Māori Law Review

MÄORI LAND COURT AND APPELLATE COURT

In Re Rangitane o Tamaki Nui-a-Rua Inc Society

11 Takitimu ACMB 96, 9 February 1996.  Deputy CJ Smith, Carter J, Savage J

This was an appeal from an order under s30(3)/1993 appointing representatives of the häpu, iwi or general Mäori of the Tararua District for the purposes of consultation with the Tararua District Council (the lower court decisions are noted in Mäori LR Nov 1994 p2 & Jul 1995 p2). The council had made the application because of disputes between Rangitane and Kahungunu groups.

The original application asked that the Chief Judge request the land court to determine “tangata whenua” for the district and also in terms of the Resource Management Act 1991 and the Local Government Act 1974. The Chief Judge thought it appropriate for the court to consider who were “tangata whenua” only to the extent strictly necessary for the application. Any wider consideration might intrude on the functions of the Planning Tribunal, and by defining tangata whenua for a discrete area, the court might fail to take account of possible overlaps with other tribal groups. Accordingly, he asked the land court simply to determine appropriate representatives for the Tararua District for the purposes of consultation.

After a hearing and interim decision, the land court had made an order appointing 3 persons nominated by Ngäti Kahungunu as representatives, the Rangitane group being unwilling to make nominations. They were nevertheless given 6 months to reconsider their position. The appellants argued that the lower court had made mistakes of fact, had wrongly interpreted evidence, and had come up with a joint committee structure which had not worked in the past.

Held: the appeal should be dismissed. The appellants had concentrated on showing that they were tangata whenua of the district and the lower court had rightly taken this evidence into account. It would  be hard to envisage any representation not including some persons from among tangata whenua. But the lower court made no finding as to tangata whenua of the district, but regarded both Rangitane and Kahungunu as entitled to representation, as members of both iwi were undoubtedly resident throughout the district.

The comments alleged to be mistaken were obiter and not significant to the final decision. Both tribes had been found to be present in the district and who had primacy had little bearing on the final decision. The court had appropriately focused on representation issues and not tangata whenua status, as directed by the Chief Judge.

The Resource Management Act 1991 s2 (definition of “tangata whenua”) refers particularly to those holding manawhenua over land. It is difficult to see how an iwi can claim manawhenua over land when the owners of that land do not recognise that iwi and claim allegiance to a related iwi. Recognition of iwi by owners of Mäori land in a district is an important ingredient in establishing tangata whenua status. If the owners of Mäori land, regardless of its origins, change their allegiance to another iwi with historical and customary links to the area, that is part of the process of change and evolution which the court is entitled to take into account when determining questions of representation.

The finding that both iwi were present in the Tararua District provided adequate grounds for the court to have appointed the two incorporated authorities of Rangitane and Kahungunu as appropriate representatives. However incorporated societies may change their management through AGMs and other procedures. Appointing individuals as representatives imposes a more transparent accountability. It would be expected that matters affecting solely Rangitane interests would be referred by the joint committee to the Rangitane authoritative body and vice versa. Where matters affected all Mäori in the district a joint approach would be taken. If Rangitane continued to decline to appoint representatives it would not be serving the interests of Rangitane.

However, the final order of the lower court was outside its jurisdiction in as far as it purported to review the situation with Rangitane in 6 months, and review all appointments after 3 years. There is no provision in Te Ture Whenua Mäori Act 1993 giving the court power to amend or review final orders, unless a fresh application is filed (the special situation of trusts and similar “continuing jurisdiction” situations excepted). Also, the court sitting specially convened to hear a reference from the Chief Judge is functus officio once its final orders are made. Section 73 (conditional orders) could not be used as there needs to be a condition to fulfil. In this case an amendment or variation was contemplated. Problems would also arise if one of the appointees died or resigned. Hopefully common sense would prevail and all parties would accept a replacement and a further application would not be required. There was however no problem in the lower court limiting the duration of the order. A fresh application could be made after 3 years, but hopefully differences would have reduced so that this would not be required. Accordingly, the lower court would be directed to allow Rangitane until 30 April 1996 to suggest nominees, then make a final order for a term of 3 years appointing the 3 persons already nominated and any Rangitane representatives subsequently nominated.

WAITANGI TRIBUNAL

Crown protection mechanisms in place for the sale of surplus Crown land

Wai 518, 24 January 1996. Deputy CJ Smith (Deputy Chairperson)

The tribunal announced that the “urgency which existed at the time of the original conference is no longer present due to the substitution of alternative Crown protection mechanisms for the sale of Crown land,” and the proposed hearing into the adequacy of the former protection mechanisms is abandoned. Claimants had requested that the tribunal continue with a judicial conference to discuss urgency, arguing the Crown proposals had not met their concerns (the revised Crown mechanisms are noted in Mäori LR Nov 1995 p7).

Wellington Tenths Claim

Wai 145, 22 February 1996. GS Orr (Presiding Officer)

The tribunal sitting to hear the Wellington Tenths claim granted urgency to an application for it to order that the Crown resume former state-owned enterprise land adjoining the Pipitea marae, on which the tribunal was sitting to hear the claim and on which it is proposed to erect a 3 story building which will physically overshadow the marae. The tribunal concluded that “irreparable damage” would be done to the marae should the building proceed and therefore the application for urgency should be granted. No doubt the parties would find a solution by discussion, but given that building might begin at any time, the tribunal thought the better course was for it to proceed. The tribunal said this should not impede efforts to find a solution by negotiation.

OTHER JURISDICTIONS

Hauraki Mäori Trust Board v The Treaty of Waitangi Fisheries Commission & Others

CP 562/94, HC Auckland,  12 February 1996. Anderson J

The fisheries commission had been leasing individual transferable quota (ITQ) on an annual basis to iwi. For the fishery year commencing October 1994 the commission determined that 2 fishery management areas FMA 1 and FMA 9, would be merged, and that the Tainui and Hauraki iwi would share in the quota in the merged area. The plaintiff trust board alleged that, by Mäori custom, there was no Tainui interest in FMA 1.

Other parties to the proceedings were anxious that the court should not consider custom, including issues of mana whenua and mana moana, when considering the trust board’s case, and had successfully sought adjournments (see Mäori LR Jul 1995 p6).

The plaintiff had therefore amended its statement of claim and now asked the court to consider whether the commission had breached natural justice in declaring that it would follow a policy of allocation based on custom (to iwi with rohe (traditional tribal boundaries) in the relevant FMA) and then departing from that policy without warning (by announcing the merger of FMAs 1 & 9).

Held: the plaintiff must be confined to their statement of claim. This was not an opportunity to examine the validity of a mana whenua/mana moana model of distribution. Arguments that the commission had seriously breached custom in allocating quota to Tainui in FMA 1 must be taken as arguments about the administration of a policy or the variation of that policy (for the purpose of these proceedings, it was assumed Tainui did not have customary interests in FMA 1).

The plaintiffs alleged that there was substantive unfairness because the stated policy was changed by the commission without prior warning, that there was unreasonableness because the commission failed to take account of matters it should have had regard to, and that a legitimate expectation of the plaintiff had been defeated by the failure to consult before the change in policy.

However, given the number of iwi and their separate characters, it is inconceivable that the commission could completely satisfy the expectations of every iwi in its interim management of the fishing assets. Documents showed that the commission discussed with Hauraki iwi in October 1994 a Tainui claim (first noted in 1992) to an interest in FMA 1. Although it knew this could be upsetting to Hauraki iwi, the commission could not dismiss that claim without a possible breach of custom in relation to Tainui. Consequently, in November 1994 the commission acknowledged that a possible dispute existed and invited discussion before making any final decision on interim management. Hauraki and Tainui were invited to a meeting, at which a consultant to the plaintiff trust board attended and made submissions. The allocation decision was announced after that meeting. On the evidence therefore, the allegations of unfair, preemptory and non-consultative conduct, were simply not made out. The claim should be dismissed.

[ed: an illustration of poorly thought-out, time-wasting, and expensive litigation surrounding the fisheries settlement.

In other fisheries proceedings, in NZ Federation of Commercial Fishermen (Inc) & Others v Ministry of Fisheries & Others (HC Wellington CP 237/95, 8 February 1996. McGechan J) the NZ Recreational Fishing Council, which was invited to join proceedings in which commercial and Mäori interests are seeking to increase the snapper quota available for the 1995-1996 fishing year, asked if its costs could be met by the public purse (invoking the little used s99A Judicature Act).  Commercial and Mäori interests objected, with Mäori pointing out that they too represented a significant group of the public. The council’s request was denied.]

 

 

Smith v Auckland City Council

AP 139/95, HC Auckland, 22 November 1995. Fisher J

This was an appeal against convictions under the Resource Management Act 1991 (breach of proposed and transitional operative district plans) for cutting the tree on One Tree Hill with a chainsaw. The appellant argued that in both “Mäori law” and “post Treaty law” (which included the Resource Management Act 1991) there was “overwhelming evidence” of the justice and legality of his actions. He had not only acted under ‘colour of right’ but his actions were in pursuit of the purpose provisions of Part 2 of the 1991 Act. Three particular points were argued, the meaning of sections referring to the Treaty and Mäori values in the Resource Management Act, whether the appellant’s actions were a “use” of the land in terms of the district plan and the validity of the council action in listing the tree as notable in district plans.

Held: prosecutions for breach of a proposed or operative district plan under s9 are not concerned with the resource management merits of a plan or provision of it and are in a different category from preparation of a plan, when Mäori issues are required to be actively considered (ie s6(e) relationship of Mäori to taonga, s7(a) kaitiakitanga, s8 regard for the Treaty). Nor could the council’s decision to bring a prosecution be challenged. Once the plan was made, the council was obliged to enforce it (see s84(1)), without revisiting the considerations under ss6-8. Otherwise no sensible enforcement of the plan could occur. A prosecution under s9 was merely consequential on the plan, and only in the preparation of the plan and its implementation in other contexts could wider considerations be taken into account. There had been “use” of the land merely by walking upon it and carrying a chainsaw on it.

As to the contention that the council had failed to adequately address the tree’s history, the importance of the land to Mäori and the inappropriateness of protecting this particular tree which was peculiarly offensive to Mäori, those were matters to be carefully considered when drawing up or reviewing the plan. Once made, a plan has the force and effect of regulations and is presumed to have been prepared and approved in accordance with the first schedule of the Act (ss76(2) & 83).

[ed: permission was given to appeal to the Court of Appeal as questions of law were involved and there was a substantial body of persons in the community to whom this was a matter of general and public importance, and the council did not oppose further appeal. The comments about the history of the tree are interesting. In making plans, do councils have to carefully consider Maori views of what objects they preserve eg stockade sites from the NZ Wars, the monument at Moutoa Gardens?]

 

 

Tareha and Foster v Solicitor-General

CA 157 & 167/95, 15 February 1995. Eichelbaum CJ, Thomas J, Williamson J

This was an appeal against an order forfeiting a house under the Proceeds of Crime Act 1991 which had been used as a place to sell cannabis. The issue was whether the Act permits forfeiture of the interests of innocent co-owners in “tainted” property (property used to commit or facilitate the commission of an offence punishable by imprisonment for 5 years or more - s2). Not only were 2 of the owners innocent of the offences, but the land on which the house stood was ancestral land, and the property was being retained as an asset for the benefit of the whänau and was held on trust for charitable purposes.

The court rejected the appeal, holding that the legislation is intended to have maximum deterrent effect and there are relief provisions so that the effect on innocent persons can be ameliorated. Questions as to how the court should use its discretion in this case were referred back to the lower court.

[ed: this case is noted because it suggests how multiply owned land could be affected by this legislation (while Mäori freehold land was not involved here, it comes within the definition of “property” in the Act - s2). There is limited guidance on how the interests of innocent co-owners are to be considered, and there is no reference to cultural considerations. The court has a discretion before make a forfeiture order to consider the ordinary use of the property and whether undue hardship to any person might result (s15(2)(a)-(b)) and once a decision to forfeit has been made, there is power to grant monetary relief to innocent parties (s18).]

 

 

Amaltal Fishing Company Ltd v Nelson Polytechnic

1/96 Complaints Review Tribunal, 29 January 1996. DJ Orchard (chair), EA MacDonald, P McDonald

The plaintiff ran a deep sea fishing operation employing 200 people and had a real interest in the provision of fishing cadet courses and sponsored candidates to such courses. The defendant ran fishing cadet courses with limited places available per 6 month course. The defendant entered an arrangement with the Education and Training Support Agency (ETSA), a body corporate established under the Education Amendment Act 1990 (s270), to reserve for Mäori and Pacific Islanders 4 places in its first course in 1994 and all 14 places in its second course. ETSA would provide funding to the defendant for each Mäori or Pacific Islander accorded a place under this arrangement.

An applicant for the cadet courses, who was working for the plaintiff’s, was told in January 1994 that no place was available in 1994 for him because places had been set aside for persons or Mäori or Pacific Island descent. The applicant was neither. The plaintiffs filed proceedings alleging breach of the Race Relations Act 1971 and the Human Rights Act 1993. The second cadet course was subsequently opened to all on the basis of merit alone.

Held: the restrictions on the first course meant that, unless a defence could be shown, there had been a prima facie breach of both s4(1) Race Relations Act 1971 (failure to provide services by reason of race) and the Human Rights Commission Act 1977 s22(1) (failure of training organisation to provide training by reason of race) and s26(1) (failure of educational establishment to admit person by reason of race) Three other grounds under the Human Rights Act 1993 s40(a) (refusal of training organisation to provide training by reason of race), s44(1) (failure of any person to provide services on grounds of race), and s57(1) (failure of educational establishment to admit a person by reason of race) were not proven as the provisions were not operative till 1 February 1994 and there was no evidence that after 1 February there had been a refusal of services. There had however been a prima facie breach of s67(1) Human Rights Act 1993 (publication of advertisement indicating intent to breach the Act) in the publication of a brochure in March 1994 indicating the second course intake would be restricted to Mäori and Pacific Islanders.

Defences under the 3 Acts are the same, the action causing the prima facie breach must be done in good faith for the purpose of assisting persons of a particular race, and those persons must reasonably be supposed to need advancement to achieve an equal place with other members of the community (Race Relations Act s9, Human Rights Act s29)

The tribunal accepted that the defendant had acted in good faith and for the purpose of assisting persons of the Mäori and Pacific Island race. The defendant had however provided no evidence that, on the balance of probabilities, Mäori and Pacific Islanders required assistance in the fishing industry. The defendant had simply filed a statement that it thought that debate a matter of government policy, which clearly supported such initiatives in view of the ETSA funding available. The tribunal said this approach to the proceedings was “most unsatisfactory”. It found that, since the defendant took this approach, it was likely that it had not independently considered its obligations under human rights legislation when it entered the arrangement with ETSA, which by law it was required to do. Therefore, on the balance of probabilities, breaches as outlined above had occurred.

GENERAL

Proposed legislation

Law Reform (Miscellaneous Provisions) Bill (No 5)

Includes an amendment to the Privacy Act 1993 making registers of shareholders of Mäori incorporations public registers.

Resource Management Amendment Bill (No 3) 1995

Clause 2(2) redefines the term “kaitiakitanga” to clarify that it is only exercised by Mäori.

