute, with few countries worldwide having in any way comparable provisions to offer guidance.
Causation may be problematic both in terms of criminal prosecutions and private suits by the board or guardians responsible for a natural entity, as it can be difficult to identify who precisely is responsible for an environmental problem. Whilst it might be reasonably straightforward to ascertain who unlawfully took a particular dog into Te Urewera, demonstrating who “interfere[ed] with or damage[ed] a natural…feature” might be difficult, especially if the harm is caused by pollution originating outside of the park. 39 In the Whanganui context, proving conclusively who is responsible for pollution or farm run-off is not always straightforward. In response to similar problems, an Ecuadorian provincial court at least was willing to adjust procedural rules to fully vindicate the rights gifted Pachamama (Mother Earth) in the country’s constitution. 40 Not only did the court accept largely probabilistic evidence as to guilt but emphasised that in cases involving nature’s rights, the defendant bears the burden of proof given they generally have greater information as to the likelihood of environmental harm resulting from their activities. It remains to be seen whether the New Zealand courts would contemplate a similar shift in burden or whether this would require parliamentary action.
In the absence of a statutory direction, it will be interesting to see how courts will award damages should multiple claimants be able to sue for the same event: private landowners for their stretch of riverbed and banks, and Te Awa Tupua, either through a suit or more likely through a criminal prosecution, for harm to the river itself. Courts are unlikely to make defendants pay twice over, once through fines and once through damages, so landowners may see awards reduced, an unpopular move unless the river guardians compensate them for the difference. Theoretically, it should be irrelevant as hopefully the money would be used to restore the river anyway, but in reality, landowners might forego restoration to use damages for other things. Furthermore, what will be taken as the Whanganui’s natural state for the purposes of restoration, given its centuries of human modification; its unaltered condition (in which case defendants will pay for harm they did not cause) or the river’s current state (perhaps allowing defendants to escape liability for harm done before the present)? 41
The Te Awa Tupua legislation is virtually certain to pass as the alternative would be to repeat a long, costly negotiation process. Thus, rather than argue as to whether such legislation is necessary or even particularly helpful, it is pertinent to ask what changes it may precipitate. 42
Te Awa Tupua arguably marks a significant step towards recognising Māori perspectives within New Zealand’s European legal system in comparison with previous agreements, which have resulted only in increased consultation and co-management. 43 The traditional view of Māori conceptions of nature is that rivers have distinct personalities 44 as well as mauri (life force) which may be lost if not respected; 45 but is this reflective of what Māori have believed and now believe? Crown historian Fergus Sinclair has argued that Māori spiritual relationships with the Whanganui have only recently been claimed. Instead, early documents indicated Māori always considered the river property, and indeed, ownership was what iwi initially sought. 46 However, the Waitangi Tribunal suggests Māori may not have wished to argue with the prevailing European world view until recently. 47 In reality, perhaps only a member of the Whanganui iwi can truly say whether the Te Awa Tupua legislation accurately reflects their world view.
It is interesting that the Whanganui River is the first natural feature to be viewed as a living entity in New Zealand (the Tūtohu Whakatupua pre-dating the release of the Te Urewera-Tūhoe agreement and draft bill). Māori mythology describes the Whanganui being formed as a grief-stricken god, Taranaki, fled to the coast from his initial position by Tongariro, 48 or alternatively, that it resulted from a teardrop gifted to Ruapehu by the god Ranginui. 49 Thus, the mountains were viewed as gods with definite personalities, whilst the river was merely a product of those gods, perhaps indicating that the mountains should be next to receive legal rights. Indeed, the Te Urewera Bill appears to be a step in this direction. Regardless, it appears likely more natural features will become legal entities as the Whanganui sets a precedent for future Treaty settlements. This may actually advantage the Crown, providing a middle ground between vesting title in the iwi and refusing claims to anything other than co-management. However, iwi who have already settled claims with the Crown will be unable to add such provisions to their settlements and would have to request a separate statute to provide any entities within their regions with legal status.
