Partition - appeal dismissed from refusal to partition land - Whaanga v Smith  NZCA 121 - Craig Linkhorn
Encroachment and access - land swap and private right of way created - Smith - Waiomu 3B2B2B3B3 and Waiomu 3B2B2B3B1B (2015) 105 Waikato Maniapoto MB 12 (105 WMN 12)
Vesting order - granted ahead of creation of whānau trust - Braniff - Motatau 2 Section 52B (2015) 111 Taitokerau MB 299 (111 TTK 299)
Roadways - application dismissed - Quaife - Part Whakapoungakau Roadway 1B3G (2015) 127 Waiariki MB 171 (127 WAR 171)
Protecting hapū rangatiratanga - Ngāpuhi Mandate Inquiry Report (Wai 2490, 2015) - Dr Carwyn Jones
Waitangi Tribunal procedure - urgent inquiries - Tauranga Moana Governance Group (Wai 215, Wai 686) - Nicholas Coyle
Still wrestling with laws and histories – a comment on Grant Morris, Prendergast: Legal Villain? - Professor Mark Hickford
Our judges have selected Monique van Alphen Fyfe’s essay on the proposed reforms to Te Ture Whenua Māori Act 1993 as the winning entry for 2015. Congratulations Monique. The essay will be published in the February 2016 issue of the Review.
Victoria University Press, Wellington, 2014 (260 pages, ISBN: 9780864739377)
Reviewed by Professor Mark Hickford, Pro-Vice Chancellor and Dean of Law, Faculty of Law, Victoria University of Wellington.
Grant Morris’ biographical treatment of James Prendergast, mostly noted now for his time as Chief Justice for New Zealand from 1875 until 1899, is best regarded as an opening bid or starting point in getting at a nineteenth century figure in New Zealand’s colonial pasts. Morris’ biography rightly warns against simplifying nineteenth century historical figures as villains or as saints. The actuality is invariably more nuanced. If anything, the effort reveals not only the benefits of biography but also its limits at least as a means for accessing or excavating the sheer complexities and densities of historical context. The current warden of St Antony’s College at the University of Oxford, Margaret MacMillan, has recently cautioned in a history for general readers that ‘History and its people offer only a more modest insight and some modest encouragement: that we are all creatures to a certain extent of our own times, but that we can transcend or challenge what limits us’. I would communicate even much more in the way of humility and caution: ‘the “historical” past’ is a ‘complicated world, without unity of feeling or clear outline: in it events have no over-all pattern or purpose, lead nowhere, point to no favoured condition of the world and support no practical conclusions’; ‘[i]t is a world composed wholly of contingencies’.
Certainly, as I have observed much more fully elsewhere, Grant Morris’ Prendergast: Legal Villain? is a very welcome addition to what is still a stubbornly thin corpus of legal historical works relating to colonial New Zealand, despite encouraging signs of productivity in the arena of law and history specifically concerning diverse aspects of Crown-iwi-hapū interactions. In reviewing Morris’ book Sir Geoffrey Palmer has justifiably remarked that the legal historical corpus is ‘dangerously thin’. Notwithstanding the fairness of that observation, illustrations of a surging legal historical focus relative to New Zealand include the works of Richard Boast, particularly his recent forays into recovering Native Land Court jurisprudence, Damen Ward, this reviewer, and the later outputs of Paul McHugh. These authors have been referred to as an emerging ‘New Zealand school’ in legal history. Each pays attention to individuals, their often messy worlds and the intellectual foment with which they contended and in which they dwelt. Of those authors, two have been specifically trained in British imperial histories but have been fully engaged in legal or public policy practice since, whether as part of the public service or in the private sector, whereas the others have primarily trodden a path through their legal academic writings, whether at Victoria University of Wellington (Boast) or at the University of Cambridge (McHugh). Boast has participated in Waitangi Tribunal proceedings as a practitioner and an expert witness. Although both McHugh and Boast’s researches go back some decades, there is an undoubted recent surge in concentrated effort in recovering or excavating discomforting pasts, accounts that do not simply express casual comfort with a Mainichean binary of light and dark characterisation. What these efforts share is an appreciation of the rich archival background on offer (together with the willingness and appetite to sift through it) and a sensitivity to the methodologies shepherded by J.G.A. Pocock and Quentin Skinner. Nonetheless, the so-called ‘New Zealand school’ (if I may use that term) is more focused on practice than histories of jurisprudential, let alone political, thought. Constitutional histories are few and far between. Legal commentaries on constitutional development, let alone those in political science, are remarkably inadequate, shading into caricature or undue simplicity.
The purpose of this comment is to reflect on Morris’ engagement with law and history or perhaps we should say ‘laws’ histories’, noting that Morris has been explicit in his focus on a biographical treatment of James Prendergast, regarded as notorious for a single dictum in Wi Parata v Bishop of Wellington (1877) attributable to the judgment of both Prendergast and Christopher William Richmond (Morris at 199). Morris contends ‘Although it was perhaps legally dubious, the decision was a reflection of political thought and settler desires’ (Morris at 171). I am not sure that takes us very far at all in terms of explanatory power without much more analysis and elaboration, which is not really supplied throughout the book. The same sort of comment applies to the account of Prendergast as Attorney-General and in connection with Parihaka in 1881. After all, Morris’ stance is more biographical and, quite explicitly, does not tend to get into the heart of jurisprudential or intellectual thought (Morris at 59-60, 169-170). We have broad Belichesque references to ‘Better Britain’ (at 158) and ‘legal positivism’ (after Frederika Hackshaw, at 19) but little analysis beyond that.
The chapters on his early years in Britain and Australia are of interest. We have the fullest treatment to date on Prendergast the person in his roles as a legal practitioner, as Attorney-General, Chief Justice and ‘acting Governor’. The contretemps with George E. Barton is well handled in chapter 7. Morris extracts colour from that episode as well as the affair concerning Worley Bassett Edwards. As Morris says, it is regrettable that Prendergast’s professional career has been condensed to a single dictum in a particular judgment dating from 1877, namely the statement to the effect that, ‘[s]o far indeed as that instrument [the Treaty of Waitangi in 1840] purported to cede sovereignty – a matter with which we are not here directly concerned – it must be regarded as a simple nullity’. This reviewer has commented on the reception of Wi Parata in other places, as has David Williams.
Morris’ effort seeks to evade the snare of a mono-dimensional caricature in dealing with Prendergast. He aims to rescue his biographical subject from being typecast as a ‘legal villain’ but without doing so in a way that apologises or exculpates Prendergast for any failures or errors of judgement – to make errors is the lot of the frail creatures we humans are. We also have David Williams’ sometimes provocative discussion of the Wi Parata litigation and how to situate it doctrinally and the two books ought to be read together. It is fair to say that Williams is much more assured than Morris in dealing with the procedural limits operating on Prendergast and Richmond in Wi Parata when addressing how to impeach a Crown grant (to illustrate, an appreciation of the relevant nineteenth century case law concerning writs of scire facias is a vital component). It is also the case that Morris is in error to ascribe the marginalia on the Crown Law Office copy of the report of Wi Parata to Richmond’s hand (Morris at 155). Williams is clear that it was Richmond's handwriting (notated with 'CWR' for Christopher William Richmond) in the Wellington High Court library copy. I located a copy of the report in the Crown Law Office library and forwarded this to Williams in the first instance for his interest as he was preparing his book manuscript. It contained some marginalia directing readers to an annotated version to be found in the Supreme Court (now the High Court).
Biography, unless skilfully pursued in relation to politically and professionally active figures, can omit critical colour from the relationships and intellectual life of an individual. Examples of well executed historical biographies of scholarly weight include John Bew’s work Castlereagh: A Life, H.C.G. Matthew and Richard Shannon’s volumes on William Ewart Gladstone. Based on his James Ford lectures at the University of Oxford, we also have Roy Foster’s adroit weaving of personal relations with assorted intellectual-political orientations in relation to the interpersonal, intellectual and insurrectionary activities of a generational cohort in Ireland until 1923. It is not evident to this reviewer that Morris matches this sort of work. To do so would require extensive interaction not only with the ‘Justice Department’ series records in Archives New Zealand or the printed primary sources in the Appendices to the Journal of the House of Representatives (as per the endnotes) but also the range of relevant official manuscript records, including those in the Department of Internal Affairs series or in the legislation (‘LE’) file series. If this was to be done, we could at least get a sense of how others might have interacted dialogically or otherwise with Prendergast’s opinion work as first Law Officer, for instance. Likewise, the Colonial Office records in Britain could have been mined (given a number of Prendergast’s opinions were forwarded to the relevant secretary of state), as they often supply fascinating insights into how inter-professional rivalries or disagreements in colonial settings might have been regarded or analysed. It appears from the endnotes that the Department of Internal Affairs’ archives were not extensively consulted. There is an extensive collection of Tauranga confiscation records including the correspondence of Chief Judge Fenton and Prendergast’s viewpoint as Attorney-General on the status of the Native Land Court in Tauranga, for example. There are, of course, certain constraints, which signify that Prendergast might not have been the easiest biographical subject. For one thing, his personal papers, although useful for analysis as to his relations with familial ties, do not (it seems) convey as much richness regarding his jurisprudential thought or legal professional activities on a consistent basis. In this fashion, his papers are less rewarding than those of Henry Samuel Chapman, appointed as a puisne judge for the southern district of colonial New Zealand in 1843.
Morris has done a service then in producing a publication out of his doctoral thesis at the University of Waikato in 2001. Nevertheless, more work needs to be undertaken to excavate the intellectual histories of New Zealand colonial legal and political thought.
 Margaret MacMillan, History’s People: Personalities and the Past (Text Publishing, Melbourne, 2015) at 347-348.
 Mark Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1 at 1-2, citing Michael Oakeshott, Rationalism in Politics and Other Essays (Liberty Fund, Indianapolis, 1991) at 182.
 Refer to Mark Hickford, review, Prendergast: Legal Villain? Grant Morris (Victoria University Press, Wellington, 2014) (2015) 26 NZULR (forthcoming).
 Geoffrey Palmer, review, https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/lawtalk-856/prendergast-legal-villain, last accessed 28 September 2015.
 Older works in colonial history – for instance, A.H. McLintock, Crown Colony Government in New Zealand, (R.E. Owen, Wellington, 1958) or NA Foden The Constitutional Development of New Zealand in the First Decade (L.T. Watkins, Wellington, 1938) (who admittedly only took the discussion to 1849); and J Hight and HD Bamford The Constitutional History and Law of New Zealand (Whitcombe and Tombs, Christchurch, 1914) – are still resorted to, testifying to the comparative dearth of quality products or a lack of awareness of publications produced on New Zealand legal histories throughout the past decade, often primarily in publishing markets in the United Kingdom and North America.
 Richard Boast, The Native Land Court: A Historical Study, Cases and Commentary 1862-1887 (Brookers, Wellington, 2013); Richard Boast, The Native Land Court Volume 2, 1888-1909 (Brookers, Wellington, 2015).
 Damen Ward, ‘Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court, c1840–60’ (2006) 34 Journal of Imperial and Commonwealth History 483; Damen Ward, ‘Territory, Jurisdiction, and Colonial Governance: “A Bill to Repeal the British Constitution”, 1856–60’, (2012) 33 Journal of Legal History (JLH) 313; Damen Ward, ‘Imperial Policy, Colonial Government and Indigenous Testimony in South Australia and New Zealand in the 1840s’, in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, New York, 2010), 229–247.
 Mark Hickford, ‘Framing and Reframing the Agōn: Contesting Narratives and Counter-Narratives on Māori Property Rights and Political Constitutionalism, 1840–1861’, in Saliha Belmessous (ed), Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford University Press, New York, 2011), 152–181; Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (Oxford University Press, Oxford, 2011); Mark Hickford, ‘Law and Politics in the Constitutional Delineation of Indigenous Property Rights in 1840s New Zealand’, in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, New York, 2010), 249–268; Mark Hickford, ‘“Vague Native Rights to Land”: British Imperial Policy on Native Title and Custom in New Zealand, 1837–1853’ (2010) 38 Journal of Imperial and Commonwealth History 175; Mark Hickford, ‘Strands from the Afterlife of Confiscation: Property rights, constitutional histories and the political incorporation of Māori, 1920s’, in Richard Hill and Richard Boast (eds), Raupatu: The Confiscation of Māori Land (Victoria University Press, Wellington, 2009), 169–204.
 P.G. McHugh, Aboriginal Societies and the Common Law (Oxford University Press, Oxford, 2004).
 Ian Hunter, ‘Natural Law, Historiography, and Aboriginal Sovereignty’ (2007) 11 Legal History 137 at 139; also P.G. McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, Oxford, 2011) at 238.
 Having said that, one should observe that Samuel Carpenter notes how Hickford, Lords of the Land, is, methodologically at least, an exercise in intellectual history and analyses of political as well as juristic thought in practice (Samuel Carpenter, review of Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire, (2013) 47 New Zealand Journal of History 83, 84).
 See Damen Ward, ‘Territory, Jurisdiction, and Colonial Governance’ and Hickford, Lords of the Land.
 See the comments in Mark Hickford, ‘The Historical, Political Constitution — Some Reflections on Political Constitutionalism in New Zealand’s History and its Possible Normative Value’  New Zealand Law Review 585 at 586-587, 593-594, 597-598, 621-622; Mark Hickford, ‘Considering the Historical-Political Constitution and the Imperial Inheritance in Mid-Nineteenth Century New Zealand: Balance, Diversity and Alternative Constitutions’, (2014) 12 New Zealand Journal of Public and International Law (NZJPIL) 145 at 148 (and note 16); Mark Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1 at 3-4.
 For a general discussion, refer to Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1.