[ed: in Rural Management Ltd v Banks Peninsula District Council (5 May 1994) the Planning Tribunal found that kaitiakitanga as defined in the RMA was not restricted to Mäori.]

The Crown’s Policy Proposals on Treaty Claims Involving Public Works Acquisitions

December 1995. Minister in Charge of Treaty of Waitangi Negotiations

This paper outlines the Crown approach to public works takings claims, which “tend to involve small parcels of land of relatively modest value”. The Crown does not accept that all public works takings of Mäori land since 1840 are Treaty breaches. Public works grievances will be viewed by the Crown as well founded where:

• Mäori were not paid any or adequate monetary compensation at the time of the taking;

• There was an inadequate level of consultation.

Inadequate consultation will not of itself give an entitlement to monetary redress, but this may be forthcoming where poor consultation resulted in landlessness, or the loss of special associations and/or for a variety of reasons there were reasonably available alternatives to taking the land.

A failure to offer back land which was taken and has become surplus to requirements is regarded as a Treaty breach only if this occurred after 1981 [when legislation first required such an offer back to be made], and where an exemption under ss40(2) & (4) of the Public Works Act 1981 cannot be made out. The Crown views offers back under the 1981 Act in themselves [ie without any other grievance issues] as inherently fair, even when the current market value for the land is required to be paid by former owners.

Financial redress will be considered only where financial detriment has occurred. Redress options include:

• return of land at nil or reduced cost;

• where land is still in use, return subject to a lease back to the Crown for its continued use;

• transfer to claimants of alternative lands;

• monetary compensation;

• a formal apology where appropriate.

The policy also notes that the Public Works Act 1981 is being reviewed as recommended by the Waitangi Tribunal. This will impact on future public works policy. The review will occur over the next 4-5 months. Comments on the proposals are invited to the Director, Office of Treaty Settlements PO Box 919 by 28 February 1995.

[ed: This is only a summary. The policy has been carefully drafted and requires close reading when particular claims are being considered. It appears to follow the Waitangi Tribunal position on compulsory acquisition spelt out in the Turangi Township Report 1995 (see Mäori LR Oct 1995 p4), but rejects the tentative view advanced by the Chairperson of the tribunal that perhaps all public works takings breach the Treaty guarantee concerning rangatiratanga (see Memorandum Wai 46, 17 Feb 1995 in Mäori LR Feb 1995 p3).]

Appointments

Race Relations Conciliator

Dr Rajen Prasad has been appointed the Race Relations Conciliator to replace John Clarke. Born in Fiji, he has lived in NZ since the 1960s. He has an extensive background in social services and child protection. His work has involved consulting to the Standards Committee of the Kai Awhina Social Services Industry Organisation. He has wide contacts with Mäori and Pacific groups (Minister of Justice, Press release 8 February 1996. The former conciliator, John Clarke, has been appointed Director, Mäori, in the Ministry of Justice).

Human Rights Commissioner

Christopher Lawrence has been appointed as a Human Rights Commissioner. He is currently with the Crown Law Office where his work involves Treaty of Waitangi claims. Between 1980 to 1987 he was a solicitor for the Aboriginal Legal Service. He is secretary of the Mäori cultural group He Manu Aho. He also has considerable experience in commercial litigation.

Waitangi Day Address

6 February. Chief Judge ET Durie

Among other matters, the Chief Judge argued that sovereignty is not a helpful word. State responsibility, rather than the absolute power sovereignty implies, is more appropriate today. Aboriginal autonomy is a better term than Mäori sovereignty, and means indigenous people recognised as having status as first inhabitants and enabled to manage their own policy, resources and structures of representation, and negotiate with the state the policy affecting them. Mäori would not have signed the Treaty if they believed their authority or autonomy would be diminished. Through 200 years the Mäori presumption of autonomy has remained and can be seen in movements like the Kingitanga, Paimarire, Ringatu, Ratana, Kotahitanga and later in Mäori councils, trust boards and the like. Aboriginal autonomy is about conciliation by empowerment, assuming that peace will come through the distribution of power, not its aggregation. This diversity is not divisive when there is a common purpose.

The Chief Judge also noted that older Mäori make a distinction between the Crown and government, seeing the Crown (perhaps extending to the Privy Council) as embodying in some way perfect law and as a body which can do no wrong. This view needs to be properly understood.

 

 

The Law and the Mäori

Richard Boast. Chapter 4 in A New Zealand Legal History, Brooker’s (1995)

Analyses Mäori law before and at the creation of the colonial state, places the Treaty of Waitangi and other legal documents relating to land in legal and historical context and provides a lengthy and very readable overview of legislation dealing with Mäori land from the confiscations of the 1860s through to Te Ture Whenua Mäori Act 1993. The chapter draws on unpublished research before the Waitangi Tribunal about the operation of native land legislation in particular districts. Boast concludes that “If the system applying to ordinary private land resembled the current confusion and chaos prevailing with Mäori land it is difficult to believe that it would have been allowed to continue almost to the dawn of the 21st century”.

He also discusses the recent resurgence of Treaty based jurisprudence centred around the unexpected rise to prominence of the Waitangi Tribunal. He argues that statute law, and thus Parliamentary sovereignty, rather than aboriginal title, has been the basic principle dominating the law affecting Mäori, and which Mäori have suffered under. Another feature has been the continuation since 1862 of the Mäori Land Court and associated land legislation. These 2 factors are unique to the NZ situation.

Annual index

Māori Law Review Index December 1995 to November 1996

Ngäti Paoa Whänau Trust

96A Hauraki MB 155, 17 November 1995. Carter J, with additional members JW Milroy, D Jaram

This was an application under s 30/1993 to determine the most appropriate representatives of Ngäti Paoa to: receive $1 million in settlement of certain claims to railways lands; present claims before the Waitangi Tribunal, receive benefits from the Waitangi Fisheries Commission, liaise with district and regional councils over resource management matters.

The Ngäti Paoa Whänau Trust, established mainly through the work of one woman over several decades, sanctioned by a kaumätua council, sought appointment as the representative of Ngäti Paoa. It was opposed by the statutorily created Hauraki Mäori Trust Board, and the recently established Rünanga o Ngäti Paoa and Marutuahu Whanui O Hauraki Tribal Board Inc.

There was also dissension over whether descendants of a second marriage of the eponymous ancestor of the tribe, Paoa, could be viewed as part of Ngäti Paoa. These descendants were not Hauraki people and were objected to by those challenging the application of the whänau trust, which had extended its definition of Ngäti Paoa to cover these descendants.

Held: section 30 gives a very wide discretion to the court, and it is not obliged to determine representatives, the word “may” being used in a permissive sense in the section (the Chief Judge, who receives applications initially, makes no judgment on whether the court should appoint representatives, and merely passes the application on). The court is able to take into account all the circumstances surrounding and arising out of the application. Ideally, representation should depend on:

• broad based consent of the people or a mandate;

• due process of consultation according to tikanga;

• credibility in terms of leadership;

• approval of rangätira and kaumätua;

• provision for accountability to the tribe.

If these principles were followed a consensus decision could be expected and court involvement will not be required. Commonly, applications under the section will arise where the tribe urgently needs to be represented. In such cases the court will “probably deal with the application on the basis of expediency and practicality ... rather than on strict adherence to the above principles. The court should not lightly make an order under the section, as a court appointment transgresses the right of the tribe to appoint its representatives, and invariably would place the appointee in a position of strength. Tribes should be encouraged to resolve representation disputes through traditional means.

The court looked at several whakapapa from different sources concerning Ngäti Paoa origins and concluded that they were broadly similar in approach. The Hauraki Mäori Trust Board contended that Ngäti Paoa’s traditional association with a confederation of 5 Hauraki tribes known as the “Marutuahu compact” meant that groups representing more than just Ngäti Paoa alone were appropriate representatives for the tribe. The court found that while Ngäti Paoa may have consulted with and taken collective action under the confederation in the past, such affiliation had not prevented tribes under the confederation from acting autonomously—they had sometimes even fought each other. Representation was still a matter for the autonomous tribe to decide, although it might weigh up its traditional associations and the benefit of unified action from time to time.

As to the issue of who could be included as Ngäti Paoa, the court noted that this question was not directly before it and it could therefore make no binding determination. It was not happy with the view that a whakapapa link alone was sufficient to establish a person as belonging to the tribe. “Prior to the Treaty of Waitangi hapü/iwi were not static. The growth of some tribes and decline of others shows how they changed, war and sickness often being the reason. While many Mäori could whakapapa to many tribal groups their tribe was the one with which they chose to reside and associate. They derived benefits from that association but were also subject to responsibilities. It is difficult to imagine that a person who physically associated with one tribe, would, simply, by association by whakapapa with another tribe have been allowed to derive benefits from that tribe without undertaking the responsibilities that go with membership.” It noted one suggestion that whakapapa should be looked at alongside evidence of turanga (where a group/person was physically located). After reviewing the arguments and statements from past minute books, the court advanced a view of the traditional affiliations for consideration, but recommended the tribe investigate the issue further.

The court then reviewed each of the bodies claiming representation in turn.

The whänau trust, acting since about 1983, had a history of support from a council of kaumätua (although there was no clear evidence that the council had directly considered the issue of wider Ngäti Paoa representation), and had received over $1 million from the Methodist Church intended mostly for the benefit of Ngäti Paoa. However, the trust deed did not make the Ngäti Paoa iwi the primary object of the trust and the monies could be applied to persons outside Ngäti Paoa. The trust had not achieved a clear mandate to act for Ngäti Paoa in all matters because a meeting called for this purpose had not been properly representative of tribal opinion. The trust undertook work which appeared to be of benefit to Mäori generally and not just Ngäti Paoa. The court was also unhappy about the degree of power which could potentially be wielded by the trust and the central personality who had done so much for it over the years. The trust was also not obliged by its deed to be accountable to the whole of Ngäti Paoa. The court thought the proper role of the trust should be to lend support to the establishment and management of a properly representative body, even perhaps acting as agent for it at times.

The Hauraki Mäori Trust Board had represented Hauraki tribes in major land claims in the region and in all fisheries matters since 1990. Separate fishing areas for each iwi were difficult or impossible to define. While its origins were in the Mäori Trust Boards Act 1955 and the Minister of Mäori Affairs retained certain powers in respect of the board, this did not make it an agent of the Crown, and this Päkehä structure could be made to act on behalf of iwi. However while the single Ngäti Paoa appointee to the board represented the tribe’s interests there, he could not bind the tribe on matters within their own autonomy.

The rünanga had been created as a result of the devolution of the Mäori Affairs Department and in anticipation of receiving central government funding on behalf of the tribe through the mechanism of the Rünanga-A-Iwi Act. With the repeal of that Act however, it had lost all funding support and had never functioned as a properly representative body. It now represented no more than the views of a small group.

Accordingly, it was appropriate for the court to determine at an early stage that some body receive the $1 million in settlement of claims to railways land (since interest was accruing), and the whänau trust was the “only serious contender” for this role. The court did not believe it had jurisdiction under this application to determine who should finally share in the funds, merely who should hold them for distribution. Since the whänau trust did not presently havethe structure to ensure that it would represent all Ngäti Paoa, it was within 2 months to file an undertaking to hold the monies in an interest bearing account for the benefit of Ngäti Paoa pending a further court direction as to distribution.

No determination needed to be made at present as to the persons to represent the tribe before the Waitangi Tribunal. Claims concerning the tribe had been received from both the trust board and the whänau trust. This was consistent with the right the tribe had to choose to act either autonomously or with other tribes—and take advantage, for example, of the extra research resources the trust board had. Representation issues might have to be revisited after the Waitangi Tribunal had reported on the claims, when much more information would be available to make a determination.

The trust board, having represented the tribe in fisheries matters to date, was the appropriate body to represent the tribe to the Treaty of Waitangi Fisheries Commission. The board was not entirely representative of the iwi however (a payout to Ngäti Paoa had been channelled to a single marae without consultation with the iwi), and the representation order would continue only until 31 March 1987, pending Ngäti Paoa creation of a properly representative body.

The whänau trust had been acting competently on behalf of the iwi in resource management matters to date and was therefore the appropriate body to continue to do so. This determination did not however decide who were the tangata whenua of any particular area and there may be other tangata whenua in regions Ngäti Paoa nominate as theirs with a right to separate consultation by local authorities over resource issues. This representation order would continue until 31 March 1998.

The court concluded by urging Ngäti Paoa to create a body properly representative of the iwi and indicating its intention to direct payment of the $1 million railways settlement to that body when it was established.

[ed: the issues raised in this judgment are applicable to other locales, where a mixture of rünanga, trust boards and incorporations claim to be representative of iwi. The confusion among groups claiming representation can partly be laid at the door of government, which initiated the policy of devolving resources to tribes, but failed to put in place a coherent policy for tribal representation. Representation now has to be settled on this ad hoc basis as treaty settlements and other pressures demand.]

Rotoma No 1 Block Incorporated

Appeal 1995/17, 25 January 1995. NF Smith, AD Spencer, GD Carter

This was an appeal from the decision of Savage J reported at 214 Rotorua MB 223 (reviewed in Mäori LRSeptember 1995 p2). The incorporation wished to promptly roll over and extend leases over 170 sections fronting the lake and on which were situated many holiday houses. It was felt that reasonably lengthy terms of lease were required to encourage the erection or maintenance of buildings to an adequate standard. A special resolution gave power to the committee of management of the incorporation to, in its discretion, enter into leases up to 40 years on terms and conditions set by the committee. In his original decision, the learned judge interpreted s254/1993, which limits the power of incorporations to lease land for over 21 years, to rule out such delegation, and required the incorporation itself to notify its shareholders of the terms and conditions of the proposed leases and pass special resolutions concerning them.

Held: while the kaupapa of the 1993 Act is to facilitate and promote the use of Mäori land by its owners, the provisions of the Act regarding incorporations and the Mäori IncorporationsRegulations constitute a code regulating the administration and management of incorporations to allow them to manage lands in accordance with the kaupapa of the Act. The 1993 Act also considerably extended the operations of incorporations, giving them all the powers of a body corporate, and enabling them to undertake any business or activity, or enter any transaction (ss250 & 253). Incorporations act through their committees of management (s270).

The court agreed with submissions of the incorporation that s254 was concerned with the fact of alienations over 21 years and did not attempt to regulate any of the commercial aspects of the transaction such as the rent and specific terms. The incorporation had therefore acted appropriately in identifying the land and seeking a special resolution as to leasing policy, leaving the settling of commercial terms in the hands of the committee of management. The court below had placed emphasis in the section on the words “the lease” and interpreted this to refer to a particular lease, whereas the emphasis in the section could be said to be on the “grant” of the lease. Had s254 intended owners to consider the terms and conditions of any lease, this could easily have been included in the section, but was not.

Owners do however have power under the section to request particulars of a lease if they consider these material, and may even impose terms and conditions. In effect what was sought here was a change in policy as to the term of the leases. That had been granted, there had been no objection, and s254 should not be interpreted restrictively. That owners had in fact insisted that only 20 year leases be given, with one right of renewal.