In terms of environmental law, the conflation of indigenous and environmental rights has frequently been used to protect otherwise-vulnerable natural entities, as well as to introduce concepts foreign to Western legal systems but vital for environmental protection, such as intergenerational responsibility through Māori ideas of whakapapa. 50 However, indigenous beliefs do not necessarily protect the intrinsic value of nature; arguably, ideas about such value merely arose to prevent overuse of resources and ensure a group’s survival. 51 That environmental and indigenous interests can conflict has been demonstrated by Bolivia’s attempts to introduce rights for nature being resisted by the Confederation of Indigenous Peoples of Bolivia, who believe they have been shut out of the process by environmental groups. 52 In particular, the removal of a clause allowing indigenous groups to accept or reject megaprojects conducted on their lands is unpopular. Thus, the relationship between indigenous rights and environmental rights may be somewhat turbulent.
Regardless of whether Te Awa Tupua is simply a compromise with Māori, it may set a precedent for increasing adoption of rights for nature, ecocentric and indigenous values and Earth Jurisprudence (legal theories centring on the Earth) 53 more generally, showing they are to some extent compatible with Western capitalism. However, deeper change than a few statutes must occur, as property rights remain a ‘bulwark’ against an holistic view of the environment, whilst landowners perceive their rights to be breached by every new environmental regulation. 54 There is also a danger in fitting Te Awa Tupua into the current legal system, with one academic suggesting that its status as a legal entity paves the way for private commercial ownership of the river in future, with iwi levying river users. 55 This is somewhat unlikely given the independent guardian model proposed, but the separation of the river from the rest of the environment is reminiscent of the dividing up of land and disappearance of communal ownership that caused so many problems for Māori in the first place.
Perhaps Te Awa Tupua and its younger companion, Te Urewera, are the start of a journey towards a new set of fundamental values to underlie our law, but the progress it represents should not be overstated. Ultimately, if it is eroding the legal landscape, it is only doing so very slowly, working around difficult issues and reaffirming the current system with its references to vesting the riverbed in the entity, and its comparison of Te Awa Tupua’s rights with those of a company. However, it must be remembered that although one drop of water cannot alter a landscape, put many together and give them sufficient time and they can form caves, waterfalls and cliffs, altering the landscape irrevocably, just as the majestic Whanganui has done.
Accident Compensation Act 2001.
Resource Management Act 1991.
Jeremy Baker “The Waikato-Tainui Settlement Act: A New High-Water Mark For Natural Resources Co-Management” (2013) 24 COJIELP 163.
Polly Botsford “Environmental Law Gets Radical”(2012) 66 No 5 IBAGI 34.
Cormac Cullinan “Do Humans Have Standing to Deny Trees Rights?” (2008) 11 BARRYLR 11.
Erin Daly “The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature” (2012) 21 REICEL 63.
Don Ellinghausen, Jr. “Unnatural Foundations: Legal Education’s Ecologically-Dismissive Subtexts” (2011) 41 ENTL 681.
Susan Emmenegger and Axel Tschentscher “Taking Nature’s Rights Seriously: The Long Way To Biocentrism In Environmental Law” (1994) 6 GEOIELR 545.
Brendan Kennedy “I Am the River and the River is Me: The Implications of a River Receiving Personhood Status” (2012) 36 Cultural Survival Quarterly.
Judith E. Koons “What is Earth Jurisprudence?: Key Principles to Transform Law for the Health of the Planet” (2009) 18 PENNSELR 47.
Judith E. Koons “Earth Jurisprudence and the Story of Oil: Intergenerational Justice for the Post-Petroleum Period” (2011) 46 USFL Rev 93.
Judith E. Koons “At the Tipping Point: Defining An Earth Jurisprudence for Social and Ecological Justice” (2012) 58 LYLR 349.
James L. Huffman “Do Species and Nature Have Rights?” 13 PUBLLR 51 at 65
James R. May and Erin Daly “Vindicating Fundamental Environmental Rights Worldwide” (2009) 11 ORRIL 365.
Joel Schwartz “The Rights of Nature and the Death of God” (1989) 97 Public Interest 3.
Sarah Schwemin “What if we could sue the hurricanes? The necessity of recognizing the rights of natural entities” (2008) 11 BARRYLR 95
Sister Patricia Siemen “Earth Jurisprudence: Toward Law in Nature’s Balance” (2008) 11 BARRYLR 1.
Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – the Waikato River Settlement” (2010) 20 Water Law 285.
Rebecca Tuhus-Dubrow “Sued By The Forest: Should Nature Be Able To Take You To Court?” (2009) 24 MEBJ 232.
Arthur Bates The Wanganui River Digest (Wanganui Newspapers Ltd, Wanganui, 1983).
Thomas Berry “Rights of the Earth: We Need a New Legal Framework Which Recognises the Rights of All Living Beings” in Peter Burdon (ed) Exploring Wild Law (Wakefield Press, Kent Town, 2011) 227.
Dieter Birnbacher “Legal Rights For Natural Objects A Philosophical Critique” in Edgar Morscher, Otto Neumaier and Peter Simons (eds) Applied Ethics In A Troubled World (Kluwer Academic Publishers, Dordrecht, 1998) 29.
Ross Calman (ed.) Reed Book of Māori Mythology (Reed Publishing, Auckland, 2004).
Christopher D. Stone “Toward Legal Rights for Natural Objects” in Christopher D. Stone Should Trees Have Standing? And other essays on law, morals and the environment Anniversary 25th edition (Oceana Publications, New York, 1996) 1.
Natasha Burling “Settlement may open up commercial ownership of river” NewstalkZB (Online, 31 August 2012).
Economic & Political Weekly “If Mountains and Rivers Could Speak” (14 January 2012).
Anne-Marie Emerson “Solid waste dump causes stench in Wanganui” The New Zealand Herald (New Zealand, 19 December 2012).
Alison Fairbrother “New Zealand’s Whanganui River Gains A Legal Voice” The Huffington Post (online, 18 September 2012).
Helen Popper “Bolivian farmers urge rethink on Mother Earth law” Reuters Online (La Paz, 31 October 2012).
Kate Shuttleworth “Agreement entitles Whanganui River to legal identity” The New Zealand Herald (New Zealand, 30 August 2012).
Record of Understanding between Whanganui Iwi and the Crown (2011)
Tūtohu Whakatupua, Whanganui iwi and the Crown (2012).
Waitangi Tribunal The Whanganui River report (Wai 167 1999).
Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012).
Diana Beaglehole “Whanganui places – Whanganui River” (2012) Te Ara – the Encyclopaedia of New Zealand <www.teara.govt.nz>.
Carwil Bjork James “Bolivia’s new Mother Earth Law to sideline indigenous rights” (2012) Climate Connections <www.climate-connectsions.org>.
Laws of New Zealand Nuisance
Laws of New Zealand Tort
Criminal law, sentencing and ethnicity – Mika v R  NZCA 648
Urgent inquiry into reform of the Māori Community Development Act 1962]]>
Waitangi Tribunal (Wai 2417, 2.5.8)
24 December 2013
The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962, under which the New Zealand Māori Council and the Māori Wardens are governed.
Download Memorandum – Directions in the New Zealand Māori Council Māori Community Development Act Claim here (544 KB PDF).
|Urgent inquiry into reform of the Māori Community Development Act 1962|
|Date||24 December 2013|
|Case||Memorandum – Directions in the New Zealand Māori Council Māori Community Development Act Claim (544 KB PDF)|
|Citation||Wai 2417, 2.5.8|
|Member(s)||Deputy Chief Judge Fox (Presiding), Miriama Evans, Ronald Crosby, Tania Simpson|
|Legislation cited||Treaty of Waitangi Act 1975, Māori Community Development Act 1962|
|Overview and result||The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962 (the Act), under which the New Zealand Māori Council and the Māori Wardens are governed.|
The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962 (the Act), under which the New Zealand Māori Council and the Māori Wardens are governed.
The claim and the application for an urgent hearing were made by a number of members of the New Zealand Māori Council and District Māori Councils and the claim addressed several key aspects of the review of the Act. Although one limb of the claim will not be inquired into immediately, the Tribunal determined that the two other main limbs of the claim ought to be granted an urgent inquiry.