 As I point out more fully in Mark Hickford, review, Prendergast: Legal Villain? Grant Morris (Victoria University Press, Wellington, 2014) (2015) 26 NZULR (forthcoming).
 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC) at 78 (emphasis added).
 Mark Hickford, ‘John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920’ (2008) 38 VUWLR 853 at 874-882, for instance. David Williams, A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011).
 The writ of scire facias was a judicial writ founded on some record that required the person against whom the writ was brought to show why the party bringing the writ should not have the advantage of the record in judgment. On the operation of writs of scire facias, refer to Mark Hickford ‘“Settling Some Very Important Principles of Colonial Law”: Three “Forgotten” Cases of the 1840s’ (2004) 35 VUWLR 1 at 18 (and note 79).
 David Williams, A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011) at 149.
 John Bew, Castlereagh (Quercus, London, 2011); H.C.G. Matthew, Gladstone (Oxford University Press, Oxford, 1999); Richard Shannon, Gladstone: God and Politics (Continuum, London, 2007); Richard Shannon, Gladstone: Peel’s Inheritor 1809-1865 (Penguin, London, 1982); Richard Shannon, Gladstone: Heroic Minister 1865-1898 (Allen Lane, London, 1999).
 R.F. Foster, Vivid Faces: the Revolutionary Generation in Ireland 1890-1923 (Allen Lane, London, 2014)
 See Rolleston to Fenton, 22 February 1866, NLC66/297, Archives New Zealand, and enclosures.]]>
Judicial review - refusal to make binding recommendations - Flavell v Waitangi Tribunal  NZHC 1907 - Baden Vertongen
The Ngāti Kahu Remedies Report - a further comment in the wake of Flavell v Waitangi Tribunal  NZHC 1907 - Karen Feint
Costs - jurisdiction to award costs for a judicial conference - Ratima - Whirinaki 3 (formerly known as Whirinaki No 1 Section 2F2C) (2015) 126 Waiariki MB 73 (126 WAR 73)
Succession - to siblings of deceased - Walker v Tonihi - The Estate of Te Aokatoa Wirihana (2015) 43 Takitimu MB 31 (43 TKT 31)
Trusts - variation of trust order - Tane - Hauturu East 8 (2015) 104 Waikato Maniapoto MB 95 (104 WMN 95)
Trusts - enforcement of trust obligations and removal of trustees - dismissed - Katu v Peni - Tiroa E and Te Hape B Trusts (2015) 127 Waiariki MB 184 (127 WAR 184)
Trusts - appointment, replacement and removal of trustees - Hill - Otakanini Māori Reservation (2015) 108 Taitokerau MB 76 (108 TTK 76)
Trusts - removal of trustee - trustee suspended - McGregor v Hutcheson - Porangahau 1B4’O’2 Trust (2015) 43 Tākitimu MB 15 (43 TKT 15)
Partition - application granted - Searancke - Lot 3 DP 427106 & Pouawa 1 Sbdn 3 Lot 2 Sec 7 Block (2015) 51 Tairawhiti MB 66 (51 TRW 66)
Procedure - change of venue refused - Ahoy v Henare - Parengarenga 3G Ahu Whenua Trust (2015) 108 Taitokerau MB 66 (108 TTK 66)
Protecting hapū rangatiratanga - Ngāpuhi Mandate Inquiry Report (Wai 2490, 2015) - Dr Carwyn Jones
Waitangi Tribunal procedure - urgent inquiries - Tauranga Moana Governance Group (Wai 215, Wai 686) - Nicholas Coyle
Waitangi Tribunal procedure – urgent inquiries – Motiti Island Rena Resource Consent Funding Claim (Wai 2511) - Nicholas Coyle
Māori in the seafood sector (fisheries and aquaculture) - the year in review - Justine Inns
The Treaty of Waitangi and international law - Sir Kenneth Keith delivered this seminar on 23 September 2015 at the Faculty of Law, Victoria University of Wellington
Implementing the UN Declaration on the Rights of Indigenous Peoples – recent developments in international law - Tracey Whare delivered this seminar on 8 September 2015 at the Faculty of Law, Victoria University of Wellington
Legal Māori Resource Hub - explore how Māori language has been used in legal contexts over nearly two centuries
Entries have now closed for the 2015 Sir Edward Taihakurei Durie student essay competition sponsored by the Māori Law Review. For details on the competition go here.]]>
Waitangi Tribunal (Wai 2490, 2015) (pre-publication version)
4 September 2015
The Waitangi Tribunal has upheld claims that the Crown breached the principles of the Treaty of Waitangi in recognising the mandate of a negotiating body, Tūhoronuku, to enter settlement negotiations with the Crown about historical claims on behalf of all members of Ngāpuhi.
Download the pre-publication version of the Ngāpuhi Mandate Inquiry Report (4.11 MB PDF).
|Protecting hapū rangatiratanga - Ngāpuhi Mandate Inquiry|
|Date||4 September 2015|
|Case||Ngāpuhi Mandate Inquiry Report (4.11 MB PDF) (pre-publication version)|
|Citation||Wai 2490, 2015|
|Member(s)||Judge Sarah Reeves (Presiding), Robyn Anderson, Tureiti Lady Moxon, Kihi Ngatai|
|Earlier/later decisions||Wai 2341, Wai 2429, Wai 2431, Wai 2433, Wai 2434, Wai 2435, Wai 2436, Wai 2437, Wai 2438, Wai 2440, Wai 2442, and Wai 2443, 12 September 2014.|
|Legislation cited||Treaty of Waitangi Act 1975, preamble, s 6(4)|
|Cases cited||Waitangi Tribunal, He Whakaputanga me te Tiriti/The Declaration and the Treaty : The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014); Waitangi Tribunal, Te Whanau o Waipareira Report (Wai 414, 1998) (see (1998) August Māori LR); Waitangi Tribunal, The Pakakohi and Tangahoe Settlement Claims Report (Wai 142, Wai 758, 2000); Waitangi Tribunal, The Te Arawa Mandate Report (Wai 1150, 2004); Waitangi Tribunal, The Te Arawa Mandate Report : Te Wahanga Tuarua (Wai 1150, 2005); Waitangi Tribunal, The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007); Waitangi Tribunal, The East Coast Settlement Report (Wai 2190, 2010); CREEDNZ v Governor-General  2 NZLR 172; The Te Arawa Settlement Process Reports (Wai 1353, 2007); Waitangi Tribunal, Whaia Te Mana Motuhake : In Pursuit of Mana Motuhake. Report on the Māori Community Development Act Claim (Wai 2417, 2014); New Zealand Maori Council v Attorney General  1 NZLR 641 (CA); Waitangi Tribuna, Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1985); Waitangi Tribunal, Report of the Waitangi Tribunal on Te Reo Maori (Wai 11, 1986); Waitangi Tribunal, The Ngai Tahu Sea Fisheries Report (Wai 27, 1992); Waitangi Tribunal, The Ngawha Geothermal Resource Report (Wai 304, 1993); Waitangi Tribunal, Tauranga Moana: 1886–2006 Vol 1 (Wai 215, 2010); Tauranga Moana: 1886–2006 Vol 2 (Wai 215, 2010); Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim (Wai 9, 1987); Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wai 22, 1988); Waitangi Tribunal, Te Tau Ihu o te Waka a Maui: Preliminary Report on Customary Rights in the Northern South Island (Wai 785 Prelim 2, 2007) (see (2007) September Māori LR); Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims Vol 1 (Wai 814, 2004); Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims Vol 2 (Wai 814, 2004) (see (2005) July Māori LR; (2005) August Māori LR); Waitangi Tribunal, The Ngāti Rangiteaorere Claim Report (Wai 32, 1990); Waitangi Tribunal, The Ngāti Awa Raupatu Report (Wai 46, 1999); Waitangi Tribunal, The Whanganui River Report (Wai 167, 1999); Haronga v Waitangi Tribunal  SCNZ 53.|
|Overview and result||The Waitangi Tribunal upheld claims that the Crown breached the principles of the Treaty of Waitangi in recognising the mandate of a negotiating body, Tūhoronuku, to enter settlement negotiations with the Crown about historical claims on behalf of all members of Ngāpuhi. The Tribunal examined how Tūhoronuku purported to represent hapū and its ability to reflect their views and decisions. The Tribunal concluded that the Crown had an obligation to protect the ability of hapū to exercise their rangatiratanga in deciding how and by whom they would be represented in settlement negotiations. The Crown failed to do this when it recognised the Tūhoronuku mandate without clear evidence of hapū support. Further, the structure and processes of Tūhoronuku deny hapū any effective means of withdrawing from it or exerting control over how it represents them. The Tribunal recommended that the Crown delay negotiations to give Ngāpuhi an opportunity to address the flaws the Tribunal identified. There was no need to repeat the mandating process but Ngāpuhi hapū should be given the opportunity to confirm whether they wish to be represented in settlement negotiations by Tūhoronuku.|
In February 2014 the Crown recognised a mandate submitted by the Tūhoronuku Independent Mandated Authority (the Tūhoronuku IMA). The mandate obtained and submitted for recognition was obtained from Ngāpuhi members to enter negotiations to settle Treaty of Waitangi claims about historical events (defined to mean events before 21 September 1992). The proposed negotiations were to secure a settlement of these grievances for all of Ngāpuhi.
Ngāpuhi is recognised as the largest tribe in Aotearoa New Zealand. The iwi lands are in Te Tai Tokerau (Northland) and the tribe has more than 125,000 affiliates as measured by census data (2013).
This urgent inquiry by the Tribunal came about after some Ngāpuhi claimants, acting in particular on behalf of Ngāpuhi hapū and collectives of hapū, objected to the approach taken by Tūhoronuku in claiming to set out to negotiate a settlement for all of Ngāpuhi. The Ngāpuhi hapū who sought this inquiry did not accept that Tūhoronuku had obtained authority to represent them. (See (2014) November Māori LR.)
The major issues in the inquiry included whether the Crown had predetermined its decision to recognise the Tūhoronuku mandate and whether the Crown had recognised Tūhoronuku as holding a mandate for all Ngāpuhi members without ensuring this was supported by hapū (the sub-tribes of Ngāpuhi). The claimants argued that the Crown's recognition of the Tūhoronuku mandate had the effect of undermining hapū rangatiratanga.
The competing positions were summarised by the Tribunal as follows (at 1.2):
The two sides of the argument also reflect different socio-political values. The Tūhoronuku IMA (and the Crown) rely on a one-person one-vote democratic process as demonstrating support for a mandate that has been properly recognised as reflecting the majority of Ngāpuhi individuals. The Tūhoronuku IMA says the claimants are a ‘loud minority’ and that there will always be those who are unhappy with the outcome of a voting process. Supporters of the Tūhoronuku IMA see it as representing the ‘modern-day demographics of Ngāpuhi’, including ‘those Ngāpuhi who are not actively engaged presently, but who stand to benefit from the settlement of past wrongs’.
The claimants say that the hapū, as the basic building blocks of Ngāpuhi, must decide important issues regarding the settlement of their claims. They argue that their tikanga is not one of ‘democracy’ in western terms, but that it is perfectly capable of reaching consensus by requiring participation, discussion kanohi ki te kanohi, and resolution of differences on matters of shared concern. They see an outcome based on a majority vote by individuals, without establishing hapū consent, as undermining their rangatiratanga, especially when the issue is the crucial one of mandate to negotiate a Treaty settlement. In their view, this is not the way forward to an enduring settlement that will empower future generations (see chapter 2).
The claims were heard at Waitangi in December 2014 and Wellington in March 2015.
On the first issue the Tribunal found that the Crown did not predetermine its decision to recognise Tūhoronuku's mandate.
The Tribunal found the Crown’s involvement in the mandating process was regular, genuine, and represented high-level engagement over a period of years.
The Tribunal said that there was ample evidence of the parties engaging in good faith to accommodate differences.
On the second issue the Tribunal determined that any entity seeking to represent Ngāpuhi in settlement negotiations had to produce clear evidence of hapū support for its mandate. The Tribunal found that this is because Ngāpuhi is characterised by strong autonomous constituent hapū.
Because the importance of hapū autonomy was clear, the Tribunal found that the Crown had a primary Treaty duty to actively protect the rangatiratanga of Ngāpuhi hapū when the Crown took decisions to recognise how and by whom those hapū would be represented in settlement negotiations.
The Tribunal found that the Crown did not meet this duty when it recognised the Tūhoronuku mandate without clear evidence showing that hapū supported that mandate.
The Tribunal agreed therefore that recognition of Tūhoronuku's mandate undermined the rangatiratanga of hapū.
The Tribunal also acknowledged that the structure and processes of Tūhoronuku undermined hapū and the ability of hapū to make decisions about whether and how to settle Treaty of Waitangi claims about historical events.
The Tribunal found that Ngāpuhi hapū were prejudiced when the Crown had breached the principles of the Treaty of Waitangi in recognising the Tūhoronuku mandate for all Ngāpuhi members without ensuring this was supported by hapū.
This meant that under the Treaty of Waitangi Act 1975 the claim was well-founded and the Tribunal was empowered to make recommendations. Recommendations can be about the steps the Crown should take to compensate for or remove the prejudice found to exist or to prevent others from suffering similar prejudice.
The Tribunal did not recommend that a wholly new mandate process should take place.
Nor did the Tribunal recommend that the Crown should withdraw its recognition of the mandate.
The Tribunal accepted that Ngāpuhi members have given broad support for settlement negotiations.
The Tribunal's recommendations are tailored to address the flaws it found in the way the Tūhoronuku mandate was obtained. The Tribunal took the approach of recommending steps that could lead to Tūhoronuku being mandated to also lead negotiations on behalf of Ngāpuhi hapū.
