Ruka - Taheke 23A
Māori Land Court [2012] Chief Judge's MB 416
6 September 2012
Application seeking amendment of a partition order dismissed. The applicant wished to relitigate issues already considered by the Māori Land Court and the Māori Appellate Court. The Chief Judge's powers cannot be used to circumvent the proper rehearing or appeals process.
Download Ruka - Taheke 23A here (192KB PDF). read more
Welsh - Taiharuru 4C3
Māori Land Court [2012] Chief Judge's MB 398 (2012 CJ 398)
20 September 2012
Successful application to cancel orders trasferring shares from the applicant's father, Milton Welsh, to his nephew, Revel Neal. Court had used outdated valuations of the shares and had not required the alienor to be present or to provide an affidavit confirming the transfer.
Download Welsh - Taiharuru 4C3 here (186 KB PDF). read more
Te Paa - Ahipara A33
Māori Land Court (2012) 47 Taitokerau MB 3 (47 TTK 3)
28 August 2012
Applications to review the trust over Ahipara A33 and for an occupation order. Issues arose surrounding the grant of a lease to two trustees. The trust order was varied in a number of ways to prevent the trustees from entering into a similar lease in the future and the existing lease declared of no effect. On balance, the Court found there were no grounds to remove any of the trustees. The application for an occupation order was dismissed as the applicant did not have the consent of the trustees.
Download Te Paa - Ahipara A33 (112 KB PDF) here.
The Interim Report on the National Freshwater and Geothermal Resources Claim
Waitangi Tribunal (Wai 2358, 2012)
Do Māori have commercial proprietary interests in water protected by the Treaty of Waitangi?
If yes, will the sale of up to 49 per cent of shares in State-owned power-generating companies affect the Crown’s ability to recognise those rights and remedy their breach?
These questions have been before the Waitangi Tribunal these past few months. On 24 August 2012, the Tribunal found that Māori still have residual proprietary rights in water and the Crown will breach the principles of the Treaty of Waitangi if it goes ahead with the intended share sale.
Download the Stage 1 Report on the National Freshwater and Geothermal Resources Claim here (4.8 MB PDF). read more
2012 has seen legislation to settle historical claims under the Treaty of Waitangi enacted at a faster pace than previously. This is due in part to two important changes to legislative practice: extended sitting hours and the use of cognate bills. read more
In early 2013, LexisNexis will publish a new Māori language dictionary. Māori language dictionaries are nothing new, however this dictionary will be the first comprehensive bilingual dictionary conveying Western legal concepts in Māori. read more
Tom Bennion on the Māori Law Review - re-launching the waka
Transferring Māori freehold land by will to persons “related by blood” - Kameta v Nicholas [2012] NZCA 350
Trusts - amalgamation - Re Tuhoe Charitable Trust Board, Tuhoe Fisheries Charitable Trust Board and Tuhoe-Waikaremoana Māori Trust Board [2012] NZHC 1952
Partition - insufficient evidence to assess whether requirements met - Wilson - Waiwakaiho H2B (2012) 288 Aotea MB 63
Resignation of trustees and appointment of independent trustee - Rātima v Sullivan - Tataraakina C Trust (2012) 18 Takitimu MB 75
Māori claims to rights over water – Waitangi Tribunal recommends halt to partial privatisation of State-owned power companies (Wai 2358, 24 August 2012)
Settlement negotiations measured against the Treaty of Waitangi - The Port Nicholson Block Urgency Report (Wai 2235, 2012)
Māori claims to rights over water - Tribunal will endeavour to produce an interim report on water and geothermal issues by 24 August 2012 (Wai 2538, #2.7.3)
Immunity from Seizure for Cultural Objects on Loan - Discussion Paper
Download the Māori Law Review August 2012 (512 KB PDF).
Tēnā koutou kātoa. Ka nui te mihi ki ngā roia ki a koutou hoki e mahi ana i te ao ture.
The first issue of the Māori Law Review was posted from my home office in Brooklyn in December 1993. At the time, the internet was in its infancy and there was no regular reporting of Māori Land and Appellate Court judgments, nor of Waitangi Tribunal reports.
The Review was intended as a regular updating service following on from then Chief Judge, now Sir Edward Taihakurei Durie's earlier work in the Tai Whati series of casenotes. But the Review had an additional and broader aim, to chart the ways in which law in Aotearoa New Zealand is distinctive because of its Māori component. This was an attempt to record the development of our bicultural legal system if you like.
That first issue attracted 50 subscribers and it has grown from there.
In the early years it was sometimes a struggle to find enough items to fill a month.
The Review has moved with the times. It was on occasion even ahead of them. I have an old newspaper item announcing that the Māori Law Review was the first legal publication in New Zealand to be put on the internet.