This claim arises from the process adopted to review the Act. The Act provides the legislative framework for:
In 2010, the Māori Affairs Select Committee recommended that the Act should be reviewed in light of the significant changes in Māori communities that have taken place since the early 1960s, when the Act was passed. The Crown subsequently began a process to review and reform the Act, led by Te Puni Kōkiri, the Ministry of Māori Development. This included the publication of a discussion document in 2013 that sought feedback on proposed options for reform.
The New Zealand Māori Council opposes the review process adopted by Te Puni Kōkiri and on 27 September 2013 Council members filed a claim about the review process. On 2 October 2013 the Tribunal received an application for an urgent hearing of this claim. Deputy Chief Judge Fox was delegated the task of determining the application and subsequently three other Tribunal Members (Miriama Evans, Ronald Crosby and Tania Simpson) were appointed to assist Deputy Chief Judge Fox in this task.
A judicial conference was scheduled for 16 December 2013. On 11 December 2013, the Crown sought an adjournment in light of Cabinet’s decision, announced by the Minister of Māori Affairs that day, that no changes would be made to the Act in respect of the New Zealand Māori Council and that further consultation would take place before any proposals in relation to the Māori Wardens was finalized. However, Cabinet’s decision did not remove all the issues to which this claim relates. The Crown acknowledged that aspects of the claim that relate to the Māori Wardens remained live and the Tribunal did not consider that there were grounds to adjourn consideration of the application for urgency:
We note that there has been no suggestion from the Crown that it will defer the process of reform of the Māori Community Development Act 1962 insofar as the District Councils and Māori Wardens are concerned. While the Crown has suggested that the Tribunal could adjourn and await the full definition of what that reform process will result in, we have not been persuaded to do so. That is because the history of the matter to date indicates that only limited assessment is being completed during policy formation steps to ascertain whether officials are promoting Crown actions or policy that are consistent with the principles of the Treaty, including adherence to Clause 7.60 of the Cabinet Manual, when making bids for the introduction of relevant legislation. (at )
Clause 7.60 of the Cabinet Manual provides that Ministers must draw attention to any aspects of a bill that have implications for, amongst other specified matters, the principles of the Treaty of Waitangi.
The claimants made three broad claims:
The NZMC’s first claim was based on concerns that specifically relate to the consultation and reform process being designed and directed by the Crown. Claimant counsel submitted that the Crown’s decision not to allow the NZMC to design and lead the reform process was inconsistent with principles of rangatiratanga and self-determination and the key issues in regard to this claim are set out in the Tribunal’s direction (at ):
The irreversible prejudice to Māori and the claimants and the NZMC includes that the Crown’s process of reform – even a more limited partial reform:
- Threatens the loss of official recognition for the functions of the NZMC, the District Councils and the Wardens;
- It diminishes the respective roles of the NZMC and the District Councils and thus their rangatiratanga; It will modify their self-governing rights without consent and render their claim moot once draft legislation is introduced into the House of Representatives; and
- It denies the NZMC the right to negotiate with the Crown and lead the process of consultation and reform in partnership with the Crown.
The second claim focused specifically on the Māori Wardens Project. The Māori Wardens Project was initiated in 2005 and was a joint venture between Te Puni Kōkiri and the NZ Police to provide training and support for the Wardens. As part of the Project the NZ Māori Wardens Association was established to govern and manage Māori Wardens and since the Project began, funding for the administration of the Māori Wardens has not been included in the NZMC’s funding. The NZMC allege that this Project has diminished the authority of the NZMC to administer the Māori Wardens in terms of the Act. Key issues in regard to this claim are set out in the Tribunal’s direction (at ):
The irreversible prejudice to the claimants has been, they allege:
- To confuse the warranting of Wardens, resulting in frustration for Māori Councils and Committees, and in Māori operating as Wardens without warrants or with invalid warrants;
- To compromise the Wardens’ kaupapa, that they are authorised by and accountable to their communities and are independent of the Police;
- To compromise the capacity of the NZMC, the District Councils and the Wardens to exercise self-government and to maintain that into the future;
- To render the NZMC and District Councils supplicants in relation to their autonomous functions;
- It prevents Māori exercising self-government;
- Māori including the claimants and the NZMC may have no further opportunity to be consulted regarding any proposals for reform concerning the Māori wardens; and
- A potential loss of mana in being side-stepped by the Crown in the consultation process.