The Tribunal recommended that the Crown halt for the meantime negotiations with Tūhoronuku to ensure there was an opportunity for Ngāpuhi to address the issues the Tribunal reported on.
The Tribunal considered it was important that Ngāpuhi hapū are given an opportunity to decide whether Tūhoronuku will represent them.
Here is the full text of the Tribunal's recommendations (at 5.3.2):
The Tribunal has grappled with the complexity of the situation presented in this inquiry. Ngāpuhi is New Zealand’s largest and most dispersed iwi and also one of its poorest. That there is a desire for settlement of historical grievances as well as an urgent need is generally agreed. We have found that the role of hapū is fundamental to Ngāpuhi tikanga, and hapū must play a decisive role in determining how and by whom the settlement of their historical Treaty claims will be negotiated. We have concluded that the Crown’s decision to recognise the Tūhoronuku IMA is in breach of its Treaty duty of active protection because that entity, as it is presently structured, is incapable of properly representing the interests and aspirations of hapū in negotiations with the Crown. We find the claims to be well-founded.
Having reached this conclusion, the Tribunal has several options as to the recommendations we could make. We could recommend that the Crown withdraw its recognition of the mandate, and that the mandating process be re-run. Although this was urged on us by some claimants, we consider that this would be neither a practical nor a constructive outcome. We recognise there is broad support for settlement within Ngāpuhi, and momentum towards settlement should not be stopped dead in its tracks. Although we consider the flaws we have identified in the Tūhoronuku IMA structure to be fundamental, we also consider they can be remedied without restarting the entire mandating process. Once remedied, the Tūhoronuku IMA will be capable of leading a negotiation on behalf of hapū. There are seven key remedial actions that need to take place.
First, the Crown must halt its negotiations with the Tūhoronuku IMA to give Ngāpuhi necessary breathing space to work through the issues that have been identified.
Secondly, hapū must be able to determine with their members whether they wish to be represented by the Tūhoronuku IMA.
Thirdly, those hapū that wish to be represented by the Tūhoronuku IMA must be able to review and confirm or otherwise the selection of their hapū kaikōrero and hapū representatives, so that each hapū kaikōrero has the support of their hapū.
Fourthly, Ngāpuhi hapū should have further discussions on the appropriate level of hapū representation on the board of the Tūhoronuku IMA.
Fifthly, the Crown should require as a condition of continued mandate recognition that a clear majority of hapū kaikōrero remain involved in the Tūhoronuku IMA.
Sixthly, there must be a workable withdrawal mechanism for hapū who do not wish to continue to be represented by the Tūhoronuku IMA.
Finally, if they exercise their choice to withdraw, hapū must be given the opportunity and support to form their own large natural groups.
We have weighed this approach against likely prejudice to those individuals and hapū who presently support the Tūhoronuku IMA and want the current negotiations to continue without pause. We acknowledge that the process we recommend will take time and could potentially delay settlement. We also acknowledge there is a risk that some groups will choose to leave the mandated structure, but we consider it is crucial that the Crown and Ngāpuhi take the opportunity now to resolve the fundamental issues we have identified, before negotiations proceed further. Leaving those issues unresolved will continue to have a corrosive effect on relationships both within Ngāpuhi and with the Crown. Hapū who are included in the mandate must want to be there and not feel they have been coerced or trapped. While the Crown submitted that a withdrawal mechanism would undermine the existing mandate, it also assured us there is significant support for the Tūhoronuku IMA among hapū. If this is indeed the case, then there should not be many groups who might choose to withdraw from the mandate. But enabling the mandate to be tested in this way may well encourage more hapū to participate actively and have input into the negotiations process, resulting in a stronger mandate and ultimately a settlement which is more likely to be robust, fair and enduring.
We recommend that the Crown’s negotiations with the Tūhoronuku IMA must now be put on hold until such time as the Crown can be satisfied of the following matters, which we discuss below:
- that Ngāpuhi hapū have been given the opportunity to discuss and confirm or otherwise whether they wish to be represented by the Tūhoronuku IMA in the negotiation of their historical Treaty claims;
- that hapū who wish to be represented by the Tūhoronuku IMA have been given the opportunity to confirm or otherwise their hapū kaikōrero and the hapū representatives on the Tūhoronuku IMA board;
- that Ngāpuhi hapū have been given the opportunity to discuss and confirm or otherwise whether they consider there is an appropriate level of hapū representation on the Tūhoronuku IMA Board;
- that the Tūhoronuku IMA deed of mandate has been amended to include a workable withdrawal mechanism for any hapū which does not wish to continue to be represented by the Tūhoronuku IMA; and
- in addition, the Crown should require as a condition of continued mandate recognition that a clear majority of hapū kaikōrero remain involved in the Tūhoronuku IMA.
Finally, we recommend that the Crown support hapū which withdraw from the Tūhoronuku IMA to enter into negotiations with the Crown to settle their Treaty claims as soon as possible and preferably at the same time as other Ngāpuhi negotiations. This will involve the Crown supporting and encouraging hapū, through the provision of information and financial support, to form into large natural group(s), and to obtain mandate(s) from their members.
The Tribunal offered the following concluding remarks (at 5.3.4):
Many of the witnesses appearing in opposition to the claimants expressed frustration at the possibility of further delay before proceeding to settlement. Yet it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused. The Crown must approach the task of negotiating settlement not only in a timely fashion, but also with a spirit of generosity and, as claimant counsel argued, ‘with care, with sympathy, and ... with humility’. It is clear that, in order for the Treaty relationship to be repaired, hapū must be returned to a position of authority. For this to happen, it is essential that hapū rangatiratanga and hapū tikanga are respected, protected and enhanced in mandating processes. In addition to our formal recommendations, we hope that all parties will build on the very real progress that has already been made and continue to strive for the restoration of Ngāpuhi’s social, cultural and economic position, the Crown’s honour, and the Treaty relationship itself.
Judicial review - refusal of Waitangi Tribunal to inquire urgently upheld - Tūrāhui v Waitangi Tribunal  NZHC 1624 - Stevie-Rae Hart
Protected objects - ownership and custody – Ngāti Rehia granted custody of taonga tūturu found in Kerikeri – Acting Chief Executive of the Ministry for Culture and Heritage - Taonga Tūturu found at Kerikeri (2015) 106 Taitokerau MB 210 (106 TTK 210)
Injunctions - occupants removed from land - Te Tumu Paeroa v Wharerau - Lot 9 DP 37339 (CFRNA971/29) (2015) 107 Taitokerau MB 262 (107 TKT 262)
Costs - District Court scale used - Kotahitanga Log Haulage Ltd v Forest Distribution Ltd - Mangaroa and other blocks Incorporated (2015) 126 Waiāriki MB 14 (126 WAR 14)
Ownership of land - whether land is General land owned by Māori - Baker v Thomas Baker Whānau Trust (2015) 41 Takitimu MB 281 (41 TKT 281)
Succession - directions sought on succession to General land owned by Māori - Jones - Pukawa D3 Trust (2015) 124 Waiariki MB 217 (124 WAR 217)
Status of land - roadway determined as Māori freehold land - Whakatāne District Council - Part Allotment Matatā Parish 6 (2015) 124 Waiariki MB 282 (124 WAR 282)
Alienation - respondent within preferred class of alienees - Foster v Wood - Taupo No. 23 B Section 1 (2015) 108 Taitokerau MB 43 (108 TTK 43)
Trusts - enforcing trustee obligations - no grounds made out - Ngatai - Tokata B8 Trustees (2015) 50 Tairawhiti MB 175 (50 TRW 175)
Trusts - application for directions and to enforce trustee obligations - Gibbs-Smith – Te Tii (Waitangi) A Maori Reservation (2015) 104 Taitokerau MB 193 (102 TTK 193)
Trusts - review and variation of trust order - Horne v Anaru - Pukehina M Sec. 2A, No Section 2B No.2 and M2D Aggregated (2015) 123 Waiariki MB 40 (123 WAR 40)
Trusts - removal of trustees - Porou – Whareongaonga 5 Trust (2015) 49 Tairawhiti MB 46 (49 TRW 46)
Trusts - removal of trustees and award of equitable compensation - Waaka v Harrison - Poike 14 (Waimapu Marae) (2015) 101 Waikato Maniapoto MB 216 (101 WMN 216)
Occupation orders - granted in the face of majority opposition - Peita –Panguru C27A2 Block (2015) 104 Taitokerau MB 5 (104 TTK 5)
Māori Incorporations - removal of members of committee of management denied - Tahata v Tahata - Proprietors of Ngāwhakatutu A1A (2015) 49 Tairawhiti MB 251 (49 TRW 251)
Title reconstruction - partition refused - insufficient support - Ogle - Mangamuka East No. 1B No. 1B (2015) 103 Taitokerau 284 (103 TTK 284)
Easements - application for right of way dismissed - Gisborne District Council v Hautapu - Tatarahake No. 1 Block (2015) 50 Tairawhiti MB 199 (50 TRW 199)
Māori in the seafood sector (fisheries and aquaculture) - the year in review - Justine Inns
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015
Download the Māori Law Review August 2015 (673 KB PDF).
Our 2015 seminars continue in Auckland during August where Tracey Whare, Bernadette Arapere and Paul Beverley will give seminars
Recent developments in co-governance and co-management - Paul Beverley talked about co-governance and co-management issues on 28 August 2015 at Buddle Findlay, Auckland
From historian to lawyer – differing perspectives - Bernadette Arapere delivered the fifth of our 2015 seminars on 20 August 2015 at the University of Auckland Faculty of Law
Implementing the UN Declaration on the Rights of Indigenous Peoples – recent developments in international law - Tracey Whare delivered this seminar on 13 August 2015 at the University of Auckland Faculty of Law
Legal Māori Resource Hub - explore how Māori language has been used in legal contexts over nearly two centuries
Entries are welcomed for the 2015 Sir Edward Taihakurei Durie student essay competition sponsored by the Māori Law Review. The competition is open until 5 p.m. Wednesday 30 September 2015. For details on the competition and how to enter go here.]]>
According to the Ministry for Primary Industries (MPI) 2015 Situation and Outlook for Primary Industries, the seafood industry accounted for around 3.7% of New Zealand’s primary sector exports, in the year ended 30 June 2014, down from 4.5% the previous year. The actual decrease in the value of seafood exports in real terms (not adjusted for inflation or exchange rates) was minimal, however – from $1.466B to $1.427B – with the apparent decline in contribution largely arising from growth in the value of the whole sector (from $32B to $38B) resulting from record high earnings by the dairy sector.
Both the overall make-up of the export sector (with China by far the largest market and aquaculture contributing around 20% of the total export value) and predictions for the future (modest growth in value and volume, driven mainly by expansion of aquaculture) are largely unchanged from previous years.
With all commercially significant wild capture fisheries managed sustainably under the Quota Management System, catch volumes have been largely stable over recent years and this is not forecast to change. Rather, shorter-term changes could come from a decrease in the number of foreign-owned fishing vessels operating in New Zealand’s Exclusive Economic Zone under charter to New Zealand companies. This would be as a result of changes made by the Fisheries (Foreign Charter Vessels and other Matters) Amendment Act 2014. This could have the effect of reducing catches as catching capacity declines, particularly in respect of some low value, high volume species, such as squid.
Modest growth in prices of less than 2% is forecast over the period 2016-19 (MPI, 2015 Situation and Outlook for Primary Industries, p.46), meaning that the industry’s focus will continue to be on developing higher-value products and increasing efficiency. At the same time, many sectors are investing in initiatives to not only ensure the sustainability of the fisheries they rely on, but to ensure that those efforts are demonstrated to regulators and consumers. For example, three orange roughy fisheries are well through the assessment process to be granted sustainability certification by the Marine Stewardship Council.
Another initiative will see the majority of vessels operating in the snapper fishery will carry on-board Vessel Monitoring Systems (VMS) by October 2015. VMS units will send data on vessel locations back to vessel owners and MPI 24 hours a day, as well as to Trident Systems, a fisheries research partnership formed by fishing companies to collect and analyse data with the objective of improving fisheries management.
Iwi-owned Aotearoa Fisheries Limited (AFL) recovered from an overall loss in 2013 resulting from its 50% subsidiary disposing of its investment in an Argentinian seafood company, Yuken, after several years of losses. Overall, AFL’s annual report shows that it posted a $21.9M profit for the year ended 30 September 2014, allowing it to pay dividends totalling $8.8M to Te Ohu Kaimoana Trustee Limited (Te Ohu) and Mandated Iwi Organisations (MIOs).
Meanwhile, the Sealord Group continues its efforts to build closer relationships with MIOs and, in October 2014, entered into partnerships (known as ‘Ihu to Mai”) with 17 iwi. As well as seeking to improve returns to both iwi and to Sealord, the partnerships aim to give iwi a more active involvement in the fishing industry.
Aquaculture was responsible for just over 20% of the value of seafood exports in the year ended June 2014. Prices are forecast to increase by 5% per annum and aquaculture products are expected to contribute 76% of total growth in the seafood sector in the period to 2019. In the same period, aquaculture is forecast to grow to 28% of all seafood exports.
Another year of limited availability of green-lipped mussel spat has had a negative impact on production of that species, which accounts for around 80% of aquaculture export revenue. The Primary Growth Partnership-funded project, SpatNZ, took a significant step forward in April 2015 by opening the country’s first purpose-built mussel spat hatchery and laboratory.
The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 came into force in August 2014. This legislation gives effect to the policy that all vessels fishing in New Zealand fisheries waters must be registered (or ‘flagged’) under the New Zealand Ship Registration Act 1992 and therefore owned or controlled by New Zealand companies and fully subject to New Zealand law. Key provisions of the Act will not come into force until 1 May 2016, though its impacts will begin to be clear some months before that, as foreign-owned vessels currently operating under charter to New Zealand companies, but flying the flag of their home countries, are likely to withdraw after the end of the current fishing year (31 September 2015) if they are not to be re-flagged.