The policy adopted in this case (though not a reason for the decision of the court), made “sound commercial sense” in that the committee sought to deal with the leases to the best commercial advantage of the shareholders and it was appropriate that the committee be able to negotiate with potential lessees unconditionally rather than be fettered with a condition that the leases be subject to approval by shareholders. There was also a safeguard in that the policy approved by the shareholders could be rescinded or amended by special resolution at a subsequent general meeting.

[ed: this decision is an indication that the 1993 Act is not clear, as a matter of policy, on the degree of freedom which incorporations should have from the restrictions on alienation of Mäori land (see the comment that the Act hinders “commercial aspirations” in the report of the Joint Committee on Native Title, reviewed below).]

Te Kenehi Robert Mair v District Court at Wanganui

AP15/95 HC Wanganui, 18 December 1995. Heron J

This was an appeal against a sentence of 21 days imprisonment for contempt of court. The appellant had recited a karakia (prayer/incantation) in court in the presence of the judge after the judge had warned that while he would allow the karakia, it should not be recited while he was in the courtroom. The appellant nevertheless insisted on reciting the karakia in the presence of the judge, saying that he was not being contemptuous but merely following his own culture, the Treaty of Waitangi, and the Bill of Rights. He was held in contempt and placed in custody overnight. At sentencing the following day he rejected an opportunity to remedy the contempt and again sought to recite a karakia, arguing that what he had done was fundamental to him as a Mäori and not wrong.

The appeal was on the grounds that the order committing the appellant to prison was,technically, a nullity, and alternatively, that the period of detention was manifestly excessive. A further ground of appeal, that the judge’s direction prohibiting the karakia was not lawful and was contrary to the provisions of s15 NZ Bill of Rights Act 1991 was not pursued.

Held: the appeal should be dismissed. The court reviewed the relevant sections of the Summary Proceedings Act 1957 and could find no substance to the argument that the sentencing to 21 days was technically a nullity. As to the severity of the penalty; considering the full transcript of the exchange (reproduced in the judgment), there could have been no doubt that in the appellant’s mind this was a trial of strength and a desire to impose upon the court a ritual which interfered with the conduct of the case and which the judge was not prepared to countenance.

Insistence by the appellant on saying the karakia in the presence of the judge delayed the case for over half a day and eventually resulted in the loss of one full day of valuable court time.

While some judges have allowed karakia and participated in them, this is a decision for each particular case and judge and undoubtedly there would be times where such a ritual would be considered inappropriate. The judge here was to some extent “set up”. While there may be room for greater emphasis on matters like karakia, courts are “secular institutions who have to deal with litigants of various races and creeds, and to emphasise one particular culture creates its own imbalance.” One view is that “there is something slightly disturbing to the Courts appearance of impartiality to make a concession to the cultural mores of one group when sitting on a case which may be determining the rights and obligations of members of other groups as well as those of Mäori.” When the subject matter of a case involves entirely Mäori interests judges have unhesitatingly allowed karakia, while reserving the right to attend in person or not. The use of an independent person to deliver the karakia may be desirable also.

Experience from the Court of Appeal and the hearing of important Treaty cases are no precedent. District Court judges deal with many cases and order and predictable procedures are essential. This does not preclude judges “from recognising the occasion when a karakia can be said with goodwill on all sides and as a helpful gesture to the resolution of a case.” However, involving any person in a karakia against their wishes is “insensitive and unacceptable”. The appellant was well aware of his course and could have backed down but did not. “However uncertain its definition and scope may be in some respects, contempt of court is undoubtedly one of the great contributions the common law has made to the civilised behaviour of a large part of the world” (Borrie & Lowe’s Law of Contempt 2nd ed).

Twenty-one days may have been a severe sentence, but there was wide public concern about the conduct of some cases and the public interest in the protection of the administration of justice had to be “made plain across the land.” The sentence was not manifestly excessive, although the appellant probably needed to serve only a few days of it to understand that contempt is regarded seriously. In the event, he served only 7 days.

The Queen v Joseph Pairama

T21/95, HC Hamilton, 20 December 1995. Penlington J

The father of a man accused of kidnapping, aggravated robbery and unlawful taking of a motor vehicle indicated that he wished to represent his son. At a preliminary hearing (which the father was unable to attend), the mother of the accused raised issues concerning representation, composition of the jury and use of the Märi language in theforthcoming trial.

Held: the court rejected the submission that because Mäori custom requires a father to represent his son, it would be contrary to article 2 of the Treaty of Waitangi and the Declaration of Independence of 1835 for the accused to be denied this right. The law is clear that rights conferred by a treaty cannot be enforced in the courts except in so far as statutes recognise them. This was discussed in relation to the Treaty of Waitangi in NZ Mäori Council v AG [1987] 1 NZLR 641. The Declaration of Independence must be in the same position. Those documents do not represent the relevant law.

Representation by other than legal counsel was considered in Mihaka v Police [1981] 1 NZLR 54. There it was held that reference to a “Mäori Agent” in s17(2) Law Practitioners Act 1955 refers to persons appearing before the Mäori Land Court only. Nor in this case was it contended that the accused’s father was a “Mäori agent”. Nor was assistance by a “Mckenzie friend” sought in this case. Other cases suggest that in exceptional circumstances the courts may allow a person to be represented by another who is not legal counsel. Even if this discretion was not ruled out by s354 Crimes Act 1961 (which refers to an accused being represented only by themselves or counsel), the court could see no reason to exercise a discretion in this case.

The court also rejected a submission that the accused should be tried by a jury consisting of 6 Mäori and 6 Pakeha on the basis of the equal partnership intended by the Treaty of Waitangi. There is no law to order a jury of any particular composition. Until 1962 it was possible to have an all Mäori jury (s4 & ss141, 151 Juries Act 1908 and Juries Amendment Act 1962). The Juries Act 1981 in its rules for jury selection does not provide for a jury of Mäori or of any other ethnic composition to be selected.

The Court noted a request that the proceedings be in Mäori, and took this to mean that the accused intended to speak Mäori at his trial in accordance with s4(1) Mäori Language Act 1987.

I Berkett & Another v Minister of Local Government & Others

A103/95, 10 November 1995, Bollard J, Dr AH Hackett, IG McIntyre

Two Tauranga Mäori objected to a consent for subdivision of farmland on Motiti Island. One of the subdivisions was a small island which the Mäori Land Court had already recommended be set aside as a Mäori reservation. The island was not within the district of any territorial authority. Accordingly, the Minister of Local Government was deemed to be the territorial authority in respect of the island and he had appointed commissioners to hear the subdivision application.

Held: the tribunal could not investigate the legality of the title to the land—for which a certificate of title had been issued under the Land Transfer Act. The tribunal also rejected a submission that the whole island be regarded as wähi tapu, finding that local elders agreed that 3 distinct areas of significance to local Mäori lay within the proposed subdivision land. The tribunal was therefore surprised that although Mäori inhabitants of the island had been consulted about the subdivision consent, other local Mäori with known links had not. The tribunal said it had indicated in a number of cases that it is good practice for planners preparing reports for a hearing body to consult Mäori where matters under ss6(e), 7(a) and 8 arise. This should be done where the applicant’s assessment under s88(6) shows no evidence that local Mäori have been consulted. A facilitator should be engaged to consult with Mäori and prepare a report to present to a later hearing. This approach was not automatic for all cases raising consultation issues, but here there was no district plan covering the island. Preparation of such a plan is required by the Resource Management Act 1991 to include wide consultation.

Mangakahia Mäori Komiti & Others v Northland Regional Council & Others

A107/95, 14 November 1995. Bollard J, Dr AH Hackett, JR Fitzmaurice

The regional council granted 17 consents for dairy farmers to extract water from a river for an irrigation scheme. Local Mäori objected completely to the scheme mainly on the ground that the spiritual values of the river would be affected. They appealed the consents decision, citing inadequate consultation and regard for Mäori values.

Held: looking first at the consultation undertaken, the council officer in his report on his discussions with local Mäori had actually recommended that the applications be refused because of Mäori values which would be affected. The council had, appropriately, not been directly involved in consultation, since it was going to have to determine the issue as a quasi-judicial body. While there is a dividing line over which the council as a decision maker cannot go, the council officer can go beyond merely listening to concerns expressed and be proactive in discussing options available to tangata whenua in responding to the application in light of relevant planning laws. But where the sides had totally opposite views as here, there is little the officer can do but listen.

Despite the concerns of local Mäori, the consents should be allowed. The council approach had been to minimise the affront to Mäori and otherwise balance their interests.  However consents should be limited to 6 years and there would be equal consent-holder/Mäori representation on a 4 member liaison panel to be established by the consent-holders to work with their irrigation management committee. This liaison panel would be given all water quality information. The tribunal was satisfied that the river as a fishing resource will not be adversely affected by extraction. “[A]gainst the background of the depth of tangata whenua feeling and concern in relation to the river as a taonga, the consent period will be such as to ensure that practical experience in irrigation can be gained and data gathered, so that the council, the tangata whenua, and the farming owners can reconsider the question of whether irrigation via the river should be continued and if so, whether to the same degree.” If the farmers felt 6 years was too little, that was their commercial decision. Such short consents are not unusual.

[ed: this case is interesting in that spiritual concerns were a big element in the outright refusal of Mäori to countenance the scheme. The tribunal only briefly considered a submission that there was no social or economic necessity to the irrigation scheme, its main purpose being to further increase production from the farms. The decision in this case can be contrasted with the decision in the Te Rünanga O Taumarerecase reviewed below.]

Te Rünanga O Taumarere & Others v Northland Regional Council & Far North District Council

A108/95, 24 November 1995. Sheppard J, PA Catchpole, F Easdale

The rünanga, representing local Ngapuhi iwi, objected to a resource consent permitting the discharge of highly treated effluent into a local bay. The bay was of great spiritual and cultural significance to the iwi. The ancient custom of purenga (ritual cleansing) was still sometimes carried out there. The bay was also a shell fish gathering area of great cultural value and made the tribe “wealthy”—allowing the tribe to provide for its own and guests. The rünanga contended that the effluent discharge would give cultural offence, and the effluent must be discharged to land.

Held: the proposed sewage scheme would eliminate all contamination and therefore public health risks and was long overdue. In this respect the proposed scheme would have “considerable beneficial effects on the environment.” Effluent reaching the bay would not have any actual or potential effects of a physical kind.

Rünanga witnesses said however that no matter how well treated physically any discharge of effluent, it would be perceived by local Mäori as altering the mauri (spiritual quality) of the bay and they would view the shellfish there as contaminated and cease to gather from the bay. The tribunal found as a fact that this was the Mäori belief and that they would regard any effluent discharge as an affront to their standing as tangata whenua and as kaitiaki.

Although the council had been “assiduous” in investigating alternative sites and methods for disposal, commissioning several reports on land disposal options, its consideration of these options was affected by the confidence it had in the high quality of the effluent which could be achieved in the bay discharge option. This was not responsive to the concerns expressed by the Mäori community.

The tribunal then looked at numerous planning instruments affecting the proposal. All made strong statements about the need to give full consideration to Mäori cultural preferences. While the proposed scheme conformed to many requirements of these plans, to allow the proposal before the feasibility of a deep bore land disposal option had been fully investigated would be to “fail to provide, as far as practicable, for interests and values of the tangata whenua." That would not conform with the expectations raised by the New Zealand Coastal Policy Statement, the proposed regional policy statement, the transitional proposed regional coastal plan, the proposed regional coastal plan, the proposed regional water and soil plan, or the transitional district plan.

Turning to the statutory objectives of the RMA, the treated effluent proposal failed to provide for the social and cultural wellbeing of some Mäori people and to that extent fell short of the definition of “sustainable management” in s5(2). In particular, while the proposal would meet the sewage requirements of future generations, it would fail to provide for Mäori cultural and social needs in the future—s5(2)(a). While the proposal had been designed to avoid or mitigate adverse effects on the physical environment, it would not avoid or mitigate adverse effects on the social, economic, aesthetic and cultural condition of local Mäori—5(2)(c).

In its effect on Mäori cultural values, the proposal was also an inappropriate use of the coastal environment, the preservation of which is a matter of national importance—s6(a). The proposal also failed to provide for the relationship of Mäori with their culture and traditions in accordance with s6(e). Similarly, it also failed to have proper regard to kaitiakitanga—s7(a).

While the proposal had been developed by the council in a way which took into account the principles of the Treaty of Waitangi, as required by s8, the principle of active protection had not been followed in that the council had not fully eliminated land disposal options.

“We recognise the importance which the District Council must have given, rightly, to the high quality of the effluent as it could be measured in physical ways. However the Resource Management Act specifically directs that importance is also to be given to cultural matters, and particularly Mäori traditional relationships with water, and the principles of the Treaty of Waitangi, including active protection of Mäori interests. That those matters deserve more than lip-service but are intended by Parliament to affect the outcome of resource management in appropriate cases is evident from the primacy given to Part II in the Act, and in the strong language of its contents.”

The tribunal reserved its decision, pending further work by the council on the land disposal option. If that option proved unfeasible, only then might the urgent public health needs of the community prevail even over the important Mäori values involved.

[ed: the decision is a clear indication that the Mäori and Treaty requirements in the RMA do not mean “business as usual” with a passing reference to Mäori interests, but that those interests can fundamentally affect planning outcomes. This decision will be of great interest to local authorities and Mäori groups in other districts where sewage schemes are contemplated. This decision makes interesting reading alongside the Mangakahia Mäori Komiti case decided just ten days earlier (reviewed above).]

Te Rünanga O Ngäi Tahu Bill

No 266-2, as reported from the Mäori Affairs Select Committee

After a lengthy time before this committee this important bill has been reported back with numerous changes, the major ones being:

•  a more detailed definition of the takiwa of Ngai Tahu Whanui;

•  a right of appeal to the Mäori Land Court where the rünanga rejects an application for membership of Ngai Tahu Whanui - such a right exists in relation to trust boards under the Mäori Trust Boards Act 1955;

•  a requirement for the rünanga to keep a roll of members similar to the rolls kept by trust boards;

•  a procedure to modify the papatipu rünanga making up Ngäi Tahu, by Order in Council, on a recommendation from the Minister of Mäori Affairs. It is provided that either the MLC using its power to determine appropriate representatives under s30/1993, or the rünanga itself, using an internal procedure complying with the rules of natural justice, shall advise the Minister on the necessary change. Once the rünanga adopts and has gazetted a satisfactory internal procedure, that would prevent further applications under s30/1993;

•  the rünanga is deemed to represent Ngai Tahu Whanui for the purposes of all legislation requiring consultation with iwi. New provisions require that when such consultation is a requirement, the rünanga must seek the views of all papatipu rünanga who, in its opinion, “may have views that they wish to express” and must have regard to those views, and may not act to prejudice any one papatipu rünanga unless the central rünanga reasonably believes the broader interests of Ngai Tahu Whanui would be served.

The select committee commented that the bill was introduced as a private measure and standing orders requirements that the bill be displayed at district courts were waived. The committee said this gave it a difficult task of ensuring all affected individuals had an opportunity to inspect the bill. This difficulty, and complaints about inadequate consultation over the bill are in part behind a requirement that the charter of the rünanga will have to be available at all times from the head office of the rünanga.