But as anyone who runs a regular publication will know, it can be a grinding task. Running a busy law practice and the arrival of three children has meant slippage in recent years.
I was therefore grateful for the interest shown in revitalising the Review by Craig Linkhorn and Paul Meredith and Carwyn Jones from Victoria University of Wellington. They have assembled a team of contributors and editors to spread the load. My role thankfully drops back to part time contributor and consultant editor. As you will have seen already, they have done an excellent job in updating the website and getting the Review back on track. We are working together to get the remaining back issues completed and posted.
The Review is the regular reporter of judgments of the Māori Land and Appellate Courts and Waitangi Tribunal reports. In addition there is a range of decisions from other courts and tribunals as well as legislation all affecting Māori. The job of the Review remains as important as ever.
However, since the earlier days of the internet, there is now a big change in the availability of decisions of courts and tribunal. This allows the Review to become a valuable annotator of decisions and its expert contributors guides to their overall relevance.
The Review’s new website is a great asset. The instant access to and updating of legal and other information on the internet is changing law in profound ways, some which we have yet to comprehend. It was with interest that I noted that Supreme Court Justice William Young in his recent judgment in Paki v Attorney-General [2012] NZSC 50 used the online database of historic newspapers to reach conclusions about the intent of a 1903 Act.
I hope for the future that the Review will be looked on as a valuable recorder of changing law in a very important period of its development. I think that the revived Review is an essential online tool for practitioners in this area, but also policy makers, academics and the many organisations, Māori and Pākehā who have to grapple with the bicultural aspects of our legal system.
Kameta v Nicholas
Court of Appeal [2012] NZCA 350
3 August 2012
A will maker can dispose of a beneficial interest in Māori freehold land to specified classes of people only. One is persons who are both related by blood to the testator and a member of the hapū associated with the land (s 108(2) Te Ture Whenua Māori Act 1993). The Court of Appeal held that although it is a question of degree, a whakapapa connection within the hapū associated with the land satisfies the statutory requirement to be “related by blood” to a will maker.
The Māori Appellate Court’s collective knowledge of tikanga and specialist expertise means it enjoys a particular advantage in determining questions of fact that the Court of Appeal will respect.
Download Kameta v Nicholas [2012] NZCA 350 here (217 KB PDF). read more
Wilson - Waiwakaiho H2B
Māori Land Court (2012) 288 Aotea MB 63 (28 AOT 63)
3 August 2012
Application for partition order. Application dismissed where there was insufficient evidence for the Court to determine whether the applicant had satisfied the requirements necessary for an order to be made.
Download Wilson - Waiwakaiho H2B (186 KB PDF) here. read more
Rātima v Sullivan - Tataraakina C Trust
Māori Land Court (2012) 15 Takitimu MB 57 (15 TKT 15) and 18 Takitimu MB 75 (18 TKT 75)
13 April 2012 (interim injunction) and 19 July 2012 (interim judgment)
In April 2012 the Court issued an interim injunction restraining the trustees of Tataraakina C Trust from taking any further steps in relation to the appointment of an Executive Officer or Project Manager and Office Manager until further orders of the Court.
Following further hearings a number of consent orders were made and the interim injunction continued. These orders included the trustees resigning and being appointed advisory trustees to a newly appointed independent responsible trustee.
Download Rātima v Sullivan - Tataraakina C Trust (2012) 18 Takitimu MB 75 (162 KB PDF) here. read more
Immunity from Seizure for Cultural Objects on Loan - Discussion Paper
Ministry for Culture and Heritage (2012)
The Ministry for Culture and Heritage has published a discussion paper inviting submissions on whether New Zealand should introduce legislation to provide immunity from seizure for cultural objects on loan. Such legislation could have significant implications for Māori and also brings into play a number of issues relating to cultural artifacts and the repatriation of taonga that were addressed by the Waitangi Tribunal in its 2011 report Ko Aotearoa Tēnei (A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity).
The Ministry has invited submissions on the issues raised in the discussion paper by Monday 24 September 2012.
Download the discussion paper here (206 KB PDF). read more
The Interim Report on the National Freshwater and Geothermal Resources Claim
Waitangi Tribunal (Wai 2358, 24 August 2012)
The Waitangi Tribunal has found that Māori have residual proprietary rights in bodies of water. In an interim report, the Tribunal found that the Crown will be in breach of Treaty principles if it proceeds with the sale of shares in State-owned power generating companies (the Mixed Ownership Model companies) without first creating a mechanism to preserve its ability to recognize Māori rights. The Tribunal recommended that the Crown urgently convene a national hui to determine a way forward and that the sale of shares in the Mixed Ownership Model companies be delayed while the Treaty partners negotiate a solution.