There are have long been concerns that iwi will be disproportionately disadvantaged by the resulting reconfiguration of the deepwater fishing sector, particularly if the departure of foreign-owned vessels results in insufficient vessels with capacity to catch some species. Although iwi collectively hold around 20% of the quota for deepwater species, their individual holdings (as well as limited capital for investment) are far short of the quantities that would support the operation of their own vessels.
Disputes within iwi leading to litigation are seeing greater interpretation by the courts of the provisions of the Māori Fisheries Act 2004 (MFA). The MFA created the concept of Mandated Iwi Organisations (MIOs) and governs the mandating, recognition and, to some extent, the ongoing operation of those entities.
In Te Rūnanga o Ngati Hine v Te Rūnanga ā Iwi o Ngāpuhi – special aid (2014) Māori Appellate Court MB 133 (2014 APPEAL 133), see (2014) November Māori LR, the Māori Appellate Court granted an application for Special Aid funding under s 98 of Te Ture Whenua Māori Act 1993 in relation to an appeal arising from a dispute under s 20 of the MFA (see (2013) September Māori LR). The Court applied an earlier precedent on the nature of the special circumstances that must exist in order for a grant of funding to be made after the proceedings in question were complete. The judgment also notes the earlier ruling of Judge Ambler that, because s 181 of the MFA requires that the parties to a dispute must, within a reasonable time, endeavour to agree on a process for resolving the dispute and engage in that process before taking any other action under Part 5 of the MFA (including commencing proceedings in the Māori Land Court), Special Aid funding was not available to meet costs associated with such dispute resolution efforts.
Recent chapters of long-running litigation within and between entities representing Ngāti Maru (Taranaki) were played out in the Māori Land Court in early 2015, with Te Ohu Kaimoana (Te Ohu) drawn into the fray as a result of alleged impropriety by the trustees of the MIO for the iwi, the Ngāti Maru (Taranaki) Fisheries Trust. Maruera v Te Ohu Kaimoana Trustee Limited (2015) 335 Aotea MB 47 (2015 AOT 47), see (2015) March Māori LR, was a procedural decision on a request that Judge Harvey recuse himself from hearing an application by Te Ohu for an order described (at ) as effecting a “comprehensive series of solutions … to cover all the Ngāti Maru (Taranaki) representative entities” and to “provide a way forward as a whole”. The request for recusal was declined and the substantive application set down for hearing in April 2015, although it is understood that that fixture was subsequently adjourned to a later date.
Rudd v Muaūpoko Tribal Authority  NZHC 927 involved a direct challenge to the MIO status of the Muaūpoko Tribal Authority, which was constituted under the Incorporated Societies Act 1908 and recognised by Te Ohu as the MIO for Muaūpoko in December 2012. The Plaintiff sought a declaration under 21(3A) of the Incorporated Societies Act that the Authority’s Rules, (on which its recognition as a MIO depended) had not been properly adopted because of anomalies in the voting procedure at a critical hui. Collins J held that it had not been established, on the balance of probabilities that the requisite 75% majority had not been met at the meeting and that, in any event, the declaration of the vote’s results by the chairperson of the hui into the Authority’s minutes was, in accordance with the Rules, “conclusive evidence” that the resolution had been passed.
Even if that had not been the case, Collins J observed, he would not have exercised his discretion to set the Rules aside in part because “[s]ince adopting the 2011 Rules, the Authority has undertaken significant work in receiving and distributing benefits from fisheries assets” (at ).
The issues in Solomon-Rehe v Hokotehi Moriori Trust  NZHC 46, see (2015) May Māori LR, arose from a disputed 2012 election of trustees to the Trust which, in turn, raised an issue about the validity of 2010 amendments to the Trust’s governing Deed. In support of the validity of those amendments, the Plaintiffs relied on provisions of the MFA and the decision of Judge Milroy in Taipari v Hauraki Māori Trust Board.
The amendments in question had been passed by a postal ballot but without a hui-ā-Moriori. A key issue was whether s 17 of the MFA allowed amendments to the constitutional documents of a MIO to be made by a postal ballot alone, or whether both a postal ballot and a general meeting were required.
On that point, Brown J took a different view to Judge Milroy (though noting that Her Honour’s observation in respect of it was arguably made in passing) and held that the MFA, and s 18(1)(b)(ii) in particular, did impose a statutory requirement for a general meeting of a MIO to consider changes to the organisation’s constitutional documents (at -). It should be noted, however, that this requirement applies only to changes which relate to matters provided for, by or under the Act (s 18(1)).
As a result, independent interim trustees were appointed by the High Court to arrange the required meeting to consider again whether to change the constitutional documents and to arrange fresh elections of trustees. The intervention by the High Court was an exercise of the Court’s supervisory jurisdiction over charities. A number of MIOs are, or are trustees of, charitable trusts.
Particular scope for dispute between iwi lies in the requirements under the MFA for all iwi within a Quota Management Area to agree on their respective shares of the coastline within that Area, as the basis on which Te Ohu should allocate settlement quota for inshore fisheries species between them. Despite this, as at 30 September 2014, 43 MIOs had concluded coastline agreements, covering approximately 78% of the fisheries settlement assets allocated on the basis of coastline. In addition, Te Ohu has now, on at least two occasions, used its power under s 135 of the MFA to allocate settlement assets in the absence of agreement between affected MIOs.
Coastline disputes remain a vexed issue in some areas, however, as demonstrated in Te Ohu Kaimoana Trustee Limited v Te Rūnanga Nui o Te Aupōuri & Others (2015) 102 Taitokerau MB 1 (102 TTK 1), see (2015) June Māori LR. The background to the decision was that the MIOs of Te Aupōuri, Ngāti Kuri, Ngāi Takoto and Te Rarawa had been unable to reach agreement that would enable Te Rūnanga Nui o Te Aupōuri to submit a coastline claim to Te Ohu. Such a claim was a prerequisite to the allocation to Te Aupōuri of inshore settlement quota. The dispute was referred to Te Ohu in July 2013, but Te Ohu declined to determine it and instead referred the matter (under s 182(4) of the MFA) to the Māori Land Court for determination.
Having earlier accepted jurisdiction in respect of the application by Te Ohu, Judge Doogan (at ) described the invidious nature of the Court’s task:
What this means in practical terms is that the Court must now determine Te Aupōuri’s coastline entitlements over 233 kilometres of coastline and three harbours between Ngapae on the west coast and the midpoint of Rangaunu Harbour on the east coast. Te Aupōuri calculate their coastline interest at 66% of this area (approximately 134.2 kilometres). In some sections they claim exclusive interests and in others they acknowledge that either Ngāti Kuri or Ngāi Takoto have an interest. They do not acknowledge any Te Rarawa interest.
At the request of all parties, and acknowledging the absence of case law, the Court accepted the proposal that it should provide observations as provisional guidance on the applicable factors in the proceedings. The decision is notable for its discussion of the principles, processes and compromises that led to the model for allocating the fisheries settlement assets that is now enshrined in the MFA, and the extent to which that background is now relevant in interpreting the Act.
After canvassing the submissions from the parties, His Honour observed:
The parties seek guidance on the applicable factors and criteria in this case because the MFA is silent on the matter. The submissions, however, suggest that what divides the parties is not so much uncertain or ambiguous statutory criteria, but disagreement over how best to achieve a fair and equitable distribution of the Fisheries Settlement assets. (At .)
In broad terms, Te Aupōuri see determination of their coastline entitlement as a desirable and necessary prerequisite to allocation of assets to which they are entitled as a result of the 1992 Fisheries Settlement. The operating principle is that allocation based on coastline is in recognition of the rangatiratanga of an iwi over its coastline. The primary question to resolve therefore is the relative strength of their customary interest. An inquiry to determine the coastal boundary points of its tribal rohe is called for… (At .)
Ngāi Takoto, Ngāti Kuri and Te Rarawa contest this approach. They see referral to the Court for determination on the basis of a mana whenua/mana moana-type inquiry as both divisive and inherently difficult given the history and subject matter. (At .)
Given the highly overlapped nature of the coastal interests and the complex pre- and post-colonial history, the iwi involved, other than Te Aupōuri, express a wish for an outcome that is based upon what unites Te Hiku iwi in terms of shared whakapapa and history, rather than an outcome that divides them along potentially inequitable lines based upon arbitrary judgments about territory and power at any particular time. (At .)
Ultimately (albeit provisionally), His Honour reached the view that the Court’s task had more in common with the approach articulated by Te Aupōuri, namely:
It is important to bear in mind, however, that the relevant issue remains the relative strength of iwi customary interests in the coastline and harbours at issue. The fairness or equity of allocation according to those interests is not a matter the Court can revisit. (At .)
The extent to which (if at all) the statutory scheme enables the Court to adopt a degree of pragmatism in coming to its determination is a matter I would like to hear further from the parties, after hearing the evidence. My preliminary view is that such an approach may be available. The quality and extent of the available evidence will be the critical factor. In this context, relevant evidence of probative value will be evidence directed towards iwi customary interests in the coastline (and harbours). It would not, for example, be open to the Court to simply adopt and apply the current one third, one third, one third interim allocation agreement on the basis that this is fair and equitable. Such a determination would only be possible if that was what the evidence as to customary rights in the coastline established. It is not open to the Court to question the fairness or equity of the allocation model incorporated in the MFA. (At .)
Finally, however, His Honour concluded by accepting the submission on behalf of Te Ohu that “the silence in the MFA as to criteria for determination appears deliberate and reflects a [sic] emphasis in the MFA on iwi reaching agreement by consensus or alternative dispute resolution techniques” (at ). The Court went on to encourage the iwi involved to find their own solution, if possible (at -):
In this context there is a force in the submission made by counsel for TOKM that because the size of the assets in question are modest a prolonged debate on mana whenua/mana moana could be seen as disproportionate. Furthermore the assets are commercial assets not necessarily completely reflecting the position in 1840 and the MFA envisages an element of pragmatism in determinations and consensus reached.
The real scope for pragmatism (and leadership) lies not with the Court, but with the parties. It is clear that the Te Hiku iwi have been able to achieve a great deal in the recent past by working together in a collaborative way. This dispute over a portion of the Fisheries Settlement assets has the potential to extract a high cost in terms of financial and human resources and goodwill. I encourage the parties to keep trying to reach agreement.
In June 2014, the application by Trans-Tasman Resources Ltd for a marine consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) to undertake an iron sand mining project in an area covering in the South Taranaki Bight was declined by a Decision-Making Committee (DMC) appointed by the Environmental Protection Authority (EPA). That decision was appealed by the applicant, but that appeal – which was joined by Te Rūnanga o Ngāti Ruanui, Te Ohu and fishing interests – was ultimately abandoned by the applicant company in December 2014.
Similarly, in February 2015, an EPA DMC declined Chatham Rock Phosphate Ltd a marine consent under the EEZ Act to extract phosphate nodules from an area of the Chatham Rise. The application had been strongly opposed by fishing interests, Te Ohu and iwi. No appeal was lodged against the decision within the statutory timeframe, but the company has indicated that it is likely to reapply in the future.
The review of Te Ohu and other entities established under the MFA commenced in earnest in mid-2014, with MIOs appointing a Committee of Representatives to oversee the review and that Committee, in turn, setting Terms of Reference and appointing Wellington Barrister, Tim Castle, to undertake the review. For background and a summary of the statutory framework for the review, see Māori in the seafood sector (fisheries and aquaculture) – the year in review (2014) June Māori LR.
After holding in excess of 40 hui and meetings with iwi and individuals, and considering more than 30 written submissions, Mr Castle released a report in February 2015 in which he “concluded that there should be, and now is the right the [sic] time for, major change to the framework of entities established under the MFA”.
A review of the report suggests that the reviewer, Mr Castle, was presented with a wide range of views and recommendations from iwi and others. It is perhaps unfortunate that no opportunity was provided in the process for iwi to come together to debate those views. Mr Castle’s own analysis of submissions (at page 33) indicates that two changes to the current arrangements would have particularly strong support:
After considering the results of his consultation and a great deal of historical and contextual material, Mr Castle made a large number of recommendations. The over-arching theme of the recommendations was described (at paragraph 320) as driven by the conclusion that the time had “arrived for Iwi Maori to now exercise all the rights and responsibilities of full ownership of their Settlement assets”. Key among these were recommendations that:
On receipt of Mr Castle’s report, Te Ohu and the other fisheries settlement entities had 40 working days to issue their own plans in response to that plan. In this period, Te Ohu formed an Iwi Working Group, which held its own hui with iwi to assist them in understanding the consequences of the reviewer’s recommendations, and to make recommendations of its own.
Ultimately, at a Special General Meeting held on 4 June 2015, MIOs considered 19 resolutions. These resolutions reflected a combination of the recommendations made by Mr Castle and those proposed by the Iwi Working Group. Fourteen of these resolutions were passed unanimously, including that:
It should be noted that the last three of these resolutions were recognised as non-binding, on the basis that they did not flow out of the reviewer’s report or were outside the statutory terms of reference for that review.
Five further resolutions failed, including that:
Clearly, the meeting outcomes are not the end of the matter. The majority of the recommendations require amendments to the MFA in order to be implemented. Te Ohu is required, under s 127(3)(b) of the MFA, to request that the Minister for Primary Industries promote the necessary amendments.
At the time of writing just over 420 individuals, plus two committees, are appointed as tāngata tiaki/kaitiaki under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), with 146 appointments under the Fisheries (South Island Customary Fishing) Regulations 1999.
The network of mātaitai reserves has expanded further, with 37 in total (27 in the South Island, 10 the North Island).