Crown Forest Assets Amendment Bill

No 65-2A, as reported from the Finance and Expenditure Select Committee

This bill retrospectively amends the formula for determining the annual licence fee charged for Crown forestry licences. The forestry company and licensee Carter Holt Harvey challenged the Crown assessment of its rent, alleging that the licence did not accord with the Act and that it was being overcharged. This bill was introduced to protect the Crown position. It’s retrospective nature was challenged (unsuccessfully) in Carter Holt Harvey Ltd v Anor & A-G (CL 39/94, 31 January 1995 HC Auckland, Barker J). Mäori authorities have been supportive of the bill because it will protect the level of settlement and research monies which Mäori groups may receive for their forest claims.

Joint Committee Meeting with the Australian Joint Committee on Native Title—Report of the Mäori Affairs Committee.

I-9F, presented in the House of Representatives 19 October 1995

This report records an exchange of views between the Mäori Affairs Committee and members of the Joint Committee on Native Title. The group examined developments in native title matters in Australia and comparisons with Treaty of Waitangi claims settlements. The formal proceedings produced several statements including one that “despite ... being the subject of rigorous scrutiny both within and outside Parliament there were certain parts of Te Ture Whenua Mäori Act (Mäori Land Act) 1993 that, to a certain degree, continue to hinder the commercial aspirations of Mäori. However, the 1993 Act was far more mandated than its predecessors.”

The committee looked at the elements required to ensure the sustainability of claim settlements and felt that these included:

•  Ensuring appropriate consultation processes were in place providing clear mandates from claimant groups to avoid future re-litigation;

•  The possibility of instituting generational targets for the settlement of grievances (provided these are not used to delay redress). Such an approach could also include targeting of particular areas in a decade;

•  Need for settlements to clearly exhibit real opportunities for people at the “grass-roots” in the regions;

•  Recognition that sustainability is not just about the quantum of assets revested in claimant groups (eg importance of the Crown’s apology in the Tainui settlement);

•  Provision of appropriate resources to claimant groups to facilitate consultation and negotiations

•  As part of any settlement, commitment to the development of an on-going relationship between claimant groups and the Crown.

The House has been invited to take note of the report.

Report of the Standing Orders Committee on the Review of Standing Orders

I-18A, 1995

This report reviews the Standing Orders of the House of Representatives in light of the forthcoming election under the new mixed member proportional (MMP) system. It will be a central document facilitating the redistribution of power within Parliament under the new system. Changes of note:

•  The Mäori Affairs Select Committee will have a wider role. An overall review function for the committee was considered, to provide for proper scrutiny of the delivery of services to Mäori having regard to devolution and the changing role of Te Puni Kokiri. However the scrutiny function of all committees has been broadened so that it is expected that they will all become “much more involved in considering complex policy issues, ... prior to legislation being drafted”. Consequently a review function does not need to be spelt out.

•  While the first source of advice to committees on any legislation will continue to be the minister and his or her department, “committees may wish to contest this advice and may want an independent source of advice” on a range of matters, the first listed in the report being “implications of the Treaty of Waitangi”. Appropriate experts may be called, with their contracts arranged with the Clerk of the House.

Apart from these changes, Mäori members will find that the House continues to be, in terms of its Standing Orders, a solidly European affair.

Settlement of Waimakuku Whänau Trust claim

Press release, 20 December 1995. DAM Graham. Minister in Charge of Treaty of Waitangi Negotiations

The Crown and representatives of the trust have signed a deed settling a claim concerning 726 acres of farm land and buildings on the Napier-Taupo road, taken in 1929 by the Crown without payment of compensation. The land had been returned in 1970, but by then buildings had fallen into disrepair and a large quantity of valuable native timber had been removed. The agreement includes a Crown apology and $375,000 as full and final settlement of all the trust’s claims.

Te Roroa claim

Press release, 12 December 1995. DAM Graham. Minister in Charge of Treaty of Waitangi Negotiations

Alan Titford has accepted a Crown offer to buy his Maunganui Bluff property, containing the Manuwhetai wähi tapu, of critical importance to the Te Roroa people. The property is to be placed in a regional land bank. The 1992 report of the Waitangi Tribunal on the Te Roroa claim recommended the return of the land.

Answering a question on progress with settlement of the overall claim, the Minister told the House in December 1995 “Settlement of the claim has been accorded a high priority by the office [of Treaty Settlements] in its annual overview report.” The appointment of a Crown negotiator was “imminent” and a proposal was being submitted to Cabinet for further claimant funding. A draft Crown negotiating brief would be submitted to Cabinet in the New Year, however, “the claim also involves significant third party issues, such as the proceedings being taken against the Crown by the Aranga farmers. These have to be addressed in conjunction with the Te Roroa claim to ensure progress towards settlement” (Replies Supplement 12 December 1995 p36)

Report of Submissions. Crown Proposals for the Treaty of Waitangi Claims

December 1995. D Graham. Minister in Charge of Treaty of Waitangi Negotiations

This report summarises the 2077 submissions received on the proposals released in December 1994. Eight hundred and six nine submissions were in the form of cards rejecting the proposals as flawed from their inception, 328 were form letters urging the Government to retain control of the conservation estate, and 880 submissions were categorised as “original” ie written or prepared by the submitter (including oral submissions at hui called to discuss the proposals). A national hui at Hirangi in September 1995 rejected a Government request that a working group of 4 Crown and 4 Mäori representatives produce a report explaining the issues, for public release by the government.

The submissions generally attacked the government proposals, and displayed a wide range of conflicting views on the settlement process. Very few positive comments appear to have been received. The Hirangi hui described the proposals as “another fundamental breach of tino rangätiratanga” and rejected them in their entirety. Among matters raised:

•  Many submissions rejected the proposals because they had been developed in a unilateral manner, contrary to the principle of partnership and comments by both the Court of Appeal and Waitangi Tribunal on the approach partners should take towards consultation.

•  There was some concern that the settlement proposals focused extensively on confiscation, ‘seriously misrepresenting the historical situation”. Resources were said to have been lost in many other insidious ways, for example through native land legislation.

•  Very few submissions supported the $1 billion total size of the fiscal envelope. One commented: “It is not much compared to the $97 million to rehouse Cabinet. This amounts to $4 million a Cabinet Minister compared to the envelope’s proposition of $3000 a Mäori”. The methodology for reaching the figure was questioned. Only one submission said that $1 billion was too much. The report lists 52 suggested alternatives to the settlement envelope policy.

•  Many submissions objected to any use of the conservation estate to settle claims, since it is ‘public property’ for all New Zealand. Mäori submitters generally followed the line that “it would not be acceptable to wider New Zealand for a thief to steal a new car and say 150 years later that he will not return [it] since it has gained vintage status with special qualities to be appreciated by all.” Some questioned exactly what the term “conservation estate” meant.

•  Concern was expressed that only the use and value of natural resources to Mäori, rather than their ownership by Mäori, would be recognised in settling natural resource claims. There was also concern that the Crown appeared to be using the Court of Appeal decision in the Te Ika Whenua case to limit modern Mäori claims to natural resources to the uses made of those resources or contemplated in 1840.

•  Although not raised in the December 1994 proposals, submissions were also received on the protection mechanism for the sale of Crown surplus lands, with many submitters unhappy about the degree of discretion the Crown retained to sell or retain land bank properties, and to charge against the final settlement envelope the costs of holding land in land banks.

[ed: there are obviously many ideas in the community about how to deal with Treaty claims. A listing of alternatives, inviting submissions, followed by a shortlisting and final decision (ie a standard consultative approach), might have been a more useful process to follow and would have engendered more trust. Commenting on the general proposition that Mäori had not suffered unduly through colonisation and should not seek broad recompense, one submission noted “The essential quarrel is with the way in which colonisation brought about a transfer of power and of resources; it is not with the way in which it also brought a whole range of skills. An invasive culture is not, from the vantage point of the invaded, a package deal including everything from nutrition to political institutions.”]

Harbours Management. A Review of the Harbours Act 1950

Ministry of Transport discussion document. September 1995

The main purpose of this review is to identify how the Harbours Act 1950 can be replaced with legislation that provides a comprehensible, flexible and durable regime to regulate navigation safety. One of the principles of the reform is that the final legislation give tangata whenua an opportunity for input into the regulation of navigation safety.

The report considers the policy to apply in a hypothetical situation where tangata whenua claim ownership of a harbour and there are also mahinga mätäitai, tauranga waka and wähi tapu within it. The government is currently developing policy on the ownership issue and this will be “resolved in the near future after consultation with tangata whenua.” The report proposes that the Local Government Act 1974 be amended so that local authorities will be responsible for controlling navigation and be required to consult with tangata whenua and may delegate functions to tangata whenua. The current Harbours Act contains no provision obliging local governments to take principles of Treaty in to account when regulating navigation safety. A new Act might do so. Mahinga mätäitai would be administered under the Fisheries Act 1983, but the regional coastal plan should cater for navigation issues affecting these. Similarly, while the wähi tapu and tauranga waka would be regulated under the RMA, the regional coastal plan should regulate navigation activities through them. The RMA requirements would also cover issues concerning the placement of navigation aids.

As to harbour board lands, in the local government reorganisation in 1989 local authorities were given the endowment lands formerly held by harbour boards. Presently, permission fromthe ministers of Transport and Finance is required before these can be sold (ss143A-143C, Harbours Act 1950). Repeal of the Harbours Act would remove this requirement. “As the ownership of this land was transferred from the Government to Harbour Boards, tangata whenua could not lay claim to the land under Te Tiriti o Waitangi. A possible exception might arise if the land that was transferred from the Government to harbour boards had been taken by Government under the Public Works Act. The Government is currently considering this issue.”

Republican New Zealand: Legal Aspects and Consequences

NZ Law Review 1995 Part III p310. FM Brookfield

This article considers the possible methods and consequences for NZ becoming a republic. NZ is already a de facto republic with the Governor-General virtually functioning as a president appointed by an elected prime minister. Consequently, change to a republic could be achieved with minimum disruption to existing laws. However, some factors suggest a more thoroughgoing change is required, including the Treaty and Mäori concerns about the effect of losing the link to the monarchy. Although the Treaty is becoming a foundational document, and could easily survive the transition to a republic (as similar documents in other countries have survived through constitutional change), Mäori will expect to at least be consulted over such a change, and their misgivings may be politically influential enough to ensure some protection for the principles of the Treaty in a written constitution as recompense for “the loss of perceived personal obligations of the Monarch.” Those who argue that the NZ Parliament cannot create a republic since it cannot abolish one of its fundamental constituent parts (the monarchy), must admit that the Mäori case to be considered as a fundamental element is also strong. Therefore, the courts might recognise “a statute abolishing the monarchy, passed by Parliament with the concurrence of a virtually unanimous House of Representatives with the support of separate referendums of Mäori and Pakeha electors”, since, even though it would be technically revolutionary, the “supporting facts of constitutional life” would be established in such legislation.

One further consequence of such a change would be a change in the basic theory of land law. Presently all land is vested allodially in the Crown and land owners are technically tenants in fee simple of the Crown. The State could simply replace the Crown as allodial owner. However, legal reality suggests land owners should be given full allodial ownership. The Law Commission has already suggested such a change (Tenure and Estates in Land PP 20 (1992)). This change could also see the vesting of any lands still encumbered with Mäori customary title(of which very few hectares, if any, remain) in the persons communally entitled. This “recognition of the indigenous customary title as itself allodial and not merely as an encumbrance on the Crown or State allodium” would nevertheless be symbolically important and accord with the rangatiratanga preserved by article 2 of the Treaty.

Annual index

Māori Law Review Index December 1995 to November 1996

Maori Land Court and Appellate Court

Tauhara Middle 4A1L1B1A and Northcroft

9 Waiariki ACMB 49, 27 October 1995. Hingston, Spencer, Isaac JJ

A husband willed his interest in Maori land to his wife. Under s164/1993 she made a gift of the land to one of the children of her husband s brother. The executor of the brother s estate argued that the gift should have been in trust to all of his children and that the court should not have approved the gift.

Held: the appellant, being the son of the husband s brother, was a member of the preferred class of alienees and was materially affected by the order and therefore had standing to bring the appeal under s58/1993. The meaning of materially affected was discussed in Awarua 3D34B McCarthy v Collerton (1961) 12 Whanganui ACMB 75.

The fact that the MLC had dealt with the application by telephone conference (the donor had arthritis) did not affect the outcome. Section s69/1993 enables the MLC to receive any information which in its opinion will assist proceedings. The judge was satisfied he was dealing with the donor. The donor was aware of the dispute among the children but still intended the gift for the one child. Consequently the appeal failed.

When alienations are subject to preferred class preference, being of the class does not give a person rights against others in the preferred class. The provision is a shield protecting all the preferred class from outsiders entering the title. For the appellant to succeed in this case he would have to have established grounds exclusive of preferred class considerations, although the court would take account of remoteness from the alienor where close relatives of a donor object to a gift to a more distant relative. Being of the preferred class is a condition precedent to the exercise of jurisdiction by the court and not a cause of action.

Directions for service of applications under s164/1993 should take account of the value of the gift, the relationship of the donor and donee, the age of the donor and the views of the donor s immediate family. Few family members would require to be notified of a proposed gift of low value to one child, as opposed to a large value gift exclusively to one child.

Walker and Section 1A Parish of Katikati

18 Waikato Maniapoto ACMB 260, 27 September 1995. Deputy CJ Smith, Marumaru, Savage JJ

This was an appeal against an order under s338(7)/1993 appointing new trustees to a Maori reservation. The court noted that Mount Tauhara Maori Reservation (1977) 58 Taupo MB 168 and reg 7 Maori Reservations Regulations 1994 establish that, in matters relating to the administration of a reservation, trustees should consult with the beneficiaries. The rules of natural justice do not however apply to meetings to discuss proposed new trustees because there is no right or interest affected by meetings (as determined by the test in Durayappah v Fernando [1967] 2 AC 337 (PC) at 349). Appointments are made by the court. Meetings simply decide the evidence which will be put to the court. It is in court that interests are affected and natural justice and legitimate expectations issues may arise. The complicated rules of administrative law ought not to be imposed on the workings of Maori reservations. There remains however a duty to act fairly, although different consequences flow from a breach of this duty. Unfairness at a meeting will affect the weight the court will place on the evidence coming from it - see Ongarahu B and Eriapa Maru Uruamo 3 Tok ACMB 230. There was nothing on the face of the evidence from the meeting to suggest the court should inquire further, and the court cannot be put on inquiry in every case where the evidence contains no hint of discord, impropriety or lack of representation. Nor had the lower court itself acted unfairly or failed to address issues in terms of ss17(2)(a) and (e) (concerning empowerment of owners and unfairness). The present appellant had not taken the opportunity to question or oppose the evidence before the lower court. Although one trustee had not been voted on by the beneficial owners, voting is a "red herring" where the meeting has no power to decide. The trustee had been discussed and was acceptable to those 'involved with the reservation'.