Download The Interim Report on the National Freshwater and Geothermal Resources Claim here (4.81 MB PDF). read more
Re Tuhoe Charitable Trust Board, Tuhoe Fisheries Charitable Trust Board and Tuhoe-Waikaremoana Māori Trust Board
High Court [2012] NZHC 1952
14 August 2012
Interim judgment on applications to vary the purposes and modes of administration of three trusts administered by the Tuhoe Charitable Trust Board, the Tuhoe Fisheries Charitable Trust Board, and the Tuhoe-Waikaremoana Māori Trust Board.
Download Re Tuhoe Charitable Trust Board, Tuhoe Fisheries Charitable Trust Board and Tuhoe-Waikaremoana Māori Trust Board (203 KB PDF). read more
The Port Nicholson Block Urgency Report
Waitangi Tribunal (Wai 2235, 2012)
The Waitangi Tribunal’s Port Nicholson Block Urgency Report is the outcome of an urgent Waitangi Tribunal hearing in June 2012 into the claim that the Crown had breached undertakings made during settlement negotiations with Taranaki Whānui interests about the scope of redress that would be offered to other groups.
The claim was partly upheld and partly not upheld. The Tribunal did not uphold the claim by Taranaki Whānui that they agreed to forego one commercial property on the Crown’s express undertaking that no other property would be offered to Ngāti Toa anywhere in the entire Port Nicholson Block at Wellington. However, the Tribunal did find that the Crown had given Taranaki Whānui an undertaking that, in exchange for agreeing to the release of that property, no other property would be offered to Ngāti Toa in the Wellington central business district. The Tribunal found the Crown broke that undertaking and in doing so breached Treaty principles.
This report contains a number of observations that could have significant implications for future settlements. The Tribunal determined that it was entitled to examine pre-settlement negotiations and subsequent actions and omissions of the Crown, despite the existence of an “entire agreement” clause in the deed of settlement, a standard provision in Treaty settlements. This determination was based on the Tribunal’s reasoning that neither the Crown nor settling groups can contract out of their Treaty obligations.
Download The Port Nicholson Block Urgency Report here (1.2 MB PDF). read more
National Fresh Water and Geothermal Resource Inquiry
Memorandum-Directions responding to Crown request for report by 24 August 2012
Waitangi Tribunal (Wai 2358, #2.7.3)
Responding to a Crown request for an early report, the Waitangi Tribunal has indicated that it will endeavour to produce an interim report by 24 August 2012 on stage 1 of its National Fresh Water and Geothermal Resource Inquiry. The Tribunal’s response was critical of the way the Crown raised this issue.
Download Wai 2358, #2.7.3 here (370 KB PDF). read more
Rivers as navigable public highways - Paki v Attorney-General Supreme Court [2012] NZSC 50
Appointment of trustees – voting procedure and participation levels - Rihia v Te Rūnanganui o Ngāti Hikairo
Discharge of interim injunction to prevent eviction from Māori land; no serious question – Kerr v Stewart
Announcing court sittings in te reo Māori and English
Māori claims to rights over water – Tribunal issues interim direction urging halt to partial privatisation of State-owned power companies
Download Māori Law Review July 2012 (540 KB PDF)
Student essay competition - undergraduate law students of Victoria University of Wellington are invited to submit an essay on the most significant legal development affecting Māori in 2011. The winner will receive a $100 book token and will have their essay published in the Māori Law Review.
Memorandum-directions of the Tribunal in the National Fresh Water and Geothermal Resources Inquiry
Waitangi Tribunal (Wai 2358, #2.7.2, 30 July 2012)
The Waitangi Tribunal has issued an interim direction. The interim direction urges the Crown to halt its planned programme to partially privatise a number of State-owned power companies until the Tribunal’s report on the first stage of its urgent inquiry into Māori claims to freshwater and geothermal resources is released in September 2012 and any recommendations in that report have been considered by Government.
In setting out its view on whether the Crown should proceed with or pause the asset sales programme, the Tribunal has made a number of observations about its role in monitoring the Crown-Māori relationship.
The Māori Law Review will report on the Tribunal’s substantive reports on claims to water and geothermal resources once these are released.
Download Wai 2358, #2.7.2 here (1 MB PDF). read more
Paki v Attorney-General
Supreme Court [2012] NZSC 50
27 June 2012
What is a navigable river? The Supreme Court has given judgment on this preliminary issue in Paki v Attorney-General. The Court's judgments examine the purpose and effect of the 1903 Parliamentary declaration that the beds of navigable rivers were vested in the Crown. The factual context was a 32 km stretch of the Waikato River previously owned by the Pouakani people. By a majority, the Supreme Court decided this stretch of river was not navigable within the meaning of the Coal-mines Act Amendment Act 1903 and later Acts.