The Kaikōura (Te Tai-o-Marokura) Marine Management Act 2014 passed into law in August 2014, establishing a collaborative framework for managing fisheries in the Kaikōura area. The legislation is heavily imbued with the kaitiakitanga (guardianship) ethos of Ngāi Tahu.
In addition, amendments to the Fisheries (Southland and Sub-Antarctic Areas Commercial Fishing) Regulations 1986 came into force on 9 July 2015 to give effect to a series of 31 commercial fishing closures around the Tītī (Muttonbird) Islands off Rakiura (Stewart Island). The amendments prohibit commercial fishing for pāua in all 31 areas, with 25 of those also closed for kina. One area is closed for both of those species, as well as kōura (rock lobster). Breach of those closures is punishable by a fine of up to $100,000.
The Tītī Islands closures were first proposed by Te Rūnanga o Ngāi Tahu in 2010, on behalf of the birding community. The closures are aimed at protecting that community’s ability to access abundant fisheries in areas of importance for customary (non-commercial) food gathering immediately adjacent to the islands. Effecting the closures through specific regulations, rather than utilising existing customary management tools such as mātaitai, was seen as appropriate because of the management burden that would be placed on tangata whenua in respect of the large number of small, discrete areas, and unintended effects on other commercial fishers
In Tawha v Fish & Game New Zealand  NZHC 1119, the defendant, Mr Tawha, successfully appealed against an initial sentence of 12 months’ imprisonment in respect of four charges of unlawfully taking and disturbing the spawning grounds of trout. The sentence was reduced to six months. Mr Tawha had been unsuccessful in defending the charges, in respect of which there was no real dispute as to the facts. Rather:
… The issue, broadly speaking, was a challenge to the District Court's jurisdiction on the grounds of sovereignty and Mr Tawha's claim that as tangata whenua he had the right to gather kai for his whānau. That stance, notwithstanding his conviction, was maintained by Mr Tawha until the eve of sentencing. In the pre-sentence report he maintained he was entitled to gather food for his family in this way. However, by the time of sentencing this claim had been abandoned.
On 23 June 2015, representatives of more than 20 iwi joined with the Minister for Primary Industries and four other Ministers to execute agreements in respect of iwi interests in new space (and anticipated new space) for aquaculture in the Auckland, Tasman and Marlborough regions. The agreements are underpinned by the Māori Commercial Aquaculture Claims Settlement Act 2004 (the MCACSA) and settle the interests (as defined in that Act) of iwi in those regions in respect of the three main commercial aquaculture species (green-lipped mussels, salmon and Pacific oysters) until 2035.
These regional agreements will deliver to iwi (via Te Ohu, in its capacity as trustee of the Māori Commercial Aquaculture Settlement Trust) 4ha of authorisations for oyster-farming space in the Marlborough Sounds, as well as $46M.
Because the MCACSA provides for the prospective settlement of iwi interests, regional agreements are based on a forecast of likely future expansion of aquaculture space (see (2014) June Māori LR). That has necessitated the development of a model for forecasting the scale of likely future development based on predictions of growth in demand for New Zealand aquaculture products and the productivity of water space available for expansion of farming to meet that demand.
The forecast model developed by MPI (with input from Te Ohu, iwi and industry experts) indicated that just over 50% of the growth of farming for the three current commercial species over the next 20 years was likely to occur in the regions of Auckland, Tasman and Marlborough.
These settlement agreements appear unique in that, while they are based on contemporary (post-1996) interests, they look forward and provide assets to iwi to recognise their current and future interests on a prospective basis. Because agreements are prospective, they include mechanisms to deal with changes over time, for example, in the event that actual expansion of aquaculture exceeds forecasts. Perhaps the most important of these will be the need for further recognition of iwi interests if, or rather when, new aquaculture species are commercialised in the future.
Agreements for the Northland, Hauraki Waikato-East, Canterbury, and Southland regions are also well-advanced and may be concluded before the end of 2015.
One localised, but long-running story of the quest by iwi to have their interests in aquaculture recognised and provided for is set to have another chapter written in the courts over the coming year.
Areas in Golden Bay and Tasman Bay, now designated as Interim Aquaculture Management Areas (IAMAs), were included in the Tasman District Resource Management Plan (TDRMP) as a result of prolonged Environment Court proceedings which began in the 1990s. The IAMAs, which cover a total of just over 2,109ha are subject to underlying applications for coastal permits in respect of aquaculture activities.
The IAMAs are also subject to specific settlement provisions, now contained in the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 (the Transitional Act), requiring authorisations for a representative 20% of the space they cover to be issued to Te Ohu, on behalf of iwi in the region. Before that can occur, MPI must make an “aquaculture decision” under s 38 of the Transitional Act as to whether aquaculture activities in the IAMAs would have an undue adverse effect (UAE) on fishing.
The Tasman District Council (TDC) initially requested that MPI make such a decision in January 2006. After seeking further information and consulting with fisheries stakeholders and other interested parties, MPI released its decision in December 2008. The decision contained a mixture of determinations for areas which would not have an UAE and reservations for areas which would have a UAE on the commercial scallop fishery.
That decision was challenged in the High Court by the Challenger Scallop Enhancement Company Ltd (CSEC) on behalf of commercial scallop fishers and quota owners and the aquaculture applicants in the subzones that were subject to a reservation. In the course of the hearing, MPI conceded some errors in the manner in which the decision had been made and that it would therefore have to be remade. The High Court proceedings continued, however, as parties sought direction from the Court in respect of a number of other issues relating to reconsideration of the UAE decision.
A High Court decision was issued in 2011 and appeals from it to the Court of Appeal were dismissed in April 2013 (SMW Consortium (Golden Bay) Ltd v Chief Executive of the Ministry of Fisheries  NZCA 95), with the original aquaculture decision (in respect of impacts on the commercial scallop fishery only) sent back to MPI to be remade, based on updated information and the guidance provided by the courts.
After seeking further information from interested parties in early 2014, then submissions on a consultation document in late 2014, MPI released a new aquaculture decision in June 2015. The essence of that decision was that MPI now believes that none of the IAMAs would have a UAE on the commercial scallop fishery. That new MPI aquaculture decision is now subject to a further application for judicial review by the CSEC. The proceedings are unlikely to be set down for hearing until the first half of 2016.
Laws changes in 2011 mean that, even when a UAE is determined to be likely, quota owners can be required to accept compensation at a level determined by an independent arbitrator, payable by aquaculture applicants (including iwi recipients of the 20% of settlement space). The effect of continuing proceedings is therefore to delay, but not prevent, implementation of the settlement provisions.
Changes to law and policy that will impact significantly on the seafood sector are on the cards for the year ahead.
The Minister for Primary Industries has recently provided future insight to the scope and focus of a review of the Fisheries Act 1996 which was mentioned as part of the Government’s Third Term legislative agenda. In a speech to the Seafood New Zealand conference on 19 August 2015, the Minister said:
While the fundamentals of the QMS are sound, I believe the time is right for refresh – particularly given the Fisheries Act is 19 years old…
This is a high level review and as such, it won’t be getting into the detail of things like bag limits or quotas. The current sustainability rounds and other work programmes by MPI will continue…
The review will not undermine existing rights and interests of commercial, customary and recreational fishers, Treaty settlements or core elements of the QMS.
The Minister indicated that consultation with stakeholders would begin soon and that the review could result in changes to how MPI conducts processes under the current legislation, regulatory changes or amendments to the Act.
At the same conference, the Minister reiterated the Government’s commitment to introduce a new Marine Protected Areas Bill. The Minister for the Environment, Hon Dr Nick Smith spoke about this proposal several times in late 2014. The Minister for Primary Industries indicated that consultation on the proposal would begin before the end of 2015, and would include a legal framework for establishing two recreational fishing parks (in the Hauraki Gulf and the Marlborough Sounds) which formed part of the Government’s pre-election promises.
Many iwi have expressed frustration in the past over the manner in which the creation of Marine Reserves has alienated them from their customary fisheries, while other management tools developed from a customary law basis, such as mātaitai, are not treated with equal status. Development of a Marine Protected Areas Bill will be of significant interest to all with coastal interests.
Forecast expansion in the aquaculture industry will, in many regions, require a more liberal approach to the granting of consents for new aquaculture developments and greater certainty in the ‘renewal’ of consents at the end of their term (strictly speaking, consents cannot be renewed as holders are required to apply for fresh consents).
The Government has recently indicated an intention to address these issues, through the inclusion of aquaculture as one of the topics included in the programme for development of National Policy Statements (NPS) in order to provide stronger national direction and guidance to local authorities in decision-making under the Resource Management Act 1991 (RMA). The Way Forward for National Direction released by the Minister for the Environment, Hon Dr Nick Smith on 13 August 2015 signalled the Government’s intention, in 2016, to develop a “nationally-consistent framework for the management of aquaculture space to provide greater certainty for investment in aquaculture”.
Iwi in regions where aquaculture is more active will, no doubt, be keen for involvement in the development of this NPS. Section 46A of the RMA gives the Minister some flexibility in choosing a process for developing and approving an NPS, though any process must include notification of the proposed NPS to iwi authorities and adequate time and opportunity to make submissions.
 With 83% of fish stocks of known status above or well above the level where sustainability issues might be a concern according to MPI’s Principal Advisor Fisheries Science, Dr Pamela Mace: http://www.scoop.co.nz/stories/BU1508/S00663/new-zealand-fish-stocks-performing-well.htm
 (2008) 114 Hauraki MB 34 (114 H 34).
 Te Ohu, Te Tini o Tangaroa, Annual Commentary for the the Year Ended 30 September 2014, December 2014: http://www.teohu.maori.nz/documents/publications/corporate/TOKM_AR_2014_Commentary_web.pdf
 Tim Castle, Barrister, Tāia kia Matariki (Make sure the net is closely woven): Independent review of Maori Commercial Fisheries Structures under the Maori Fisheries Act 2004, February 2015, Executive Summary, paragraph 1.
 At present, all voting shares in AFL are held by Te Ohu on behalf of iwi. Te Ohu also holds 20% of income shares in AFL.
 See http://www.teohu.maori.nz/review/documents/sgm/Review_of_Maori_Fisheries_Entities_Te_Ohu_Kaimoanas_plan.pdf and http://www.teohu.maori.nz/review/documents/sgm/AFL_Response_to_the_Independent_Review_under_the_MFA-5May2015.pdf
 The need for an alternative funding model flows from the loss of income Te Ohu will suffer as result of losing its incomes shares in AFL.
 Both Trusts were established with a maximum of three directors/trustees and quorum of the same and Te Pūtea Whakatipu Trust, in particular, has suffered significant difficulties as a result.
 Paragraph 15.
 Iwi in each region must agree on how the assets will be divided or shared between them before Te Ohu can distribute those assets to them.
 Authorisations confer an exclusive right to apply for resource consent to occupy the relevant space for the purposes of aquaculture activities: s.165A of the Resource Management Act 1991.
 Marlborough Aquaculture Ltd v Chief Executive of the Ministry of Fisheries, High Court Wellington (Clifford J), 13/6/2011, CIV-2009-485-500, CIV-2009-485-497, CIV-2009-485-506, CIV-2009-485-514, CIV-2009-485-519.
Judicial review – refusal to make binding recommendations over forest land - Haronga v Waitangi Tribunal  NZHC 1115 - Baden Vertongen
Ownership of dwelling - declined because house was properly a chattel in this case - Tainui - Arahura No 2A (2015) 30 Te Waipounamu MB 168 (30 TWP 168)
Costs - 80% of actual costs granted - Hettig v ANZ Bank - Kaiawhina Trust and Lot 1 Deposited Plan158328 (2015)104 Taitokerau MB 130 (104 TTK 130)
Status of land - change of status to general land declined - Gibbs - Akura 3C1A3 (2015) 41 Takitimu MB 235 (41 TKT 235)
Succession - no grant of administration - application dismissed - potential invalidity of will - Wellington v Wellington - Estate of Henare Haehae Wellington (2015) 104 Taitokerau MB 156 (104 TTK 156)
Alienation - Māori Trustee – shares purchased under the conversion fund returned to current owners – Māori Trustee v Ihaia - Omapere Taraire E & Rangihamama X3A (Aggregated) (2014) 88 Taitokerau MB 9 (88 TTK 9)
Alienation - alienation of shares declined - preferred class of alienees - Kingi - Te Maika A5 (2015) 104 Taitokerau MB 103 (104 TTK 103)
Trusts - removal of trustee following conviction - McGregor v Hutchison - Mangamaire B13A Trust (2015) 40 Tākitimu 19 (40 TKT 19)
Trusts – trustee to account for profits received in breach of duty – Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176)
Easements - right of way variation granted - Mason - Te Konoti B3SB (2015) 104 Taitokerau MB 249 (104 TTK 249)
Māori Reservations – Court declined to set aside Lake Horowhenua as a Māori Reservation - Taueki v McMillan - Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144)
From District Inquiries to Kaupapa Inquiries: a new horizon for the Waitangi Tribunal - Andrew Row
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015
Welfare and Māori - the year in review - Māmari Stephens
Download the Māori Law Review July 2015 (534 KB PDF).
Our 2015 seminars continue in Auckland during August where Tracey Whare, Bernadette Arapere and Paul Beverley will give seminars
Implementing the UN Declaration on the Rights of Indigenous Peoples – recent developments in international law - Tracey Whare will deliver the fourth of our 2015 seminars on 13 August 2015 at the University of Auckland Faculty of Law]]>
Welfare law continues to face almost constant amendment. To this end there have been several measures put before Parliament in the last year. The first of these of relevance to this review period was the Social Security (Fraud Measures and Debt Recovery) Amendment Act 2014. As stated in the Explanatory Note (available at http://www.legislation.govt.nz/bill/government/2013/0098/3.0/DLM5024902.html), the main aim of the measure is:
…to strengthen further the approach to relationship fraud by making spouses and partners, as well as beneficiaries, accountable for fraud. It will also ensure that the Ministry of Social Development (MSD) recovers debt more effectively, while also enabling it to exercise sensible discretion in managing recovery in individual cases.