Thomas and Coates and Rangiuru 2B9

9 Waiariki ACMB 47, 15 August 1995. Deputy CJ Smith, Spencer, Isaac JJ

The Maori Land Court refused an application to call a meeting of owners to consider a proposal to sell a block of land. The majority ownership were non-hapu and the proposed purchaser was thought not to be of the preferred class of alienees. In an oral judgment the court noted that, when the court is considering under s173/1993 whether to call a meeting of owners it should not, by virtue of s2/1993 (which refers to the control of Maori land being retained by Maori owners), give undue weight to the needs of Maori owners. The provisions of Part IX/1993 and the Maori Assembled Owners Regulations 1995, cl2 of which defines 'owners' to include all those with an interest, legal or equitable, in Maori land, are a special code and take precedence for the purposes of s173.

During the hearing the court also noted, although made no decision on the issue, the finding of Isaac J (in Re Nuhaka 2E3C8A2B, Maori LR September 1994 p2) that when considering whether a person falls within the preferred class of alienees, one may look beyond the immediate block and consider whether a person is a descendant of those in the original land block prior to partition. The proposed purchaser in this case was from a "well known" local Maori family.

Waitangi Tribunal

Kiwifruit Marketing Report 1995

Wai 449. 6 October 1995. Judge PJ Savage (presiding), MR Bassett, JT Kneebone, JJ Turei

This report concerned a claim that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty of Waitangi. The claimants were Marata Norman of Ngati Moko, a hapu of Tuhourangi iwi in the Bay of Plenty, and Wi Parera Te Kani of the Ngai Tukairangi hapu of the Ngai Te Rangi iwi.

Firstly, the tribunal rejected the view that the claim could be ruled out as frivolous and vexatious. Had there been a greater appreciation within the industry of the Treaty and cultural issues, this expensive claim would not have been needed. It raised important issues.

The tribunal expressed concern that the claim appeared to proceed in the name of a limited liability company and some Maori land trusts. Claims must be made by Maori only (s6(1) Treaty of Waitangi Act 1975). Claims need to be framed with care to avoid these problems. A claim may however in reality be made by Maori even though a Pakeha vehicle is chosen to advance it. In such cases the tribunal might look behind the corporate veil. In other cases Maori may only be affected as shareholders, in which case the trust or incorporation itself would be advancing the claim. Each case has different factors and the decision is a matter of balance and perception. This was a claim by Maori, but might easily have been held otherwise.

The basic claim was that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty. The evidence heard was unnecessarily wide in some areas, but established that Maori grew and traded a variety of foods prior to 1840 with the clear understanding that some would find their way overseas.

The claimants had been involved in the kiwifruit industry for some years, with financial encouragement in the early stages from the Department of Maori Affairs. After a fall in returns for nearly all growers in 1987, a referendum was held in 1988 in which over 80% of orchards voted for a marketing board to be established. Those who voted 'yes' included Marata Norman s orchard. The NZ Kiwifruit Marketing Board (NZKMB) was established in September 1988 as a result of that referendum.

Among other things, the claimants alleged they were encouraged to enter an industry with unreliable returns, were not consulted separately in 1988, that Maori kiwifruit farming required special consideration before policies were set by the NZKMB, and that current regulations allowing selling only through the board prevent the claimants exercising their rangatiratanga.

The tribunal found that the NZKMB is an agent of the Crown - although this finding was not essential to the central finding of the report. The central issue was whether the right to export is a taonga under Article 2. Pre-contact exchanges of treasures by iwi and hapu might be regarded as taonga. But it would be "an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit trade." There was insufficient evidence before the tribunal that post-contact trade in the period prior to 1840 was a taonga. There was no evidence that Maori themselves exported - although they did trade with others who onsold overseas. The right to export would if anything be an Article 3 right. But even if these findings were wrong this also did not affect the central finding.

The central finding was that the sovereignty ceded by the Treaty included the right to regulate trade. A memorandum issued by the tribunal sitting to hear the Chatham Islands claims set out the position correctly, that the Maori text of the Treaty, when examined in the light of contemporary statements, did cede sovereignty, which was a form of national controlling authority (5 October 1994, see Maori LR Oct 1994). The rangatiratanga retained is not therefore a separate sovereignty, but a right to tribal self-management. Tribunal members had differing opinions of what rangatiratanga extended to, but this claim fell outside even the broadest of those views. The regulation of trade was a legitimate act of governance or kawanatanga. The chiefs knew this, they mentioned trade as a matter for general regulation in the Declaration of Independence of 1835.

There had been sufficient consultation with Maori before the NZKMB was established, consisting of input from the Department Maori Affairs, industry wide consultation prior to 1988 and the referendum in 1988. The consultation was sufficient to the circumstances - the tribunal repeated Sir Ivor Richardson s statement in the NZ Maori Council v Attorney-General case (p683) that in some cases specific consultation may not be required where a Treaty partner has sufficient information for it to act consistently with Treaty principles. The tribunal was less certain that there had been adequate consultation since the establishment of the NZKMB. There was no evidence that policy makers had considered the special restrictions owners of multiple owned Maori land face, or the different perspectives on cultivating land which Maori have. But there was no evidence either that Maori growers had made special efforts to bring these matters to the attention of the board. The tribunal was heartened by assurances that there would be greater consultation in the future and thought that at the very least Maori growers should be actively encouraged to participate in decision making in the industry, and become more involved with marketing to other indigenous peoples.

There was no evidence that the Kiwifruit Marketing Regulations 1977 were contrary to s20 NZ Bill of Rights Act 1990 (right of minorities to enjoy their culture), as there was no evidence that Maori rights to ancestral land were being endangered or Maori culture threatened by the regulations.

The issue of whether single desk selling is superior to other forms of marketing was irrelevant to the claim, although much evidence had been heard on this point.

[ed: this is a brief report, but it makes important findings. In stating that sovereignty and national governance were ceded by Maori in 1840, the tribunal reaffirms a position it has held since the Muriwhenua Fishing Report 1988. In that report, the tribunal found that it was a legitimate exercise of sovereignty or kawanatanga to pass laws to conserve natural resources. This report extends that further, finding that passing laws for the regulation of trade is also a legitimate exercise of sovereignty.

The tribunal in this report refused to stretch Treaty principles to cover the modern kiwifruit trade. This has similarities with the finding of the Court of Appeal in Te Runanganui o Te Ika Whenua Inc [1994] 2 NZLR p25 that the Treaty does not apply to another "modern" development - the generation of electricity by the use of water power (see also however the decision in Ngai Tahu Maori Trust Board v D-G Conservation, that a modern whale watching business is "analogous to" a taonga, but only because it has some parallels with pre-Treaty fishing and shore whaling (CA 18/95, 22 September 1995 Maori LRSept 1995 p3)). Unfortunately the tribunal gives little analysis of how it arrived at this position.

This report will no doubt be greeted with dismay by those pressing for an expansive view of rangatiratanga, particularly as the tribunal has used the Declaration of Independence to reinforce its view that Maori ceded to the Crown substantial powers in 1840. That Declaration is often quoted by groups seeking to question the extent of Crown sovereignty.]

Other Jurisdictions

William Tupu Awa v Independent News Auckland Ltd

CP 152/92 HC Hamilton, 16 October 1995. Hammond J

The plaintiff alleged that he was defamed by an article in the Sunday News national newspaper that described him as a "body snatcher", and sought damages of $200,000. The plaintiff was the 'chief kaumatua' of the Ngati Whawhakia hapu of Tainui. On the death in August 1991 of the well known entertainer Billy T James (whose adoptive mother was of Ngati Whawhakia), the plaintiff travelled to the entertainer s residence and removed the body to a marae before its burial on the sacred Taupiri mountain near Turangawaewae marae, Ngaruawahia. This was contrary to the wishes of close relatives who had arranged a church service prior to transport to a marae.

Held: it is well known that Maori protocol upon death is quite different from European. In particular, the decision where a deceased is buried is important, and argument is not uncommon, the greater mana of the deceased may occasion greater debate. "The Maori way of approaching the question of burial is therefore part of a complex spiritual and metaphysical process which is intertwined with the extreme importance of recognition and acknowledgment of ancestors; and family; and the burial process is closely intertwined with land and the place from which one sprung." European style rational analysis could not do justice to the "coherent vision of an indigenous people."

What must be considered is how the "ordinary reader", purchasing the paper from a corner dairy, would view the use of the term "body snatcher". Such a person would not take a far-fetched or over refined meaning, for example, that a body had been taken in breach of Maori custom. On this "ordinary reader" test, the term "body snatcher", suggesting some immorality, was capable of being defamatory. However, a defence of justification was made out, the evidence showing, among other things, that the plaintiff was clearly not welcome when he arrived to fetch the body, and had made forcible entry to take it, and no true consent was gained from close relatives to take the body in such circumstances. A kaumatua witness for the claimant admitted that in such a situation it would have been appropriate to withdraw and speak to other kaumatua. The plaintiff s defence that Maori protocol required that he remove the body to a marae was really a misguided belief that the end justified the means. In these circumstances "body snatcher" was also fair comment on a matter of public interest.

Paki & Others v Attorney General

CP 144/90 HC Hamilton, 24 October 1995. Anderson J

The plaintiffs were trustees of Pouakani B9B Trust, and were, through Waitangi Tribunal proceedings, seeking the return of land in the Pouakani block alleged to have been wrongly taken by default on a survey agreement. In 1987 the plaintiffs bulldozed some trees on the contested land as an assertion of their claimed rights and to provoke litigation. The Department of Conservation filed proceedings for trespass and the plaintiffs responded with a notice of opposition. After discussion, the plaintiffs and the Attorney General entered an agreement in July 1987 preserving the position of both parties pending the outcome of Waitangi Tribunal and Maori Land Court investigations of title to the land. In that agreement the Crown agreed to indemnify the trustees for losses if they were successful as to land ownership and boundaries issues. The Waitangi Tribunal issued its report, largely vindicating the trustees, but not before they had incurred $1.23 million in expenses. The trustees issued proceedings seeking payment of this sum. The Crown responded in September 1990 with a $650,000 offer, provided the claimants accepted it as a first charge against Crown liability, if any should be found or acknowledged. This offer was accepted. The trustees amended their proceedings and now sought the balance of the $1.23 million on the basis that it was owed under the terms of the July 1987 agreement. This case concerned the effect of the September 1990 agreement.

Held: the September 1990 agreement was not an acknowledgement of liability by the Crown. The Crown had simply agreed that, should it subsequently acknowledge liability over the land issues, or have judgment entered against it, it was entitled to be credited with $650,000 against those liabilities. The agreement of September 1990 could not be treated as a mere repayment of expenses, but was actually a part-settlement of the claim. Its worth would be known when the Crown acknowledged liability, or when judgment was entered against the Crown. Conceivably, the plaintiffs might in the future get judgment against the Crown, but the practical outcome might be no more than an accounting entry. The parties needed to consider their future tactics in light of this situation.

Whittaker v Maori Land Court of New Zealand

M2336/91 HC Auckland, 9 October 1995. Temm J

A woman sought an order under s452 Maori Affairs Act 1953 to rectify a succession order of the Maori Land Court made in 1943. She alleged that the MLC had at that time failed to award land to her mother, who was adopted. The Deputy Chief Judge turned down the s452 application. There being no right of appeal (s452(7)), the woman sought judicial review of the decision of the Deputy Chief Judge.

Held: the adoption occurred in 1892 and was according to Maori custom. In Hineiti Rirerire Arani v Public Trustee [1920] AC 198 the Privy Council held that, after the passing of the Adoption of Children Act 1895, Maori children could be adopted either under that Act or continue to be adopted by Maori custom. So the adoptee had full legal rights as if she were a child born in wedlock. After 1901 however, Maori customary adoptions had to be registered in the MLC for adopted children to succeed to their adoptive parents estate. However in 1909, in a radical change, s161(1) Native Land Act 1909 provided that all past and future Maori customary adoptions were without legal effect. Adoptions previously registered under the 1901 legislation were however saved. These provisions were considered in Piripi v Dix[1918] NZLR 691. The adoption in this case was not registered and was therefore ineffective from 31 March 1910 when the 1909 legislation came into effect. In December 1927 the position was completely reversed. Maori customary adoptions made prior to 31 March 1902 were deemed to be of full legal effect (s5 Native Land Amendment and Native Land Claims Adjustment Act 1927). However, the adopted child died in November 1927, and so the adoption was not saved by the 1927 legislation. The adoptive parent did not die till 1943. In the interim, in 1930, the 1927 amendment was reversed, and the position at 1910 reinstated, and continued in the Native Land Act 1931 (s202). This was the law in force when the adoptive parent died. Consequently, there was no legal interest of the adopted child in the adoptive parent s estate and the Deputy Chief Judge had correctly dismissed the s452 application.

The court also noted that the privative clause in s64/1953 effectively prevented it overturning the Deputy Chief Judge s decision in any event, as no error in law, unfairness, unreasonableness or ultra vires arguments were advanced (see O Regan v Lousich [1995] 2 NZLR 620).

As to costs, it was understandable that the plaintiffs should bring this action. Section 98/1993 makes special legal aid available. The power to award costs under that provision is however confined to the MLC. The court therefore noted a figure it thought the plaintiffs ought to be able to claim as expenses, and left it to them to make application under s98.

Hauraki Maori Trust Board & Others v Waitangi Tribunal

CP 171/95 & Ors HC Wellington, 14 September 1995. Ellis J

This was an application to recall parts of a judgment (Maori LR August 1995 p3) which decided that the Treaty of Waitangi Fisheries Commission had not yet adopted a policy for the distribution of pre-settlement assets from the Sealord settlement and consequently, as a matter of law, the Waitangi Tribunal lacked jurisdiction to hear a claim until the commission adopted a policy. The recall power (r540 High Court Rules) gives the court discretion to perfect judgments. It was argued that the court could usefully elaborate on comments made in the judgment to further clarify its intention, that it had failed to take into account s6(1)(d) Treaty of Waitangi Act 1975 (concerning actions, as opposed to policies, of the Crown), and had failed to properly address the issue of the policy behind the interim allocation of fish quota.

Held: the application should not be granted, as the court had, before making judgment, considered the matters for which recall was sought, but had deliberately refrained from comment; elaboration on the judgment would possibly require the hearing of further evidence; and the issues on which recall was sought were precisely those the subject of appeals to the Court of Appeal.

The court indicated that it was aware that its earlier judgment meant that, under the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Waitangi Tribunal might only have 30 days to hold a hearing about the distribution policy from the time it is announced until it becomes final.

[ed: in another fisheries judgment, on 12 October the High Court granted an interim injunction stopping proposed major cuts in snapper quota in the northern fishery (NZ Federation of Commercial Fishermen & others v Minister of Fisheries & Another CP 237/95 HC Wellington, Doogue J). Area 1 Maori Consortium and Ngapuhi Fisheries Ltd are plaintiffs in those proceedings.]

General

Protection mechanisms for surplus Crown property

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

The Government has increased its ability to retain Crown lands surplus to requirements for use in future claim settlements.