Download Paki v Attorney-General [2012] NZSC 50 here (602 KB PDF).
Rihia v Te Rūnanganui o Ngāti Hikairo
Māori Land Court (2012) 287 Aotea MB 44 (287 AOT 44)
19 July 2012
The Court appointed seven replacement trustees to the Lake Rotoaira Trust after an election process. The Court was satisfied the nominated trustees had the appropriate levels of ability, experience and knowledge and were broadly acceptable to the beneficiaries. Two objections to the process used to run the election were not upheld. The grounds of objection included that a meeting of owners should have been held and that there should be hapū representatives. The Court ruled the ahu whenua trust order did not require hapū representatives and that a postal ballot was permitted. The Court made observations about options available to the owners to reinstitute election of hapū representatives and directed a meeting of owners occur within 4 months.
Download Rihia v Te Runanganui o Ngati Hikairo here (208 KB PDF). read more
Kerr v Stewart – Maketu A102
Māori Land Court (2012) 58 Waiariki MB 3 (58 WAR 3)
20 July 2012
The Court dismissed an interim injunction it had ordered in June 2012 on the basis that, after hearing further argument, the applicant did not have a tenable case. No serious question arose about his rights to occupy the land administered by trustees for an ahu whenua trust.
Download Kerr v Stewart – Maketu A102 here (168 KB PDF). read more
District, Youth and Family Courts
From 23 July 2012, announcements will be made in both te reo Māori and English for the opening, adjournment and closing of court sittings in the District, Youth and Family Courts.
Download a guide to the phrases that will be used here (254 KB PDF).
Application of tikanga Māori (Māori customary law) to criminal trial and sentencing processes R v Mason [2012] NZHC 1361
High threshold to succeed on appeal against costs awards Nikau v Te Rongomau (2012) 2012 Māori Appellate Court MB 300
Ownership of dwelling – rights of non-owners to fixtures on Māori land - Stock v Morris - Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121)
Interim injunction to prevent eviction from Māori land Kerr v Albert (2012) 55 Waiariki MB 146
Injunction – trustee wrongfully in receipt of rental proceeds – Māori Trustee v Te Pou - Waiohau a Section 4B (2012) 55 Waiariki MB 124
Trustee elections, postal ballots and statutory declarations of entitlement Trustees of Lake Horowhenua Trust (2012) 285 Aotea MB 135
Partition - not reasonably necessary - Whaanga - Anewa (2012) 22 Tairawhiti MB 167
Māori reservation – application for inquiry into administration misconceived – Webster - Komakorau Parish of 146B1A (Hukanui Marae) (2012) 42 Waikato Maniapoto MB 83
No urgent inquiry into impact of Te Rarawa settlement on Hokianga Wai 2344, #2.5.12 19 June 2012
Remedies recommendations and principles for relief in the Waitangi Tribunal Wai 45, #2.411 25 June 2012
Review of Te Ture Whenua Māori Act 1993 An expert panel has been appointed to review Te Ture Whenua Māori Act 1993 - The Māori Land Act 1993 and report by December 2012
Student essay competition - undergraduate law students of Victoria University of Wellington are invited to submit an essay on the most significant legal development affecting Māori in 2011. The winner will receive a $100 book token and will have their essay published in the Māori Law Review.
Download Māori Law Review June 2012 (569 KB PDF)
R v Mason
High Court [2012] NZHC 1361
15 June 2012
Mr Mason was facing trial on one count of murder and one count of attempted murder. He applied to be dealt with in accordance with tikanga Māori (Māori customary law). The High Court refused. Subsequent to this ruling Mr Mason entered guilty pleas to the charges and was remanded for sentence.
The Court’s reasons have now been issued. These contain discussion of how tikanga Māori fits with statute-based criminal law in Aotearoa/New Zealand.
Download R v Mason [2012] NZHC 1361 here (203 KB PDF). read more
Nikau v Te Rongomau - Whangape Parish Lot 23B (Horahora Marae) (2012) 2012 Māori Appellate Court MB 300 (2012 APPEAL 300)
Māori Appellate Court 1 June 2012
The Māori Appellate Court dismissed an appeal against a costs award. No grounds were made out to disturb the lower court's award of 70% of the actual costs of the successful party. The Court observed that it would be helpful in considering costs to know what scale costs in the High Court would be for equivalent proceedings. The Court also observed that a good case can be made for ordering security against costs on costs appeals.
Download Nikau v Te Rongomau - Whangape Parish Lot 23B (Horahora Marae) (2012) 2012 Māori Appellate Court MB 300 here. (132kb PDF) read more