The third claim relates primarily to the timing of the consultation and reform process. In particular, the NZMC alleged that the Crown has not acted in good faith by undertaking this reform process and pursuing a programme of consultation at a time when the NZMC was engaged and focusing resources on the National Fresh Water and Geothermal Inquiry (Wai 2358). The Tribunal’s direction also sets out the key issues in this claim: (at )
The claimants allege that the prejudice to them has been to:
- Confuse the Māori community as to the capacity of the NZMC to lead the water claim;
- Create uncertainty amongst co-claimants, advisors and persons contributing to costs;
- Frustrate co-claimants who have planned for many years to protect their water rights;
- Divert the limited resources of the NZMC from the focus on the Water claim to engage with the Māori Community Development Act 1962 reform process thus making it more difficult to prosecute the Water claim; and
- Undermine the NZMC’s authority and mana.
Karen Waterreus, the Secretary for the NZMC, referred to four key areas of concern in her evidence in support of the NZMC’s application (see [63-66]).
First, the consultation process has been developed without regard to the right of self-determination. The NZMC sees its role as one mechanism for the expression of Māori self-determination and so the reform of the Act is also inextricably connected with Māori self-determination. By continuing with the reform process when the NZMC had expressly signaled that it did not agree with the Crown-led process, the Crown has not acted consistently with this right to self-determination.
Second, the consultation material failed to put the 2010 Select Committee report in context, and in particular does not address the significant reforms. In particular, the consultation material does not address the actions that the NZMC had taken to improve its governance and administration following the Select Committee report. Nor did the consultation material identify the role that the Crown has played in administering the Māori Wardens, which has contributed to some of the issues with the Māori Wardens.
Third, Ms Waterreus noted that the consultation material failed to put the Act in context. Without full and accurate background information, consultees are not able to participate in the process for the reform of the Act in a way that is appropriately informed and effective.
Fourth, consultation hui organized by the Crown did not allow for meaningful input. Ms Wattereus argued that the NZMC ought to have had input into the schedule for consultation hui, especially given the NZMC’s statutory role and the potential implications of the reform process for the NZMC.
The Crown opposed the application for urgency on the basis that it was premature because, subsequent to the Cabinet’s December 2013 decision to undertake further engagement, there is now no imminent or pending Crown action in relation to the review of the Act (see [67-85]). Though the Crown acknowledged that aspects of the claims that relate to the Māori Wardens remain live, the Crown submitted that there was no longer any urgency in relation to these matters.
The Tribunal agreed to grant an urgent hearing in respect of some aspects of the claim. In relation to the First and Second claims the Tribunal stated:
We consider that there are grounds for urgency as this is an exceptional case because of the unique nature of this claim, the history of the legislation and its recognition of the right of Māori to self-government, the unique nature of the Council system and the inextricable link and development of the Māori Wardens under the agency of Māori communities and the District Councils. (at )
The Tribunal noted that whether the engagement process that has been undertaken by the Crown to date is adequate “can only be ascertained from a full hearing into the claim” (at ).
The Tribunal did not accept the Crown’s argument that limiting the NZMC involvement in this process was justified because the NZMC has a conflict of interest in this matter (at ). Furthermore, the Tribunal questioned whether the Crown itself could be seen as “a neutral facilitator in this process when it is actively promoting the establishment of a national body” (at ).
However, the Tribunal rejected the application for urgency in respect of the Third Claim, noting that the NZMC itself is responsible for deciding what matters it will prioritise and how it allocates its resources:
In the end the choices made by NZMC in that regard are its own and cannot be attributed to bad faith on the part of the Crown without clear and compelling evidence. No such evidence has been provided. (at )
The Tribunal directed that a full hearing for this claim be scheduled for March 2014.