Claimants will now only need to satisfy the Crown that surplus land is of cultural and historical importance and required for future development, or that is has special features making it "non- substitutable". The Crown will then decide whether to retain the land on the basis of the value of other properties already retained, progress being made on negotiations and affordability. These new criteria will be applied to properties passed for sale under the old mechanism but not yet sold. Over 100 properties will be immediately available for retention under the amended scheme.

Properties will be retained in new regional land banks. $150 million has been set aside to operate these banks. The regions are based on 14 of the research districts the Waitangi Tribunal has established for its Rangahaua Whanui project. The Ngai Tahu rohe is excluded by agreement. All surplus Crown lands within the boundaries of areas confiscated last century remain separately protected for possible future return to claimants.

[ed: in light of these announcements, the Waitangi Tribunal has vacated the fixture for an urgent hearing which was scheduled for 27 November on claim Wai 518, which is concerned with the inadequacies of the system for retaining surplus Crown properties (Wai 518, doc 2.27, 21 November 1995).]

Extra resources for the Waitangi Tribunal

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

An extra $500,000 will be allocated to the tribunal over the next 2 years. $400,000 will be used towards the completion of the Rangahaua Whanui project, which will provide research reports on the historical background to claims in 15 districts covering the country, as well as reports on important common themes eg public works takings, rating, the operation of the land court. $100,000 will go towards the writing of final tribunal reports on claims where hearings have been completed.

Briefs

 In "Maori and Banking in NZ: recent research and a new survey of self-employed Maori" (M Fox, G Walker, S Francis, Journal of Banking and Finance Law and Practice 6(3) September 1995 p239) the authors present survey responses from 72 of an estimated 11,479 self employed Maori in NZ. The article also reviews prior reports, the Review of the Involvement of the Financial Services Sector in Banking Maori (Te Puni Kokiri, Nov 1993) and Maori Women in Business (Min of Women s Affairs, Jan 1991).

 Philip Pryke has been reappointed to the Treaty of Waitangi Fisheries Commission (Minister of Maori Affairs, 16 October 1995).

 William David Baragwanath QC, a barrister who has frequently acted on Maori issues before the Court of Appeal, High Court and Waitangi Tribunal, has been appointed a temporary judge of the High Court for 12 months from 15 November 1995 (NZ Gazette 9 November 1995).

 Two regulations have been enacted to further finalise the Waikato settlement. The Waikato Raupatu Claims Settlement Act Commencement Order 1995 (1995/247 - gives commencement dates for various parts of the Act) and Waikato Claims Settlement Act Second Schedule Order 1995 (1995/248 - adds several pieces of land to the list of those where resumptive memorials are to remain on the land).

Annual index

Māori Law Review Index December 1994 to November 1995

Maori Land Court and Appellate Court

In re Proprietors of Te Uranga B2 Block

Aotea MB, 19 October. 1995 Savage J

An incorporation applied under s358/1993 for an order that 401 hectares of land be reclassified as investment land. Section 358 provides that incorporations may apply to have lands acquired after their establishment reclassified as investment lands, and their status changed to general land, freeing them from the restrictions of Te Ture Whenua Maori Act 1993. At the suggestion of the court when the application was first raised, the incorporation passed a special resolution supporting the application by roughly 2 shares to one. The incorporation also applied to have its objects made unlimited under s358A/1993.

Held: under the 1993 Act incorporation land is no longer owned by an incorporation except as trustee, the land belonging to the beneficial owners who are shareholders. The effect of an order under s358 is that the investment land is removed from the trust and the incorporation becomes the sole owner, the beneficial owners lose their interest and merely retain incorporation shares in relation to that land. The committee of management of the incorporation may then alienate the land as they see fit. This is a serious step as it takes away rights from owners, their descendants and members of the preferred classes of alienees. Prima facie such an order runs counter to the objects of the 1993 Act but can be justified as the land is acquired after the formation of the incorporation and is not taonga tuku iho, although the owners may still have important links with it. Unfortunately there was no clear statement here of what the land meant to the owners.

Neither the resolution, the accompanying notice and statements explaining the resolution, or minutes of the meeting to consider the special resolution indicated that the owners had been made aware that they had rights which would be extinguished by a s358 order and that the land would cease to be Maori land. The court was reluctant to make an order where those two points had not been made clear, and there was not "substantial support well in excess of the majority" in favour of the application. This was a situation quite foreign to the general law of Aotearoa, allowing an owner of an interest in land to have that interest taken, perhaps even against their express wishes. The incorporation is kaitiaki for the owners, and the court will not change the status of Maori land or take away owners interests lightly. A majority voting for the conversion to investment land is significant but the rights of the minority are also important (s17(2)(d)/1993). Leave was given to make a further application after a fresh approach had been made to the owners.

As to the application to have the objects of the incorporation made unlimited, Parliament had not intended that incorporations established before the 1993 Act should automatically have their objects made unlimited, otherwise it would not have given a discretion to the court. The incorporation was well managed and financially sound. It was keen to use its assets as a base for financial ventures off the incorporation lands. Accordingly, the court ordered that the objects be redefined to conform with s353(a)-(b)/1993 but subject to the limitation that no activity conducted off the corpus land should involve the pledging or mortgaging of that land or otherwise encumbering it for the purposes of security.

Waitangi Tribunal

Turangi Township Report 1995

11 September 1995. GS Orr (presiding officer), IH Kawharu, HR Young, EM Stokes

Background

In 1963 the Crown had developed detailed plans for the Tongariro Power Development scheme, involving the collection of waters from catchments in the central plateau region of the North Island and the construction of 2 power stations, one being at Tokaanu on the shores of Lake Taupo. The Ngati Turangitukua hapu of Ngati Tuwharetoa owned lands in this area. Four sites were identified by Crown officials for a town to accommodate workers for the scheme. While only a temporary town was required, the Crown preferred to build a permanent township, and favoured a site on Maori owned land over other sites on Crown owned land.

In May 1964 a first meeting was held with the owners and the township proposal was outlined. Undertakings were given that full compensation would be provided for lands taken. The proposal was endorsed in principle by the meeting. A further meeting with owners (as opposed to meetings with individuals and a liaison committee) was held on 20 September 1964. The following day Cabinet approved the construction of the TPD and the compulsory taking of 900 acres and lease of 200 acres of Ngati Turangitukua land. Ten days later bulldozers began entering the township site, operating on tight deadlines to develop the area.

Implied power to enter the land was provided by Order in Council under s311 Public Works Act 1928 giving authority to construct all necessary works in connection with the utilization of water power and with no provision for prior notice or objections. In December 1964 the Turangi Township Act provided for a form of local government for the township, but without specific representation for Maori owners (although Maori practically did participate), and in a section added to cover legal concerns (s11), empowered the Crown to take by proclamation, again without notice or right of objection, 1540 acres and then sell it privately for the purpose of a permanent town. In 1965 the first gazette notices taking the land appeared.

Tribunal findings

It was doubtful whether the Crown had the legal authority to enter onto Maori land under s311 Public Works Act 1928 or s11 of the Turangi Township Act 1964 (which referred to s311) before lands were taken by proclamation, and prior notification of entry may have been a legal requirement (as opposed to some verbal then written notification which was voluntarily given). The engineering work on the ground proceeded far ahead of legal and clerical work required to complete procedures for Crown proclamations taking land or to begin negotiations on compensation for the owners.

Many of the more than 20 undertakings given by the Crown at the meetings of owners were not honoured either in part or in whole. Although the Crown undertook that no more than 800-1000 acres would be taken, 1665 acres were eventually taken. An assurance that 186 acres required for industrial development would be leased and not acquired was broken. There was a failure "in numerous instances" to protect waahi tapu. There had also been problems with a water supply reserve, water reticulation to some dwellings, river development works and some degradation of waterways and fishing areas.

The sovereignty gained by the Crown under article 1 is limited by the guarantee of rangatiratanga and other matters under article 2. This limited sovereignty does not create a constitutional problem, as few if any western governments enjoy unqualified sovereign power (membership of international organisations being one example). The Crown may override article 2 guarantees only in exceptional circumstances and as a last resort in the national interest. The Ngai Tahu Ancillary Claims Report 1995 expressed the provisional view that the power of compulsory acquisition of Maori land for a public work be exercised only in exceptional circumstances and as last resort in the national interest. A lesser test is insufficient. Court of Appeal comments that Treaty principles cannot place "unreasonable restrictions" on the right of an elected government to follow its policy (NZ Maori Council case) do not justify a lesser test. The Crown obligation according to the Court of Appeal is 'active protection to the fullest extent reasonably practicable'. While conservation may be one of these exceptional circumstances, there is a critical difference between legislation providing for the control and management of resources and that providing for their expropriation.

The tribunal rejected a Crown contention that it apply other than present Treaty standards to actions in the past. It also could find no evidence to support a Crown contention that the claimants had revised over the intervening years the value (apart from inflationary adjustment) they placed on land and waahi tapu. Nor did it find helpful the submission that the onus of proof lay entirely on the claimants. The tribunal is not a court but a commission of inquiry and looks to all parties to assist in completing its inquiry. Nor should contemporary documentation be given automatic preference over the personal recollections of those involved.

The provisions of the 'draconian' 1928 and 1964 Acts were tantamount to a "unilateral abrogation" of article 2 rights in that they allowed Maori land to be compulsorily acquired, and without a legal requirement of prior consultation or notice. Although the Public works Act 1981 amends some of these matters, it still fails to acknowledge Crowns obligations as a partner under the Treaty. The Crown was under an obligation to ensure no other land was available for the township, give consideration to gaining a leasehold rather than freehold, and ensure that there was provision for the return of any land no longer required for the public work. Consequently, there had been a failure:

- to adequately investigate alternative sites or assess the likely social or environmental impact;

- to give adequate consideration to the desirability of protecting rangatiratanga by acquiring the leasehold rather than the freehold of lands for the township and water supply reserve;

- to make provision in the 1928 and 1964 acts for the return of surplus lands at least cost and inconvenience to former Maori owners. While the 1981 Act makes provision for an offer back, it is inconsistent with Treaty principles in that it allows the Crown in certain circumstances to dispense with an offer back, without consultation with the former owners, and to set the offer back at market rates, without taking full account of the detriment of the original taking. It also allows the Crown to retain the full profit from the sale;

- the Crown failed to consult fully with the owners about the land to be taken for the township before it was taken;

- apart from a few notable exceptions, it failed, during construction of the township, to treat Ngati Turangitukua with the respect due to them as tangata whenua. In particular there was a failure to recognise and protect the sensibilities of kaumatua;

- there was a failure to keep Turangitukua properly informed about government intentions and actions as the township was developed;

- there was also a failure to honour undertakings that waahi tapu would be protected, by the adoption of a reactive rather than proactive approach to protection;

- there was a failure to act upon the high importance owners placed on conservation matters, leading to some degradation of waterways and fishing, and increased flooding;

- inadequate consultation led to a failure to mitigate the adverse social repercussions and trauma of the development.

The 1928 Act failed to provide adequate compensation for the takings. Having chosen to take ancestral land and disperse claimants from it, there was a heavy obligation on the Crown to treat the people generously. Because of poor consultation, Turangitukua could not be said to have been willing sellers. There was also a failure to consider preserving a sufficient economic base of land for Turangitukua.

Recommendations

The tribunal endorsed the view of the Ngai Tahu Ancillary Claims Report 1995 that before any compulsory acquisition of Maori land can occur, Treaty principles require that:

- owners are given adequate notice and the Crown must seek to obtain informed consent by full consultation;

- if the owners are unwilling to sell, the compulsory acquisition power might be used only in exceptional circumstances and as a last resort in the national interest;

- a lease or interest less than the freehold should be sought, and on terms to be agreed or determined by arbitration. If it is felt that the freehold must be acquired, that question should be determined by an independent body.

This tribunal added the requirement that the Crown not seek Maori land without first ensuring no other suitable land is available.

The Public Works Act 1981 should be amended to take account of these requirements, and it should also provide that for lands taken and later found to be surplus to requirements:

- the Maori owners be consulted where there is any intention not to offer the land back to the former owners;

- any offer back should be at the earliest possible opportunity and at least cost and inconvenience to the former owners;

- when setting an offer back price, provision should be made to; share with the former owners the increased value arising from development of the land, have regard to the means of the former owners to take up the offer, have regard to circumstances surrounding the original compulsory acquisition, and the special problems of multiple ownership;

- an offer back to a wider hapu or tribal group to which the former owners belong should be possible if the former owners are unable or unwilling to purchase;

The 1981 Act should also be amended to provide that the Act be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi.

As to the Turangitukua grievances, the tribunal recommended direct negotiation with the Crown, with the possibility of a further hearing on remedies if either or both of the parties request it.

[ed: most previous tribunal reports have dealt with the actions of persons long dead, or with events in the immediate past. This report deals with events a little over 30 years ago and many of the persons criticised in the report are still alive. The tribunal did not hear directly from the government officials involved at the time, and the report has been criticised in the media on that basis.

This is the second report in 1995 to express strong views about the limits which ought to be placed on compulsory acquisition of Maori land. This is linked to a notion which the report develops of 'sovereignty limited by the Treaty'. The tribunal says that while there is an obvious case for the Crown to override article 2 guarantees in order to conserve endangered species and limited natural resources, interference with rangatiratanga over Maori land for social and economic planning purposes is a different matter, and moreover, a constitutional one. The implications of this are far reaching.]

New Waitangi Tribunal member

John (Hone Te Kauru) Clarke has been appointed a member of the Waitangi Tribunal. He has Ngati Porou and Nga Puhi tribal affiliations and is 53 years of age. He was the Race Relations Conciliator from 1992-1995. He has also been the manager of Human Resources in the Department of Justice, Chief Executive of Manatu Maori from 1989 to 1991 and principal of Wellington High School and Community Institute from 1986 to 1989. In 1991 he was a Crown negotiator in discussions to settle the Ngai Tahu claim.

Memorandum following 8th hearing of Ngati Awa and other claims of the eastern Bay of Plenty

Wai 46 & Others, 27 September 1995. GS Orr for the tribunal

In this memorandum the tribunal considered whether it had power to make findings on the legality of Crown actions taken under the NZ Settlements Act 1863 confiscating large areas of Maori land in the Bay of Plenty. The tribunal determined that it does have jurisdiction, in appropriate circumstances, to determine questions of the legality of Crown action, and this included actions under the 1863 legislation relating to these claims.

The tribunal also made comments about its powers under s6(3) to consider remedies for well founded claims. It noted the preliminary view of some members that this includes the ability to consider the present and future needs of tribes rather than simply making an accounting for past loss. Also, assessing past loss solely on the basis of those actually in occupation of land at the time it was expropriated may fail to take into account other important values of Maori culture eg associational interests of those not in occupation.

Other Jurisdictions

Te Runanga O Ngai Tahu Ltd v Attorney-General & Others

CP 199/95 HC Wellington, 3 October 1995. Doogue J

The plaintiff sought an interim order by way of declaration that the Crown and Land Corporation agencies not permit any change in the present status of certain lands within the Ngai Tahu rohe. The basic concern was that no Crown land owned by a Crown agency such as a State-owned Enterprise (SOE) should pass from Crown control or ownership until the principal Ngai Tahu claim is settled. Discussions between the parties had reduced the properties concerned to those where there were no current offers to buy the lands.