Of particular note is the imposition of a duty upon the Chief Executive to recover debt under s 86(1), whereas prior to this the Chief Executive had a level of residual discretion to recover such debt, as affirmed in the case of Osbourne v Chief Executive of the Ministry of Social Development  1 NZLR 559.
There are now only some very limited exceptions that prohibit recovery:
In addition, rights of appeal under the Social Security Act 1961 have now been a little further restricted under the new s 12J(3). As explained in the Select Committee report, this provision means that a decision or determination relating only to matters of the temporary deferral, rate, or methods of debt recovery from another person is not considered to affect an applicant or beneficiary. Such beneficiaries are therefore no longer able to appeal under new s 12J(1) against such decisions. The Social Services Committee report is available at: http://www.parliament.nz/resource/en-nz/50DBSCH_SCR6102_1/2bb404e07fe4baa7264e23505cfc630b68ea1819.
This amendment overturns some more established case-law whereby an applicant or beneficiary used to be able to appeal under s 12J(1) to the Social Security Appeal Authority against a decision or determination that relates only to a third party’s entitlement or liability in that other person's own right, if the applicant or beneficiary is affected by that decision or determination. The effect concerned was restricted to that being economic in nature: Wharerimu v Chief Executive of Department of Work and Income  NZAR 467 (HC).
Further amendments are awaited. In addition to the forthcoming rewrite of the Social Security Act 1964, further amendments are awaiting introduction. In October 2014 the Speech from the Throne identified that welfare reform continued to be high in priority for the current National-led government.
The Government is committed to helping more people get off a benefit and into work. It will work to reduce the number of people receiving a benefit and reduce the lifetime costs of the welfare system. Legislation will be introduced to extend the Youth Service approach to 19-year-old sole parents, and to many other 18- and 19-year-old beneficiaries who need more support, or who are at risk of long-term welfare dependence. (See https://www.beehive.govt.nz/speech/speech-throne-2)
Other matters are proceeding without legislative or regulatory input, in further development of the ‘investment’ approach as implemented from 2010. In January 2014 a three year pilot scheme was announced whereby Work and Income announced successful contracts established with a number of agencies, including Australian company Advanced Personnel Management that will make between $2250 and $12,000 per employment placement for every person with a mental health condition in Auckland provided that person stays employed for a year.
Policy affecting Māori welfare outcomes has also been the subject of further development, none of which is reflected in legislation. This affirms a perception that the initiatives most relevant to Māori collectives, relating to achieving better Māori welfare outcomes, are considered matters of policy reform, not law reform. As also stated in the Speech from the Throne:
As agreed with the Maori Party, ongoing investment will be made in Whānau Ora. The Government will continue to have a focus on poverty, especially child poverty, and will coordinate cross-government activity in this area through the Ministerial Committee on Poverty.
Whānau Ora is an approach to social service provision created in response to evaluations that Māori were not served well enough in delivery of those services. The concept of family well-being is at the heart of Whānau Ora.
Controller and Auditor-General, Lyn Provost issued an evaluation of the Whānau Ora policy approach on 1 May 2015. While acknowledging the success of the policy approach for many families, Ms Provost was highly critical of the disproportionate use of Whānau Ora funding for administrative purposes:
During the first four years, total spending on Whānau Ora was $137.6 million. Delays in spending meant that some of the funds originally intended for whānau and providers did not reach them. Nearly a third of the total spending was on administration (including research and evaluation). In my view, Te Puni Kōkiri could have spent a greater proportion of funds on those people – whānau and providers – who Whānau Ora was meant to help. (Whānau Ora: the First Four Years (The Office of the Controller and Auditor General, 2015) 4-5.)
In October 2014 I examined the development of the Services Management Plan as part of the Mana Motuhake Redress in the Tūhoe-Crown settlement. (See (2014) October Māori LR).
The implementation of non-legislated social accords has continued with the release by Te Hiku Development Trust of its wellbeing report (available at http://www.tehiku.iwi.nz/uploads/7/4/6/3/7463762/e-copy_- te_hiku_wellbeing_report.pdf). This report arises out of the Social Accord, reportedly developed at least in part as a result of the Crown's historical failure to ensure iwi were able to participate in social and economic development. Te Hiku O Te Ika - Crown Social Development and Wellbeing Accord was signed on 5 February 2013 by three of the five Iwi of Te Hiku in Northland: Te Rarawa; Te Aupouri; and Ngāi Takoto and relevant Ministers on behalf of the Crown. Ngāti Kurī signed on 7 February 2014. The Accord is appended to the Deed of Settlement signed between these 4 iwi and the Crown (as available at http://nz01.terabyte.co.nz/ots/DocumentLibrary%5CTeAupouriiDocSched.pdf). Ngāti Kahu has not yet signed.
As with the Tūhoe Services Management Plan, Te Hiku O Te Ika Crown Social Development and Wellbeing Accord occupies a curious position; neither in the Deed of Settlement of historical claims (but appended to it), nor in legislation. It is in many ways a relationship document, signed between the iwi and the Crown. As stated in the Wellbeing Report:
The Social Accord provides for a regular cycle of engagement between the Iwi, Government agencies and the Ministers who will oversee the relationship including:
- An annual Taumata Rangatira hui between the Ministers who are party to the Social Accord or whose departments have portfolio agreements and Te Hiku Iwi governance members
- A twice yearly Te Kāhui Tiaki Whānau hui between the departments' Chief Executives or senior staff and Te Hiku Iwi Chief Executives or senior staff
- The establishment of Kaupapa Cluster groups, which will have ongoing engagement in relation to particular kaupapa/specific work streams and
- Regular meetings of the Secretariat, which comprises national and regional representatives from the Crown departments and Te Hiku Iwi, each providing administrative, research and analytical support to the implementation of the Accord. (Te Hiku Development Trust Te Hiku Well Being Report Te Oranga o Te Hiku (Te Hiku Development Trust, 2014) 18)
The 2014 Wellbeing Report was written after consultation with 1250 iwi members, and is described (at p 10) as intended to provide a:
‘snapshot of the rohe based on existing statistical data accessed from a number of sources. This baseline data will be used to measure progress towards improved Te Hiku well being at five-yearly intervals.
Te Hiku Make It Happen project has been described as a ‘community-led approach […] designed to enable public services to genuinely help citizens raise their aspirations and build people’s capabilities, without creating reliance on the state.’(Sheridan Waitai http://www.superu.govt.nz/news-and-events/superu-evidence-action-conference-2015http://www.superu.govt.nz/news-and-events/superu-evidence-action-conference-2015)
The role for the state has not been entirely ignored though; ‘Te Hiku has been and will continue to meet regularly with Government Departments to ensure they are meeting their obligations to remove disparities and create socio-economic equity for our iwi, hapu and whanau” (http://www.tehiku.iwi.nz/social-accord.html). However, in 2013 the then Minister of Social Development, Hon Paula Bennett had challenged Te Hiku iwi, stating:
My vision is that you do the work and I give you the resources to do that. I bring you the power of my office, and happily and humbly hand it over to you. Look beyond the now; what is the vision? The way it's always been done doesn't have to be how it's done now… (‘Te Hiku Handed a Blank Sheet of paper’ The Northland Age (Tuesday 23 July 2013) available at http://www.nzherald.co.nz/northland-age/news/article.cfm?c_id=1503402&objectid=11105469)
Of this statement, Te Runanga o Te Rarawa chairman Haami Piripi, observed that he had:
no doubt that the offer to devolve decision-making that was traditionally jealously guarded by politicians and civil servants offered enormous opportunities.
Thus, Te Hiku Make it Happen Project sits alongside other social accords and initiatives such as the Services Management Agreement of the Tūhoe Treaty settlement, also concluded in 2014. This project was developed in negotiation and is moving into its implementation phase, reportedly with the support of government agencies. The Make it Happen Project envisages Māori communities and families of the North seeking to exercise agency in the development of better welfare outcomes for Māori, although there is, as yet, a lack of detail as to how such outcomes will be achieved. This is because the Project is still in a data-gathering mode in order to inform the next steps of implementation. The Project appears to envisage a certain degree of limited autonomy, largely free of legislative control, to allow Māori collectives a degree of freedom within which to bring about better welfare outcomes for Māori.
Rather than isolated or merely ‘modern’ developments, this initiative will likely be yet another in a long line of attempts by Māori to exercise a distinctively Māori notion of welfare. How that notion is to develop in the face of or in conjunction with the existing benefit system has not yet been a matter of analysis.]]>
Judicial review - use of land in a Treaty settlement - Attorney-General v Ririnui  NZCA 160 - Leo Watson
Occupation orders – lower Court exercised its discretion improperly - Howell v Jaram  Māori Appellate Court MB 365 (2015 APPEAL 365)
Succession – nothing in Act to suggest succession must follow the male line – Keepa v Vercoe - Ruatoki B13A2A  Māori Appellate Court MB 196 (2015 APPEAL 196)
Trusts – removal of trustee – order for removal set aside – Keepa v Vercoe - Ruatoki B92  Māori Appellate Court MB 189 (2015 APPEAL 189)
Costs – lower Court erred in awarding costs solely against one former trustee – Gemmell v Gemmell - Mohaka A4 Trust  Māori Appellate Court MB 114 (2015 APPEAL 114)
Māori fisheries - criteria for coastline entitlement - Te Ohu Kaimoana Trustee Limited v Te Runanga Nui o Te Aupōuri (2015) 102 Taitokerau MB 1 (102 TTK 1)
Māori fisheries - matter bound to be referred to the Court – Te Ohu Kaimoana Trustee Limited v Te Rūnanga Nui o Te Aupouri (2014) 78 Taitokerau MB 112 (78 TTK 112)
Injunction - interim injunction granted - Davies v The Trustees of the Te Tii Waitangi B3 Ahu Whenua Trust - Lot 16 DP 61631 and Lot 18 DP 61631 (2015) 104 Taitokerau MB 139 (104 TTK 139)
Injunction - declined - dwelling on roadway not a substantial interference - Putataua Bay Holdings Limited v Pere (2015) 105 Taitokerau MB 103 (105 TTK 103)
Jurisdiction – power of Court to make orders at a judicial conference - Taunoka Trust v Trustees of the Mangaporou Trust (2015) 337 Aotea MB 131 (337 AOT 131)
Costs – special aid not a shield against a costs award - Trustees of the Horina Nepia & Te Hiwi Piahana Whānau Trust v Ngati Tukorehe Tribal Committee & Tahamata Incorporation (2014) 319 Aotea MB 238 (319 AOT 238)
Costs - unreasonable claim - reduced amount awarded - Huata-Kupa v Tataraakina C Trust - Tataraakina C Trust (2015) 40 Tākitimu MB 207
Costs - reasonable amount awarded for costs incurred - Ngamoki-Cameron - The Proprietors of Mangaroa (2015) 119 Waiariki MB 225 (119 WAR 225)
Charging orders - granted against land for unpaid rates - Kaka v Ruapehu District Council - Ohura South N2E1B (2015) 337 Aotea MB 143
Status of land - insufficient evidence to grant application to change - Wallace - Section 8B No 1 Block IV Waitara Survey District (2015) 337 Aotea MB 61 (337 AOT 61)
Trusts – trustee to account for profits received in breach of duty – Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176)
Trusts – no relief from trustees' liability to reimburse - Moeahu v Winitana - Waiwhetu Pa No 4 (2014) 319 Aotea MB 166 (319 AOT 166)
Trusts - relief from liability of trustees who acted reasonably and honestly - Deputy Registrar v Trustees of Okahukura 8M2C2C2B Trust (2015) 337 Aotea MB 101 (337 AOT 101)
Trusts - application to replace trustees declined - Milne - Te Kainga O Takenui Whānau Trust (2015) 104 Taitokerau MB 28 (104 TTK 28)
Easements and roadways - non-access easement granted - Top Energy Ltd - Whakataha Z1C (2015) 104 Taitokerau MB 108 (104 TTK 108)
From District Inquiries to Kaupapa Inquiries: a new horizon for the Waitangi Tribunal - Andrew Row
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015
Download the Māori Law Review June 2015 (572 KB PDF).]]>
Arbitration – adjudication of mana whenua dispute made subject to arbitration - Bidois v Leef  NZCA 176 - Baden Vertongen
Māori fisheries - mandated iwi organisations - no valid amendment to constitution of charitable trust - failure to hold trustee elections - Solomon-Rehe v Hokotehi Moriori Trust  NZHC 46
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015
Power of the court to grant specific performance - Kotahitanga Log Haulage Limited v Forest Distribution Limited (2015) 121 Waiariki MB 149 (121 WAR 149)
Mareva injunction issued over former trustees – Slade - Parengarenga 3G (2014) 87 Taitokerau MB 46
Chief Judge's powers:
Permanent injunction declined - Haimona v The Trustees of Te Karaka No 1A Ahu Whenua Trust - Te Karaka No 1A Ahu Whenua Trust and Rotoiti 3G1 Blocks (2015) Chief Judge's MB 228
Denying a rehearing on costs could create a possible injustice – Big Hill Station Limited v Trustees of Awarua o Hinemanu Trust – Awarua o Hinemanu Trust (2015) 39 Takitimu MB 16 (39 TKT 16)
Some costs claimed were not reasonably incurred - Pouwhare v Auld - Oparau No 1 Block and Pirongia West 12B3D (2015) 95 Waikato Maniapoto MB 167 (95 WMN 167)
Respondent allowed to claim for management time - Manuirirangi v Parininihi ki Waitotara Incorporation - Waiokura Te Kauae blocks (2014) 319 Aotea MB 247 (319 AOT 247)