Subsequently the Tribunal’s Chairperson has appointed Deputy Chief Judge Fox as the Presiding Officer for the Wai 2417 inquiry and Miriama Evans, Tania Simpson, Ronald Crosby and Dr Grant Phillipson as the Tribunal members who will conduct this inquiry (Wai 2417, 2.5.009, 16 January 2014).]]>
Practice Note – November 2013 – citation of Māori Land Court and Māori Appellate Court decisions
Vesting land in hapū – Manuirirangi v Parininihi ki Waitotara Incorporation – Waiokura Te Kauae blocks (2013) 311 Aotea MB 104
Treaty settlement legislation before the House of Representatives in 2013
Māmari Stephens reviews Lords of the Land – indigenous property rights and jurisprudence of empire
Professor David V Williams reviews The Native Land Court: A Historical Study, Cases and Commentary, 1862-1887
Editorial – Remarks at the celebration of the Māori Law Review’s 20 year anniversary - Māmari Stephens
Download the Māori Law Review December 2013 (589 KB PDF).]]>
Download the 2013 Practice Note regarding the Citation of Māori Land Court and Māori Appellate Court decisions here (276 KB PDF).
This Practice Note confirms the current practice for citation of Māori Land Court and Māori Appellate Court decisions. It provides a range of citation exemplars to assist in citation of court decisions.
The Court has advised that there are some minor amendments made to citation of decisions:
Lords of the Land – indigenous property rights and the jurisprudence of empire
Oxford University Press 2011 (523 pages, ISBN: 9780199568659, eISBN: 9780191731273)
Reviewed by Māmari Stephens, senior lecturer, Faculty of Law, Victoria University of Wellington.
By the time the Constitutional Advisory Panel released its final report on the Constitutional review in early December, it was clear, that without the heft of a Royal Commission, the Panel’s job was always going to be difficult. With no evidence that the present government would act upon any recommendations, the Panel had to invite, corral, interpret and make sense of New Zealanders’ beliefs and aspirations about how we carry out the business of governing ourselves, within a limited frame of reference.
The resulting report is large, informative, and interesting, as much for what it says as for what it doesn’t (or cannot) say. One sentence of the Report struck me on my first reading: “During the Conversation the Panel heard many calls for more information, in particular about the history of how the current arrangements evolved.” (At p 18) Another striking part of the report to my eyes was Appendix E, a chronological list of constitutionally relevant developments that began in 1835 with the signing of the Declaration of Independence and ending with the 2011 referendum on the voting system. This kind of list (like the one put out by the Constitutional Arrangements Committee in 2005) seems to offer readers some assistance in how to make sense of our history and contributes to a reassuring notion that our constitution has evolved and any imperfections will be fixed by the further and better evolution of our constitutional institutions (Inquiry to Review New Zealand’s Existing Constitutional Arrangements, Report of the Constitutional Arrangements Committee (2005)). As former Governor General Dame Sylvia Cartwright put it in 2006, marking ten years of MMP; “We have come a long way and show increasing sureness of step.” (‘Our Constitutional Journey’.) The road is long, with many a winding turn, as the Hollies put it in He ain’t heavy, he’s my brother. “But”, the song goes on, “we’ll get there.”
Those of us who find such evolutionary approaches reassuring in the context of our constitutional history will find Mark Hickford’s book a difficult one, because he insists on reflecting an important truth about our legal history: it’s messy.
In brief, Lords of the Land sets out to employ the histories of indigenous property rights as a lens by which to identify a constitutional framework which undergirded New Zealand’s complex and contested discourses about political authority. While the book’s main focal point is New Zealand, significant material also deals with how the ideas of indigenous property rights and the jurisprudence of empire intersect and travel through countries such as Canada, South Africa, and Australia. The book covers quite a short period (mainly 1840-1862) as Hickford seeks to identify in that period some of the extraordinarily important roots of our constitutional thinking that remain with us still, even if few of us that contributed to the Constitutional Conversation knew it.
Hickford’s approach will not reassure lawyers or others who prefer, or yearn for, a tidy, reductionism in New Zealand’s legal history. Such reductionism would reveal our legal and political history to be coherent, giving rise to tidy, discoverable principles and institutions that can then be applied and used to assist us to solve modern problems. Or indeed, this approach might free us to concoct modern principles for modern times that pay courtesy, but not deference, to our past. Either way, certainty and tidiness would indeed be helpful, particularly in dealing with the relationships between Māori, the Crown and settlers as those three main groups in the 19th century shaped the basis of modern New Zealand.