Held: the Court of Appeal decision in the NZ Maori Council case ([1987] 1 NZLR 641) resulted in s27 State-Owned Enterprises Act 1986 being amended to provide that the existence of any claim under s6 Treaty of Waitangi Act 1975 does not prevent the transfer of land out of Crown or SOE hands, and ss27A-27D provided for titles to such lands to carry memorials providing for compulsory return to Maori claimants if the Waitangi Tribunal recommended it. The critical issue was whether this statutory regime sufficiently protected the plaintiff s interests pending determination of the substantive proceeding and the plaintiff s land claims.

The plaintiffs argued that various problems of a legal, political and human nature could arise which would not allow the protective mechanism of ss27A-D to operate in the simple way the Crown contended. A third party land owner could seek to avoid an application for compulsory return. A purchaser of land, because of the existence of the memorial, could run it down rather than improve it. It was not clear whether vacant possession would pass on resumption of the land by Maori where a third party purchaser had granted a lease either long-term or in perpetuity. Also, where many properties were involved, Ngai Tahu might have considerable difficulty persuading the Waitangi Tribunal to make all the necessary orders for return. Litigation in this respect was pending (CP 215/95 Wellington Registry see Maori LR Sept 1995). It was also argued that ss27A-D were passed with the expectation that claims would be dealt with promptly, the failure of the Crown to sufficiently fund the tribunal meant there was no certainty the plaintiff s claim would be dealt with in the reasonably forseeable future.

This was an application for interim relief. The balance favoured the plaintiffs, who arguably could be prejudiced through a failure to make the interim order sought. The status quo was in favour of a situation where the Landcorp lands remained not subject to sale. The presence of a land bank in favour of Ngai Tahu was not relevant. Once land was sold by Landcorp it was outside the immediate control of the Crown who would have to resort to the statutory scheme and powers under the Public Works Act 1981 to resume it, which made future problems 'almost inevitable'. The longer the delays in dealing with the plaintiff's claim the greater these inevitable problems would become.

An undertaking by the plaintiffs as to damages would not be required in respect of the interim order as, for example, the parties might in the meantime agree to alter the parcels of land the subject of the interim order.

[ed: although affecting only 37 properties in the South Island, this is a significant decision, suggesting that the court might, at the substantive hearing, accept that practical difficulties have overwhelmed the original intent of the resumptive scheme in some regions.]

Faulkner v Tauranga District Council

AP 29/94, 8 September 1995. Blanchard J

The appellant held a lease over just over 12.5 hectares of land vested in a s438/1953 trust. The district council successfully sued for rates. The appellant appealed on the basis that the land was Maori customary land, which is exempt from rates under s182(1) Rating Powers Act 1988.

Held: the land at issue had been continuously occupied for centuries, and the Ngaiterangi iwi had title by right of conquest prior to the Treaty of Waitangi. Ngaiterangi fought alongside Kingitanga followers at Tauranga and surrendered to the Crown in 1864. At a meeting with the Governor in August 1864 the mana or authority to decide the fate of the land was placed at the discretion of the Governor. He exercised that discretion by agreeing with the iwi not to confiscate more than one quarter of Ngaiterangi's land. An Order in Council in May 1865 confiscated Ngaiterangi lands under the NZ Settlements Act 1863. The Tauranga District Lands Act 1867 validated the confiscation and mentioned the agreement with the iwi, leaving it to the Governor to set apart lands for Ngaiterangi within the confiscation after "due inquiry". It was not until 1885 however that a Native Land Court judge, HW Brabant, acting as Commissioner of Tauranga Lands, issued a certificate of title for a block, Ohuki No 1, including the land now in dispute. In 1888 Brabant, acting now as a Native Land Court judge, issued a succession order for one of the former owners in Ohuki No 1 under the Native Land Court Act 1886.

The Native Land Court Act 1894 provided that "customary land" included all land held under Maori customs and usages whose title had been ascertained by the court or "other duly-constituted authority", and that all such land was held in fee simple and subject to the Land Transfer Act. This position was preserved by subsequent legislation in 1909, 1931 and 1953.

The land block the subject of this case was created by partition orders affecting Ohuki No 1 in 1914 and 1921. The s438 trust order made in 1972 described the land as Maori freehold land. In 1986 the District Land Registrar issued a title stating that the trustees held a fee simple estate in the land.

While the Rating Powers Act 1988 does not define Maori customary land, it is unlikely Parliament intended that phrase when used in the Act to mean other than the term as defined in the then Maori Affairs Act 1953 and now Te Ture Whenua Maori 1993 (the difference in the wording of the definition between the 1953 and 1993 Acts does not appear to be significant).

Customary land in the 1953 Act is land the ultimate or allodial title of which is, as with all NZ land, vested in the Crown, but in respect of which Maori continue to have a customary title recognised by the common law and confirmed by Article 2 of the Treaty of Waitangi - R v Symonds (1847) NZPCC 387 and Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. It was noted however that Crown land as defined under the Land Act 1948 specifically excludes Maori customary land. Customary or aboriginal title is a burden on the Crown s feudal title which can be extinguished only by means of a deliberate Act authorised by law and unambiguously directed towards that end. Unless there is specific statutory provision, customary title remains even where the Executive grants land to someone other than the customary owners, Nireaha Tamaki v Baker (1901) NZPCC 37. Customary title does not disappear by a side wind. Extinguishment must be plainly intended, as Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, 64 and Te Weehi demonstrate. But neither of these cases dealt with the effect on customary title where land is brought under the Torrens system and an indefeasible fee simple title issued.

Neither the differing decisions of the Privy Council in Kapua Haimona [1913] AC 761 and Te Paea v Tareha [1902] AC 56 as to the effect of proclamations and orders in council under the NZ Settlements Act 1863, nor the fact that the Order in Council of May 1865 did not refer to land being "taken", nor the issue of a commissioner's certificate rather than a Crown grant, could defeat the clear words of the Tauranga District Lands Act 1867 that the whole of the Tauranga District was taken for settlement. Consequently the customary title was extinguished. When Ngaiterangi had the Ohuki lands later restored to them the commissioner's certificate was equivalent to an order of the Native Land Court. The Native Land Court Act 1894 also confirmed that customary land included lands where the owners had been ascertained by a duly constituted authority, in this case the commissioner, and placed them under the Land Transfer Act as fee simple estates. While In re Rotomahana and Taheke Blocks (1909) 24 NZLR 203 did suggest that some provisions of the 1894 Act were purely registrarial in effect, it did not contradict the above conclusion. This was confirmed in the case of A-G v Ruritana (1909) 24 NZLR 228.

Where land is held by way of an estate in fee simple, especially where title is registered under the Land Transfer Act, the title must be regarded as one derived from the Crown. It is impossible to say that such a title is merely Crown recognised and continues, so far as the fee simple owners are concerned, to be held according to custom. This is supported by comments in Te Paea v Tareha p65. This does not however prevent the registered proprietors holding the land beneficially for an iwi or a section of an iwi. The rights of the beneficial owners may continue to be governed by custom. Comments made by Sir John Salmond in the introduction to the Native Land Act 1909 about the intent of the Native Land Court Acts of 1886 and 1894 also supported this conclusion.

Accordingly, the council was entitled to recover rates from the land.

[ed: the Rating Powers Act 1988 also provides at s182 that on the recommendation of the Maori Land Court and with the consent of the relevant district council, the Governor-General may exempt Maori freehold land from rates. Over 1500 hectares in the Ruapehu district have recently been exempted under this provision - see NZ Gazette 5 October 1995 p3511.]

General

Waikato Raupatu Claims Settlement Act 1995

19 October 1995

Changes by the Justice and Law Reform Select Committee and government before the final reading included:

- changing references to "Waikato-Tainui" to "Waikato";

- insertion of a Maori translation of the preamble;

- an amended reference to the Sim Commission;

- including 2 further claims in the list of claims covered by the settlement, and adding considerably to the list of claims not affected by the settlement most notably claims of Hauraki groups;

- tightening up of references to Hauraki interests in Maramarua lands covered by the settlement to better secure those interests;

- requiring the Tainui Maori Trust Board to file final accounts before dissolution;

- adding several properties to the list of properties within the settlement area where resumptive memorials will remain on the title;

- adding provisions amending the Public Works Act 1981 to allow for solatium or consolation payments to be made to persons who, but for Waitangi Tribunal recommendations or legislation, would have been entitled to an offer back of land compulsorily taken. In determining the amount of any solatium payment the Land Valuation Tribunal is to have regard to, among other things, the likelihood of the former owner being financially able to accept an offer back and the degree of attachment the former owner has to the land, in particular by having been associated with it for a long time.

[ed: pressure from several farmers who would have been entitled to an offer back resulted in the amendments to the Public Works Act. These amendments are not limited to the Tainui settlement but apply toall situations where the Waitangi Tribunal or Parliament orders the return to Maori of land taken under the Public Works Act. It is ironic to see that the owners' attachment to the land must be taken into account in determining the value of any solatium payment. This amendment was forced on the government because it did not otherwise have the majority to pass the measure. The select committee rejected a submission from the Tainui Maori Trust Board to have marginal strips excluded from the settlement. The Queen will give her royal assent to the legislation when she visits in November.]

Reserves and Other Lands Disposal Act 1995

No 54. 3 October 1995

Sections 6 to 12 of this Act provide for the creation and operation of a Ngati Whakaue Education Endowment Trust Board to manage former Ngati Whakaue lands that have for many years been an education endowment for the benefit of local high schools. Ngati Whakaue representatives (from the Pukeroa-Oruawhata trust) have 6 positions on the 11 member board.

[ed: the first part of this legislation, settling the Hauai land claim, is noted in the Maori LR Sept 1995]

Second Interim Report of the Maori Affairs Committee (Maori Education Authority)

I-9C. Hon KT Wetere (chair), P Gardiner, T H‰nare, M Laws, Hon G Lee, S Lee, Hon R McLay, T Ryall, Hon TWM Tirikatene-Sullivan

In April 1989 the Maori Affairs Select Committee resolved to conduct an inquiry into Maori education. The major recommendation of this report is that Te Puni Kokiri in consultation with the Ministry of Education and other groups co-ordinate an investigation into the benefits of developing a Maori education authority. In its first report the committee dealt with resources for promotion of Te Reo and recommended removing the cap on Maori Language Factor Funding and greater input from the Maori community into the development and implementation of accountability and monitoring mechanisms for this funding (I9A).

Hepatitis B Screening Programme for Maori. Report of the Maori Affairs Committee

I-9B. Hon KT Wetere (chair), P Gardiner,T Henare, M Laws, Hon G Lee, S Lee, Hon R McLay, T Ryall, Hon TWM Tirikatene-Sullivan

Of 40,000 carriers of this virus, 18,000 are estimated to be Maori. Complications from it can be fatal. This report records a sorry and cautionary tale of inaction over the problem. Under the Health and Disability Services Act 1993, regional health authorities (RHAs) are required to consult with the community and take the special needs of Maori into account. This very requirement appears to have allowed the RHAs, the Ministry of Health and Te Puni Kokiri to disregard mounting concern expressed by the Hepatitis Foundation that a screening programme was urgently required and insist that nothing more than community education programmes about the disease were needed. The select committee recommended, among other matters, that a screening programme be established as soon as practicably possible.

Focus on Employment. The Government's response to the Employment Task Force and the Multi-Party Group Memorandum of Understanding

19 October 1995

Apart from receiving improved assistance through the extension of "Job Action" and "Youth Action" schemes (providing intensive personal assistance to long term and youth unemployed) and by changed benefit abatement rates for those on the Domestic Purposes Benefit, the government has developed a Maori Labour Market Strategy. This combines immediate measures such as re-establishment of the Wahine Pakiri scheme (providing business training to Maori women) and limited subsidies to communities to undertake development of Maori-owned assets, with education initiatives to reduce unemployment over the longer term.

Draft Minerals Programmes

Energy & Resources Division Ministry of Commerce. September 1995

Separate draft programmes have been publicly notified (30 September 1995) for Coal, Industrial Rocks and Building Stones, and Metallic and Non-Metallic Minerals, pursuant to s14 Crown Minerals Act 1991. All 3 draft programmes, in accordance with s4/1991 (principles of the Treaty be taken into account when powers are exercised) provide that consultation occur in the preparation of each minerals programme, and before any prospecting, exploration or mining permits are issued or extended. Mount Taranaki and associated Pouakai, Pukeiti and Kaitake ranges are excluded from the programmes in recognition of their importance to Maori. The draft programme for Metallic and Non-Metallic Minerals notes the government policy that in view of ongoing discussions to settle Ngai Tahu claims, no permits will be available for pounamu. Consultation hui have already been held over these draft programmes. An iwi discussion document on the programmes is available on request. Submissions are required before 27 November 1995.

[ed: the Treaty principles proposed here are essentially the same as those in the Minerals Programme for Petroleum which was finalised in January 1995, see Maori LR May 1994 & March 1995.]

Annual index

Māori Law Review Index December 1994 to November 1995

Time for a review?

In February 1995, the Ngai Tahu claimants, frustrated with the lack of progress in negotiations with the Crown over settlement of their land claims, asked the Waitangi Tribunal for an early fixture in the hope that the tribunal would make binding recommendations to government for the return of Crown forest lands to Ngai Tahu. The chairperson of the tribunal turned down this and a subsequent request concerning state owned enterprise lands, on the basis that the tribunal had limited resources, and Ngai Tahu hearings had already consumed a fair proportion of them.

In response, the Ngai Tahu claimants have filed a High Court action attacking the chairperson s ruling, criticising his decisions on the allocation of Tribunal resources and the move away from hearing claims in sequence. They seek a declaration that no further fixtures be made by the tribunal until the High Court proceedings are resolved.

This episode highlights the intolerable position the Waitangi Tribunal has found itself in for lack of a full public review of its process since 1975. Regular public reviews are a statutory requirement for land claim tribunals in Australia, and help to increase the efficiency and fairness of the work of those tribunals and maintain public faith in them.

The approach to review in New Zealand is piecemeal. As the government seeks public submissions on the Treaty settlement package, which includes some proposed amendments to legislation governing the tribunal, it is considering an internal discussion paper on changes to the tribunal and is adjusting various other matters in the settlement process through a series of Cabinet papers (nga korero o te waSeptember 1995). These efforts may be worthwhile, but it is difficult, given this piecemeal approach, for the public or Maori to be confident that that is the case.

In an independent report the Auditor-General has highlighted this problem (reviewed under "General" below). He notes that, until his report, there has been no comprehensive account of how Treaty claims are settled, which agencies are involved and for what purposes, what costs are incurred, and what results have been achieved. He concludes that "only a limited number of people within government, or outside of it, have a good understanding of these matters". He makes a number of recommendations which would allow progress in hearing and settling claims to be independently and publicly measured. This is surely the best way of maintaining public and Maori faith with the process.

Maori Land Court and Appellate Court

In Re Rotoma No 1 Incorporation

241 Rotorua MB 223, 4 September 1995, Savage J

An incorporation passed a special resolution providing that the committee of management in its discretion enter into several leases in excess of 21 years on terms and conditions set by the committee. A copy was filed with the court as required by Reg 4(4) Maori Incorporations Constitution Regulations 1994. The court questioned whether the special resolution complied with s254(1)/1993 which provides that a Maori incorporation may only grant a lease over Maori freehold land vested in it for a term of more than 21 years "pursuant to a special resolution authorising ... the grant of the lease."