Partially granted - Goffe v ANZ Bank New Zealand Limited - Whirinaki 5K 6F (2015) 99 Taitokerau MB 248 (99 TTK 248)
Status of land:
Change from Māori freehold land to general land declined - Gilbert Family Trust - Marokopa 3 Block (2015) 97 Waikato Maniapoto MB 68 (97 WMN 68)
Land deemed General land under Māori Affairs Act 1953 – Coast Law - Allotment 266A3C2 Waimana Parish Block (2014) 103 Waiariki MB 270
Termination of trust and vesting assets in another trust - Trustees of Te Ngae Farm Trust v Trustees of Ngāti Rangiteaorere Koromatua Council - Te Ngae Farm Trust (2015) 118 Waiariki MB 92 (118 WAR 92)
Review of trust and removal of advisory trustees – trustees ordered to refund payments received in breach of trust – Tupe Snr v Everton - Manunui No 1 4th Residue Ahu Whenua Trust (2015) 334 Aotea MB 227 (334 AOT 227)
Review of trust and removal of trustees - Raukawa v Lux - Te Oitahuna Raukawa Whānau Trust (2015) 116 Waiariki MB 288
Review of trust and removal of trustees - Worsnop v Lux - Honeri Raukawa Whānau Trust (2015) 117 Waiariki MB 3
Removal of trustee - Worsnop v Lux - Ruarakai-Tokomanawa Lands Trust (2015) 117 Waiariki MB 26
Removal of trustees declined – trustees were shown to have been diligent and hard working - Olsen v Vercoe - Matata Parish Lot 6A (2015) 116 Waiariki MB 63 (116 WAR 63)
Recovery of trust funds and removal of trustees - Pue v Kīngi - Te Rūnanga o Ngāti Maru (Taranaki) Whenua Tōpu Trust (2015) 355 Aotea MB 1 (355 AOT 1)
Proposal to constitute ahu whenua trust over 11 separate blocks adjourned and general guidance issued – Far North District Council - Okahu 3B2B2 (2014) 91 Taitokerau MB 284 (91 TTK 284)
Ahu whenua trusts – Registrar to maintain record of beneficial ownership of General land - Larsen - Tanumi Reti (2014) 88 Taitokerau MB 273 (88 TTK 273)
Applicant had transferred right to occupy - Tawera v Tawera – Waitangi A1A2 (2014) 39 Tairawhiti MB 45 (39 TRW 45)
Inquiry granted into administration - Powell - Tunapahore 6 (2015) 118 Waiariki MB 150
Removal of trustees - trustee encouraged to resign - Royal v Broughton - Muhunoa 3A1E1 Sub 8A (Kikopiri Marae Māori Reservation) (2014) 325 Aotea MB 250 (325 AOT 250)
Gazette Notice was not confusing or uncertain – Murray - Mahinepua B1 (2014) 87 Taitokerau MB 227 (87 TTK 227)
Whether persons were whāngai and disposition of Māori land on intestacy - Pomare - Peter Here Pomare (2015) 103 Taitokerau MB 95 (103 TTK 95)
Fresh election for committee of management - Whata - The Proprietors of Ruahine Kuharua Incorporation (2015) 120 Waiariki MB 204 (120 WAR 204)
No reasonable alternative to partition given urbanisation of owners - Opai - Kohatutaka 6A10D2C (2014) 93 Taitokerau MB 6 (93 TTK 6)
Withdrawal of an application to the Court - Dawson v Dawson - Orohaki 894B Ahu Whenua Trust (2015) 29 Te Waipounamu MB 161
Refusal to waive application fee reversed - Wilson - Oue 2B3 and other blocks (2015) 2015 Chief Judge's MB 215 (2015 CJ 215)
Application for urgent remedies hearing and urgent inquiry declined - Ahitahi/Araukuku Hapū Claim (Wai 552, #2.35)
Life or death, and traditional medicine – primacy of indigenous rights - Hamilton Health Sciences Corporation v DH 2014 ONCJ 603 - Andrew Row
Are We There Yet? The Future of the Treaty of Waitangi: A Review - Max Harris
Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand - Gareth Morgan and Susan Guthrie
Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie - Max Harris
Download the Māori Law Review May 2015 (669 KB PDF).
Criminal Justice, the State and Māori - Kim Workman, 2015 J. D. Stout Fellow, will deliver the third of our 2015 seminars on 28 May 2015 at the Faculty of Law, Victoria University of Wellington
Recent developments in co-governance and co-management - Paul Beverley will deliver the second seminar for 2015 on 21 May 2015 at the Faculty of Law, Victoria University of Wellington
Ko te manu e kai ana i te mātauranga - nōnā te ao: overseas postgraduate reflections - Horiana Irwin Easthope and Natalie Coates will deliver the first of our 2015 seminars on 7 May 2015 at the Faculty of Law, Victoria University of Wellington
The Implementation of the Declaration on the Rights of Indigenous Peoples: Implications for Aotearoa/New Zealand - Professor James Anaya, University of Arizona, will deliver this public lecture on 11 June 2015 at Old Government House, Auckland]]>
Download the exposure draft Te Ture Whenua Māori Bill (Haratua 2015) and the Government's consultation proposals about the law reform.
The Government has released an exposure draft Te Ture Whenua Māori Bill and has engaged in consultation with the public on its proposed reforms to the law relating to Māori land.
An independent panel of experts earlier recommended new Māori land legislation to replace Te Ture Whenua Māori Act 1993. The Panel considered that the Māori Land Court's current role in the management and utilisation of Māori land can be scaled back in favour of greater final decision-making by those with governance roles for Māori land. The Panel's recommendation was that decision-making about governance and use of Māori land should be by engaged owners. Safeguards should remain for disposals of Māori land. Further, duties and responsibilities of those with governance roles should be aligned with the general law.
The Government subsequently considered the Panel's views and developed more detailed proposals.
In February 2015 the Minister for Māori Development appointed an external advisory group to help to progress law reform of the governance and management of Māori land.
See (2015) March Māori LR, (2014) April Māori LR and (2013) May Māori LR for further background information about this law reform process.
The law reform proposals continue to stress the balancing of goals to use and develop Māori land safeguarding the retention of Māori land given its significance as a taonga tuku iho (precious treasure handed down). These objectives are supported by the following core policy settings:
The proposed changes will:
- Support and promote the retention and use of Māori land by its owners;
- Empower Māori land owners to pursue their aspirations for the sustainable development of their land;
- Enable Māori land owners to make decisions without needing Māori Land Court approval and encourage owner participation;
- Respect the intrinsic cultural significance of Māori land; and
- Provide an effective alternative to litigation to resolve disputes.
A programme of public consultation, including 23 consultation hui (meetings) will be held in June.
Details of these meetings are available here.
A consultation document describes the reform proposals.
Submissions in response to the consultation proposals were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.
The following information is copied from the explanatory note provided at the front of the exposure draft of the Bill:
Clause by clause analysis
Clause 1 states the title of the Bill.
Clause 2 specifies the commencement date of the Bill.
Part 1 (Preliminary provisions: clauses 3 to 11)—
- specifies the aronga/purpose and principles of the Parts that are to become Te Ture Whenua Māori Bill:
- defines and explains terms used in the Parts that are to become Te Ture Whenua Māori Bill:
- provides for tikanga Māori to be determined by evidence in proceedings.
Part 2 (Whenua Māori/Māori land and whenua tāpui: clauses 12 to 38)—
- defines Māori customary land and Māori freehold land (together, Māori land):
- prohibits the disposition of Māori customary land and restricts the disposition of Māori freehold land:
- empowers the Māori Land Court (the court) to determine whether land is Māori customary land or Māori freehold land:
- provides for how land becomes or ceases to be Māori freehold land:
- allows whenua tāpui to be reserved over private land (which includes all Māori land), Crown land, or other specified land for certain purposes and for the common use and benefit of certain beneficiaries.
Part 3 (Ownership interests in Māori freehold land: clauses 39 to 75)—
- specifies the rights of beneficial owners (owners) of Māori freehold land:
- allows the owners of Māori freehold land to convert to collective ownership:
- specifies how the owners of Māori freehold land make decisions (Schedule 2 sets out a default decision-making process for decisions requiring agreement of owners of Māori freehold land):
- provides for whānau trusts to hold owners’ beneficial interests in Māori freehold land for the benefit of certain whānau members:
- provides for the appointment of kaiwhakamarumaru to manage the property (including Māori freehold land) of persons needing protection.
Part 4 (Dispositions of Māori freehold land and other land: clauses 76 to 133)—
- restricts the disposition of a parcel of Māori freehold land by sale, exchange, or gift or by an action under another enactment:
- allows a parcel of Māori freehold land to—
- have its boundary with another parcel adjusted:
- be partitioned into new parcels:
- be amalgamated with other parcels into a new parcel:
- have its beneficial ownership aggregated with, or separated from, that of other parcels:
- restricts the grant or variation of the following lesser interests over a parcel of Māori freehold land: a lease, licence, profit à prendre, mortgage, charge, or easement:
- allows an occupation lease or licence to be granted over a parcel of Māori freehold land:
- allows a kawenata tiaki whenua to be created over a parcel of Māori freehold land to preserve and protect certain places:
- restricts the disposition of owners’ individual freehold interests in Māori freehold land to certain sales or gifts, exchanges, mortgages, or charges:
- provides for the court to make orders of confirmation for the dispositions that require them.
Part 5 (Authority to act in relation to Māori freehold land) has 3 subparts.
Subpart 1 (clauses 134 to 146) allows for the court to appoint an administrative kaiwhakarite to act on behalf of the owners of Māori freehold land for particular purposes. The purposes are set out in clauses 134(1)(a) and 135.
Subpart 2 (clauses 147 to 160) allows for the chief executive to appoint a managing kaiwhakarite to manage Māori freehold land on behalf of its owners in particular circumstances. The circumstances are set out in clause 151. Clause 153 sets out what happens to any income generated from the land by the managing kaiwhakarite.
Subpart 3 (clauses 161 to 189) allows for the owners of certain Māori freehold land to appoint a governance body to manage the land on their behalf. Clause 161(3) specifies the entities eligible to be appointed as a governance body and clause 164 sets out the appointment process. The relationship between a governance body and owners of Māori freehold land is established by a governance agreement. Schedule 3 sets out the requirements for governance agreements. Clause 163 sets out the rights of owners in respect of Māori freehold and other assets managed on their behalf by a governance body. Existing Māori incorporations, ahu whenua trusts, and whenua tōpū trusts will transition to the new regime as set out in Schedule 1.
Part 6 (Operation of governance bodies: clauses 190 to 226) covers—
- the powers, duties, and responsibilities of governance bodies and their kaitiaki (those occupying a position in the body that is comparable with that of a director of a company) (clauses 190 and 191):
- the vesting of an asset base in a governance body on registration of a governance agreement (clauses 193 to 197):
- how governance bodies can change holdings of Māori freehold land managed under a governance agreement (clauses 198 to 203):
- the application of revenues earned by a governance body (clauses 204 to 206):
- the distribution of all or part of an asset base to the owners of Māori freehold land, if the governance body will no longer manage the land on the owners’ behalf (clauses 207 to 211).
Part 7 (Administration of estates: clauses 227 to 244)—
- provides for how beneficial interests in Māori freehold land are distributed when an owner dies without a will:
- provides for how beneficial interests in Māori freehold land that are gifted by will become vested in the beneficiaries of the gift.
Part 8 (Registers, jurisdiction about land, giving notices, and other provisions: clauses 246 to 287) has miscellaneous provisions that—
- require certain documents to be provided to the chief executive or the Registrar-General of Land:
- provide for the chief executive to keep a Māori land register that records matters relating to Māori freehold land and other land, such as beneficial interests in land and information about governance bodies that manage land. Schedule 4 specifies the information that must be kept on the Māori land register:
- provide for matters relating to the register kept by the Registrar-General of Land under the Land Transfer Act 1952:
- prevent Māori freehold land from vesting in the Crown when it has no owner:
- give the court jurisdiction in certain land matters:
- generally prevent a judgment against a debtor from being enforced against Māori land:
- specify how notices are to be given:
- allow regulations to be made.
Part 9 (Dispute resolution: clauses 288 to 302)—
- assists Māori land owners and other parties to quickly and effectively resolve disputes about Māori land in a way that is consistent with the concept of mātauranga takawaenga:
- requires the chief executive to provide a dispute resolution service conducted by a kaitakawaenga:
- enables the court to refer a dispute for resolution under this Part:
- requires litigation parties to refer certain kinds of disputes (other than disputes over points of law) for resolution under this Part before the court will hear the dispute, including disputes over the ownership or possession of any Māori freehold land.
Part 10 (Repeals, revocations, and consequential amendments: clauses 303 to 305)—
- repeals and revokes certain enactments:
- amends certain enactments as a consequence of other provisions.
Part 11 (Preliminary provisions: clauses 306 and 307) contains preliminary provisions for the purposes of the Parts that are to become Te Kooti Whenua Māori Bill.
Part 12 (Māori Land Court: clauses 308 to 345)—
- continues the court in its present form and largely with its present jurisdiction:
- carries over the court’s jurisdiction under the Maori Fisheries Act 2004 and Maori Commercial Aquaculture Claims Settlement Act 2004.
Part 13 (Māori Appellate Court: clauses 346 to 363) continues the Māori Appellate Court in its present form and largely with its present jurisdiction. The Judges of the Māori Land Court for the time being are the Judges of the Māori Appellate Court.