Instead, one of the recurrent ideas in Hickford’s work is that New Zealand constitutionalism, for example, has been formed, not by the tidy and programmatic establishment of appropriate constitutional bodies and structures, but by messy, problematic and uncertain negotiations between Māori and Pākehā, such as those involved in concluding land purchase agreements, that have quite literally comprised ‘punctuated moments in conversations without end.’ (Lords of the Land at p 9.) Hickford supports this important idea by his insistence on earthing his analysis in the actual behaviours, interactions and practices of the people he writes about. At times this approach lends a certain relentlessness to the reader’s experience: most historical figures and ideas discussed in the text demand, and receive, thorough contextualisation. This approach means the book is difficult to read in a linear fashion. The font is small, there are almost no illustrations, and most pages feature only one or two paragraphs. These factors, along with the sheer complexity of the content, create density in the text that may be off-putting to a casual reader.
One important theme in this text is identifying how the anglophone world came to understand Māori in the late 18th and early-mid 19th centuries, under ‘stadial’ theory. This theory enabled the identification, perhaps even classification of indigenous peoples according to their predominant modes of subsistence living. Rather than hunters, or ‘wandering savages’, Māori became understood primarily as horticulturalists with occasional local variation.
This understanding, still developing even as late as 1860, served to underpin colonial notions of native title in New Zealand. In turn, in various parts of the Empire, those colonial and imperial conceptions of indigenous property rights determined the nature of the legal frameworks set up to translate or incorporate those very rights into a system that anglophones could themselves recognise. How (often very elite) theoretical understandings of indigenous property rights traversed the world in the 19th century and how those understandings manifested themselves in the real and contested reality of Crown/settler/Māori relations in this country is a central concern and organising principle of this book.
Early Crown officials and other important English figures wanted to incorporate Māori modes of authority and rights to land into a coherent and recognisable framework based on English legal norms. This desire led, in the mid–late 19th century, to the creation of what Hickford calls ‘moments of communicability’ between the Crown and Māori polities, or windows of ‘opportunity’ for Māori to cooperate with the Crown within a Crown-controlled framework. Almost invariably Māori rejected these moments, preferring instead to negotiate directly with the Crown on a case-by-case basis. Chapter 7 explores how purchase transactions created extraordinarily complex negotiations between parties but also profound thinking about political and legal power within Māoridom, as well as within colonial and imperial domains. The pre-eminent example of this dynamic is the Waitara purchase, ultimately a touchpaper for war, the implications of which remain until this day.
Lords of the Land thereby explores and underscores Māori political constitutionalism and agency in the development of indigenous property rights within the New Zealand context (After all, it was said that Māori saw themselves as “politically lords of the land as well as landlords” (Herman Merivale, 7 July 1857, cited in Lords of the Land at p 1). This in itself is critically important, revelatory even, and serves to right some of the imbalance in New Zealand legal historiography to date. Hickford deals primarily in English language sources, and I look forward to future scholarship that will engage with Hickford’s theses, offering some further Māori-derived input to this extraordinarily rich narrative.
Another important topic in the book is the nascent colonial state’s view of itself apart from its imperial roots, particularly in dealing with Native title issues. As a kind of complicated case-study this dynamic is explored in chaper 6, which deals in particular with the Sewell-promoted idea of creating a Native Council to deal with matters Māori, taking Native affairs out of the sole province of the governor. At one level this experimental proposal reflected the ongoing tension between the New Zealand government and the British Parliament to whom the governor was responsible. At another level this idea reflects colonial anxiety to ensure Māori polities were brought within a unified and institutionalised structure. Ultimately the measure failed, but the story of that failure is an important microcosm of the kinds of tensions at work in the early New Zealand colonial government.
There is much yet to be done to do justice to the rich constitutional history of New Zealand’s peoples. Lords of the Land is an important book that takes us some considerable distance down that path. It is not an easy book to read. But the effort creates rewards.]]>