Part 14 (Provisions applying to both courts: clauses 364 to 393) sets out provisions that apply to both courts, including provisions relating to—
- judicial conferences and directions:
- the use of te reo Māori:
- the representation of parties:
- stating cases for the High Court:
- the jurisdiction to issue injunctions:
- costs orders:
- the enforcement of judgments and orders:
- the appointment of receivers.
Part 15 (Appointment of Judges and related provisions: clauses 394 to 406) carries over provisions relating to the appointment of Judges of the court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill, including—
- a requirement to publish the process for appointments:
- restrictions on undertaking other employment or holding other offices:
- a requirement for a protocol relating to the activities of Judges.
Part 16 (Rules, regulations, judgments, restricting right to commence proceedings, etc: clauses 407 to 422) carries over provisions relating to the Rules Committee and the rules of court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill that relate to meritless litigation.
Information provided by Te Puni Kokiri sets out the proposals for consultation and the timetable. Submisssions on the proposal for consultation were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.]]>
Ontario Court of Justice, Canada 2014 ONCJ 603
14 November 2014
Hamilton Health Sciences Corporation v DH
Ontario Court of Justice, Canada 2015 ONCJ 229
24 April 2015 (endorsement)
This case involved a child protection application made by the applicant hospital. The hospital's application arose from an aboriginal mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine and the 2014 decision was amended by the Court after a further application by the parties.
Download Hamilton Health Sciences Corp v DH (2014) and Hamilton Health Sciences Corp v DH (2015).
|Life or death, and traditional medicine – primacy of Indigenous rights|
|Date||14 November 2014 and 24 April 2015|
|Case||Hamilton Health Sciences Corp v DH; Hamilton Health Sciences Corp v DH (2015 endorsement)|
|Citation||2014 ONCJ 603; 2015 ONCJ 229|
|Court||Ontario Court of Justice, Canada|
|Legislation cited||Canadian Charter of Rights and Freedoms, s 1 (Canada); Child and Family Services Act, RSO, c C 11, 1990, s 37, s 40, s 72 (Canada); Constitution Act, 1982, being Schedule B to the Canada Act 1982, s 35 (Canada); Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s 4 (Canada); United Nations Declaration on the Rights of Indigenous Peoples, Art 24.|
|Cases cited||R v Van der Peet  2 SCR 507, 1996 CanLII 216 (SCC); Children’s Aid Society of Ottawa v S(C)  OJ No 5060 (Div Ct); Children’s Aid Society of Toronto v P(L) 2010 ONCJ 320; H(T) v Children’s Aid Society of Metropolitan Society of Metropolitan Toronto  OJ No 5607 (CJ); Church v. Church, 2003 CanLII 1942 (ON SC).|
|Overview and result||The applicant hospital made a child protection application given a mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine.|
JJ, an 11 year-old girl from the Six Nations of the Grand River (an indigenous Indian band in Canada) was diagnosed with acute lymphoblastic leukemia. JJ’s initial testing indicated that she had a 90 to 95 per cent chance of being cured with chemotherapy. The specialists at the applicant hospital were not aware of any survivors of acute lymphoblastic leukemia who did not receive chemotherapy treatment. Initially, JJ undertook chemotherapy treatment, however after 12 days of treatment, JJ’s mother, DH, withdrew consent for the continuation of that treatment and proposed to pursue treatment in accordance with traditional medicine.
The applicant hospital took the position that JJ lacked the capacity to make such a life and death decision and it brought a child protection application under the relevant Canadian legislation, s 40(4) of the Child and Family Services Act (“the Act”).
The first question for the Court was whether the Court was the appropriate forum for such a dispute.
The respondent argued that JJ was not a child in need of protection, but rather a child in need of a diagnosis. As such, the case should be heard before the Consent and Capacity Board. Additionally, the respondent argued that JJ’s capacity was never properly assessed, nor was the specialist’s finding of incapacity ever properly articulated to JJ or DH.
The applicant hospital said that it had determined that JJ was not capable of making an informed decision. Further, as DH was JJ’s substitute decision-maker, by deciding to discontinue JJ’s chemotherapy, that decision placed JJ at medical risk and thus JJ was a child in need of a protection.
Justice Edward accepted that the specialists were correct in concluding JJ lacked capacity to make such a life and death decision as to discontinuation of chemotherapy. This was because the specialists said that JJ lacked the ability to understand her diagnosis, its therapy, and the consequences of stopping chemotherapy. Based on Canadian precedent, the Court held that the Court, rather than the Consent and Capacity Board, was the appropriate forum.
In applying s 40(4) of the Act, the Court stated that the real issue was whether there were reasonable and probable grounds to believe that JJ was a child in need of protection. The Court noted that the only applicable part of the s 37(2) definition section of “child in need of protection” was s 37(2)(e) which states that:
the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.
The applicant hospital held that JJ was a child in need of protection in light of this definition.
The evidence was that DH, when discontinuing her daughter’s chemotherapy treatment, expressed her strong faith in her native culture and believed that pursuing traditional medicine would help to heal JJ. Additionally, the family comprised committed traditional longhouse believers who integrated their culture in their day-to-day living. As Edward J summarised: “their longhouse adherence is who they are and their belief that traditional medicines work is an integral part of their life”, not just an “11th-hour epiphany employed to take her daughter out of the rigors of chemotherapy”.
Justice Edward said, to assess the claim, the Court needed to consider the application of s 35(1) of the Constitution Act 1982 that states, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
Therefore, Edward J was required to assess whether DH’s decision to pursue traditional medicine, as JJ’s substitute decision-maker, was in fact an aboriginal right to be recognised and affirmed.
Before answering this question, Edward J affirmed the following statement of Lamer J in the Supreme Court case of R v Van der Peet, 2 SCR 507 at :
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
Justice Edward held, based on R v Van der Peet, that what was required is a practice, custom or tradition that is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practice, customs and traditions of pre-contact times. His Honour held that in this case, the use of traditional medicines by Six Nations peoples was practiced prior to European contact and that it continues to form an integral part of who the Six Nations are today. As a result, Edward J held that it was an aboriginal right.
In a powerful conclusion, Edward J confirmed:
 ... [DH]’s decision to pursue traditional medicine for her daughter [JJ] is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.
As Edward J recognised in Hamilton Health Sciences Corporation v DH, the case involved the difference between life and death. However, in the end deference was given to the mother’s aboriginal right to use traditional medicine in the treatment of her daughter’s cancer. Importantly, Edward J recognised that it was inappropriate in moulding the scope of recognition of an aboriginal right, or upholding its application, to base that on a “Western medical paradigm”.
There has been a massive amount of media and legal interest in this case; while some purport it is a triumph of indigenous rights, others have claimed it was wrongly decided in light of binding precedent. While I do not purport to be an expert on Canadian constitutional law, some brief comments are made here before I go on to outline the 2015 addendum that Edward J issued to augment his 2014 judgment.
Some academics have criticised that the case ignored the Supreme Court of Canada case of B(R) v Children’s Aid Society of Metropolitan Toronto  1 SCR 315. That case involved an infant who required a life-saving blood transfusion; however, the Jehovah’s Witness parents refused such treatment. The Supreme Court of Canada held that relevant provisions of the Child Welfare Act 1980 (now the Child and Family Services Act) imposed a reasonable limit on parents’ religious beliefs and parents’ right to raise their child in accordance with those beliefs under the Canadian Charter of Rights and Freedoms (“Canadian Charter”).
Justice Edward was right to state that s 35 of the Constitution Act is not subject to s 1 of the Canadian Charter, which is the Charter’s “reasonable limits clause”. While s 35 is outside of that framework, this does not mean that the aboriginal rights affirmed and recognised by s 35 are absolute.
The Canadian Supreme Court in R v Sparrow recognised a two-step “justificatory scheme” whereby the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s 35(1).
The first question is whether the legislation in question has the effect of interfering with an existing aboriginal right. This first question involves asking whether the “limitation is unreasonable”, whether it imposes “undue hardship” and whether it denies “the holders of the right their preferred means of exercising that right”.
If a prima facie infringement is found, the second step requires the government to prove justification for any limitations. The inquiry involves considerations such as: whether there is a valid legislative objective; that the legislative objective is implemented consistently with the honour of the Crown in dealing with aboriginal peoples; whether there is minimal impairment of the aboriginal right; and whether there has been consultation with aboriginal people.
As to the first step of finding whether there is a prima facie breach one may argue that the limitation imposed by the Child and Family Services Act is not unreasonable; instead, it promotes a fundamental objective of promoting the welfare and best interests of the child. This objective is not only a cornerstone of many jurisdictions' child welfare laws, but is also an objective affirmed as fundamentally important by art 3(1) of the United Nations Convention on the Rights of the Child. Thus, it could be argued that there was no prima facie infringement of the right.
As to the second step, even if there was a prima facie infringement, it might be argued that such an infringement is justifiable. Another commentator, Joshua Shaw, has provided an analysis of whether it is justifiable. Shaw argues that the infringement could be justified for various reasons: first, the Act has a valid legislative objective of promoting the wellbeing and biological integrity of children; secondly, the Act is not implemented in a manner that arbitrarily takes children from their homes, thus violating the honour of the Crown and the Crown’s fiduciary relationship to the aboriginal people; thirdly, it is minimally impairing, since aboriginal heritage would play a significant component later in the best interests test.
One criticism of Shaw’s analysis is that it places so much weight on the Western medical paradigm in the justificatory analysis of any justified limitation of the aboriginal right to use traditional medicine that, in effect, it places the Western paradigm in a privileged and, ultimately, superior space. A question remains whether a medical technique being proven to work according to the Western medical paradigm is the right standard for limiting a child’s aboriginal right to use traditional medicine. One of the dangers is that a child’s aboriginal right to practice traditional medicine is only exercisable insofar as it fits the Western medical paradigm – this significantly curtails the right.
Regardless of the outcome of the justificatory scheme introduced by the Supreme Court of Canada in R v Sparrow, it is concerning that Edward J made no mention of this case. It is therefore arguable that the case was decided per incuriam (through lack of care). Instead of claiming that DH’s aboriginal right was absolute as it was not subject to s 1 of the Canadian Charter, Edward J was required to undertake a more careful and nuanced analysis under the test created in R v Sparrow. While Edward J can be commended for championing aboriginal rights, he did so in such a way that was contrary to binding authority.
Application to New Zealand
Section 20 of the New Zealand Bill of Rights Act 1990 affirms the rights of minority groups to practice their culture and to profess and practice their religion. However, s 4(1)(b) of the Care of Children Act 2004 (COCA) makes the “welfare and best interests” of the child the paramount consideration when making all orders under the Act.
Section 31 of the COCA allows for an eligible person to apply to the court for an order placing a child under the guardianship of the court or appointing any named person to be the agent of the court, either generally or for any particular purpose.
In light of the New Zealand statutory context, and as illuminated in cases dealing with medical procedures and children of Jehovah’s Witnesses, it is the author’s view that the result reached in Hamilton Health Sciences Corporation v DH may not be possible in New Zealand.
The case of Auckland District Health Board v Z (2007) 25 FRNZ 596 (HC) involved Jehovah’s Witness parents and their ill daughter. While Baragwanath J recognised a parent’s power as to decision-making in relation to a child’s medical treatment, his Honour noted that the COCA “emphasises that the welfare and best interests of the child are the sole focus of the consideration by the Court which may override parental rights” (at ). Additionally, as recognised in another case involving Jehovah’s Witnesses, Auckland District Health Board v E  NZHC 2154, although parents have a right under s 15 of the New Zealand Bill of Rights to manifest their religion, under s 4 of the COCA, that right does not allow acts or omissions likely to place the child’s life, health or welfare at risk (at ).
If Māori parents refused consent for their child to undergo chemotherapy (in circumstances similar to JJ’s) in favour of more traditional medicine (rongoā Māori), a New Zealand court may override their wishes. A court may conclude that while Māori guardians have a right under s 20 of the New Zealand Bill of Rights Act to practice their culture and use rongoā Māori, that right does not extend to permitting acts or omissions likely to place a child’s life, health or welfare at risk. Again, such an analysis risks placing the Western conception of “life, health or welfare” in a superior position to Māori conceptions of hauora (wellness).
On 24 April 2015, Justice Edward took the rare step of releasing an addendum to his decision in Hamilton Health Sciences Corp v DH (labelled an “endorsement”). The judge agreed to an application by parties to the case to add two paragraphs to his earlier judgment to clarify its meaning.
In his addendum decision Edward J made a number of points, including: first, the recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount; secondly any aboriginal right to use traditional medicine must be respected in any analysis of the best interests of the child; thirdly, the concept of the best interests of the child being paramount is consistent with the recognition of an aboriginal right to use traditional medicine; and fourthly, recognizing aboriginal rights correctly considers the principle of reconciliation between Indigenous and non-Indigenous Canadians.
In terms of JJ, after the original judgment the Government of Ontario became involved. Further, JJ’s health team was expanded to include a senior paediatric oncologist and a traditional Haudenosaunee Chief who is also a practitioner of traditional medicine. In March 2015, after a period of remission, JJ’s cancer returned and her family decided to continue using traditional medicine and to resume chemotherapy.
The Court’s April 2015 endorsement decision concludes with the following (at ):
The joint submission, that has been read into the record, notes how the province and the family collaboratively worked to form a health care team to bring the best both had to offer to address J.J.’s ongoing treatment. This approach recognizes the province’s acceptance of the family’s right to practice traditional medicine and the family’s acceptance western medicine will most certainly help their daughter. It is simply a recognition of what is in J.J.’s best interest. Such an approach bodes well for the future. It is also an approach that is reflected in Article 24 of the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, which states in part:
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices . . . Indigenous individuals also have the right to access, without any discrimination, to all social and health services.