Held: the resolution had in effect delegated the power of approval of each lease to the committee of management. Under the 1993 Act, Maori incorporations no longer absolutely own the land upon which they operate, and are now trustees of it for the beneficial owners who have a direct interest in it as Maori freehold land. Section 254, new to the 1993 Act, reflects this change, by limiting the powers of alienation of the committee of management and ensuring owners are fully informed of decisions in relation to the land. This is also in accord with the Long Title of the Act and interpretation provisions of s2(2)/1993.

The argument that the words "the lease" in s254(1) do not refer to a particular lease was rejected. Such an interpretation would potentially enable a committee of management by a single special resolution to enter a whole series of leasing transactions over hundreds of years until revoked by another special resolution. An orthodox approach to statutory interpretation meant that the lease referred to the lease in contemplation at the time a special resolution was passed (R v Gallagher [1993] 1 NZLR 659 followed where the words "the trial" were considered).

Sensible use of the powers under the Maori Incorporations Constitution Regulations 1994 can make leasing procedures flexible. Matters such as the notice to be given before leasing need not be expensive and can be fixed by a special resolution under Reg 3(3). This was not the occasion for the court to dictate the exact form of notice, but the court would expect notice to refer to the general form of lease and the proposed resolution as being available for inspection at the office of the incorporation. It would be expected that the notice would inform owners of the proposed tenant's name, term of lease, rental to be paid and review provisions. What was important was that shareholders be given a proper opportunity to make a decision and take part in decision making if they so wished. Accordingly, an order was made under s280(6)(e) for the incorporation to lease in accordance with the judgment.

[ed: the court noted that s254 had been considered in Re Proprietors of Mangakino Township Inc 66 Taupo MB 235, 3 March 1995 but that decision was not relevant to this case.]

Waitangi Tribunal

Surplus lands within the Turanganui A Kiwa region

Wai 518, 15 September 1995. Deputy CJ Smith

SJ Pardoe and Te Runanga o Turanganui a Kiwa sought an urgent hearing of their claim which alleges that certain protective mechanisms which the Crown has established to check with Maori if they have claims over surplus Crown lands before they are disposed of by sale, are inadequate to protect Maori interests in terms of the Treaty. The claim concerned lands now surplus to the Crown in Gisborne City and the wider Gisborne area which might be capable of return to the claimants should their Treaty claims be proved valid. However a considerable number of claimants joined these proceedings to expand the matter to cover all Crown surplus lands.

After a telephone judicial conference the tribunal granted urgency. Figures showed that very little land had been removed from sale despite many Maori applications, indicating that "the present policy falls markedly short of the protection sought and there is a genuine concern among the iwi, hapu and Maori generally that the continued sale of surplus Crown lands jeopardises their expectation of settlement of their respective claims". It was noted that the Crown is presently undertaking a review of the surplus lands policy, but the urgent hearing should nevertheless proceed as sales are continuing under the existing policy.

This allocation of a fixture was however conditional on the outcome of Ngai Tahu High Court proceedings, which seek a declaration that the tribunal not allocate any further fixtures until Ngai Tahu concerns about the tribunal refusal to allocate a fixture to Ngai Tahu have been heard.

[ed: for a discussion of the Ngai Tahu proceedings see the editorial above.]

Interim report on Turangi Lands Claim

Wai 84, 8 September 1995

In an interim report to the Minister of Maori Affairs, the Minister in Charge of Treaty Negotiations, and the Ministers for State-owned Enterprises and Lands, the tribunal recommended that, as a report for this claim is imminent, the Crown should withhold from sale all Crown property in Turangi pending receipt of the report. In a further interim report on 15 September, the tribunal recommended that the Crown agree to meet the reasonable outstanding legal costs and disbursements of claimant counsel both for the hearing of the claim, and for any subsequent negotiations. This recommendation was made the tribunal said because its final report, "which has found that various of the claimants' grievances are well founded" was now with the printer, but made no mention of costs incurred by the claimants.

In a memorandum also dated 15 September, the tribunal declined a claimant request that it recommend that a land bank be established by the Crown for the claim. In light of the 8 September interim report and pending final report (which should be available for presentation to the Minister on or soon after 2 October 1995) such a recommendation was not felt to be appropriate.

Other Jurisdictions

Ngai Tahu Maori Trust Board & Ors v D-G of Conservation & Ors

CA 18/95, 22 September 1995. Cooke P, Richardson, Casey, Hardie Boys, Gault JJ

The Director-General of Conservation in 1992 notified his intention to issue a further permit for commercial sperm whale-watching off the Kaikoura Coast. The holders of the only 2 existing permits, both of them companies owned by Ngai Tahu, objected on Treaty of Waitangi and legitimate expectation grounds. An injunction was obtained. However in December 1994 the High Court dismissed the Ngai Tahu claim that, by virtue of the Treaty of Waitangi, they were entitled to a period of five years protection from competition, or were able to require that the D-G issue no new permits without their consent. Ngai Tahu appealed that decision.

Held: Regulations in 1990 and 1992 made under the Marine Mammals Protection Act 1978 (MMPA) controlled the issue and nature of permits for whale-watching. The MMPA required that before issuing any permit the Minister of Conservation should have regard to the need to conserve marine mammals, any international agreements to which NZ is a party, and submissions received as a result of public notification of the intention to issue a permit. The width of these provisions would enable submissions based on the Treaty and the taking into account of Treaty considerations by the Minister. There was also nothing in the 1990 or 1992 regulations (conferring on the D-G the discretion is issue permits) to prevent the D-G likewise from taking into account Treaty considerations.

Section 4 of the Conservation Act 1987 provides that that Act be interpreted and administered so as to give effect to the principles of the Treaty. Section 6 made it a function of the department to administer the MMPA. There was accordingly sufficient direction to make it a requirement for the D-G to administer the MMPA so as to give effect to the principles of the Treaty.

The Crown was correct in its view that references to the Treaty and Maori in other acts administered by the department under s6 would have an impact on the interpretation of s4 if there was an apparent difference between provisions. However in this case there were no arguably competing references between s4 and the MMPA. Statutory provisions giving effect to the principles of the Treaty in matters of interpretation and administration should not be narrowly construed. The MMPA and regulations were to be interpreted and administered to give effect to Treaty principles at least to the extent that that Act and regulations were not clearly inconsistent with those principles.

Whichever version of article 1 of the Treaty is used, it provided power to the Queen in Parliament to enact comprehensive legislation for the protection of the environment and natural resources. The second article also clearly extended to such sea fisheries as the tribes possessed. Authority for the view that Maori had developed fisheries along the coasts before 1840, and that Maori have customary, aboriginal title or Treaty rights and that the Crown has fiduciary duties in relation to those rights is found in Te Runanga o Muriwhenua Inc v A-G [1990] 2 NZLR 641, 646-7 and Te Runanga o Wharekauri Rekohu v A-G [1993] 2 NZLR 301, 303-6. Rights in both commercial and non-commercial fishing are dealt with by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which does not however affect whale-watching claims.

Ngai Tahu had pitched their claim too high in arguing that the right to conduct commercial whale-watching tours came within the scope of the Treaty or aboriginal title, and accordingly no permit could be granted without their consent (even allowing that consent could not be unreasonably withheld). Following the findings of the Ngai Tahu Sea Fisheries Report 1992 of the Waitangi Tribunal about traditional shore and sea whaling operations, the appellants had argued that while traditionally they had no property in the whales themselves, they had a right of control over access to resources in the sea, and that the present whale-watching operations were a modern-day expression of that right, or arose from it as a right of development. Putting aside the possibility that control may have been extinguished with the extinguishment of title to adjoining coastal lands, it is obvious commercial whale-watching is distinct from anything envisaged by the Treaty. Nor has there been any case in any jurisdiction in which an exclusive right to carry out whale-watching has been dealt with, and while international jurisprudence is coming to recognise an right of development within indigenous rights, that right is not necessarily exclusive. The argument of the Crown was preferred, relying on Te Runanganui o Te Ika Whenua Inc v A-G [1994] 2 NZLR 20, 24-5, that however liberally customary title and Treaty rights may be construed, tourism and whale-watching are remote from anything contemplated by the original parties to the Treaty. A Ngai Tahu veto right must therefore be rejected.

However, the Crown had also pitched its argument too high in saying it had no more than a duty to consult with Ngai Tahu, and that Ngai Tahu representations could not materially affect the decision to issue a permit. Although commercial whale-watching is not a taonga, it is so linked to taonga and fisheries that a reasonable Treaty partner would recognise that Treaty principles are relevant, and the matter must be approached broadly. Since NZ Maori Council v A-G [1987] 1 NZLR 641 it has been established that active protection of Maori interests is required and to restrict this to consultation would be hollow. While conservation values must be paramount, the D-G could legitimately take into account whether rival applicants were less disturbing of the whales, a secondary issue might be the standard of service provided to tourists. A residual factor of weight must be the Treaty duty to recognise the special interests that Ngai Tahu have developed in these coastal waters. A period of protection from outside competition may be part of this. Accordingly, the decision would be referred back to the D-G with a declaration that, subject to the primary consideration of preservation and protection of the whales, the D-G should take into account as a relevant factor the protection of Ngai Tahu Treaty interests.

There were special features in this case to be noted; viewing whales has some similarity with fishing or shore whaling, and although not a taonga or a subject of rangatiratanga, it is analogous. Historically, guiding visitors to see natural resources has been a natural role of Maori, the whale watching operation is essentially tribal, the companies involved being emanations of Ngai Tahu, and Ngai Tahu had been pioneers of the enterprise. As was recognised in Te Runanga o Wharekauri Rekohu v A-G (p304) the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, with each party accepting a positive duty to act reasonably towards the other. A reasonable Treaty partner would not restrict consideration of Ngai Tahu interests to mere matters of procedure. The iwi were in a different position in substance from other applicants. Subject to overriding conservation considerations and the quality of service offered, Ngai Tahu were entitled to a reasonable degree of preference. However, it was noted that the particular combination of factors made this case unique and its precedent value was therefore likely to be 'very limited'.

Huataki Holdings Ltd & Anor v Ministry of Agriculture & Fisheries

M39/94 & M40/94 HC Nelson 4 August 1995. Neazor J

A fishing company holding quota under the Fisheries Act 1983, and representing a number of iwi of the northern South Island, was charged, along with its director, with selling fish to unlicensed persons and failing to complete and furnish catch returns. The charges related to the period before the coming into effect of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, when s88(2) Fisheries Act 1983 relating to Maori fishing rights was still in effect.

Before the district court the defendants argued that s88(2) provided a defence. The tribes had traditionally made no distinction between commercial and other fishing. The judge rejected that argument on the grounds that insufficient evidence of traditional fishing rights had been provided, and that the iwi had chosen to enter the quota system and therefore must accept the duties imposed by it.

Held: in Te Weehi [1986] 1 NZLR 680 and Te Runanga O Muriwhenua Inc [1990] 2 NZLR 641 the courts recognised that s88(2) preserved Maori tribal sea fishing rights, although the argument was never concluded before the Settlement Act 1992 brought that litigation to an end. Accordingly, before the passing of the 1992 Act, the appellants were bound by the quota scheme unless and to the extent they could show that they were exercising rights pursuant to s88(2). The holding of quota and a claim to a traditional fishing right were therefore not mutually exclusive.

Section 11(4)/1992 now provided that as soon as a species was declared subject to the quota management system that declaration could not be questioned. Section 9(b)/1992 provided that no court had jurisdiction to enquire into the existence of rights in commercial fishing. The question whether that prevented this present case being considered was not argued, but it might be that s26(1) NZ Bill of Rights Act would allow s9(b) to be interpreted to allow a defence for events occurring before the 1992 Act was enacted. It was not argued whether a company, as a creature of statute, could claim to be exercising a Maori fishing right, but it might well be accepted that a wholly Maori owned company can be accepted as authorised to act for those in whom a right exists.

The onus of proof was on the defendant to prove a Maori fishing right was being exercised, and not on the Crown to prove that the defendant s actions fell within the offence provisions of the fisheries legislation. The reasoning to the contrary in MAF v Ransom [1993] DCR 1127 was not followed and Te Weehi and Green v MAF [1990] 1 NZLR 411 cases, placing the onus on the defendant, were preferred.

However, there was insufficient evidence on the balance of probabilities that a Maori fishing right was being exercised and the appeal in this regard was dismissed.

[ed: the court noted that this decision is now of largely historical interest because of the 1992 legislation. The decision does however confirm once again the strength of the doctrine of common law aboriginal title in New Zealand, including the point that aboriginal title rights to a resource are not automatically extinguished or reduced by the enactment of a detailed regulatory scheme for that resource.]

Ngati Wai Trust Board & Ors v Whangarei District Council & Anor

A 80/95, 28 August 1995. Sheppard J, PA Catchpole, F Easdale

Local Maori and a supporting group, Network Waitangi, appealed against a decision of the district council granting a resource consent for the "intensification" of a caravan park by provision of a further 120 camping sites. The Planning Tribunal rejected the appeal. Among other matters, the tribunal found that:

 Claims that tangata whenua had not been consulted were not made out. Although the RMA 1991 does not specifically require consultation with tangata whenua, it is recognised good practice to do so where issues under ss6(e) or 7(a)/1991 arise. Here there was a disagreement among local Maori about who actually had tangata whenua status. It was not for the consent authority to decide which among competing groups is entitled to the status of tangata whenua or mana whenua (see Paihia and District Citizens Assoc v Northland Regional Council A77/95), and the applicants had taken reasonable steps to consult with all who claimed that status.

 The argument that the consent did not provide for the cultural well being of tangata whenua and that only tangata whenua were competent to judge that, should be rejected. Expert evidence showed that the cultural well being of people in the area would be maintained, and in raising the issue before the tribunal, the appellants must accept the tribunal s competence to rule in this matter, and provide evidence to support their contrary view.

 As to s6(e) (preserving relationship of Maori with the area), the conditions imposed by the council on the consent, in particular, that the camping ground proprietors inform campers of Maori values and waahi tapu in the area, were adequate. Archaeological evidence did not support assertions about the existence of other claimed burial areas, and the Department of Conservation could protect existing waahi tapu areas which might receive increased visits.

 As to s7(a) (kaitiakitanga), consent authorities do not have to decide between competing groups claiming kaitiaki status. Conditions on the consent were adequate to ensure kaitiaki values would be maintained.

 As to s8 (Treaty), the tribunal rejected the claim that granting the consent failed to account for the essential nature of the Treaty bargain, including tribal self-regulation. Evidence of the appellants on this point had been general and similar to 'political rhetoric' and not applied to the particular case.

The tribunal also commented that tangata whenua evidence which focuses succinctly on facts and attitudes relevant to the particular case is welcomed, and can be influential when timely notice is given in accordance with the Act, and statements of evidence are delivered to other parties prior to hearing.

General

Reserves and Other Lands Disposal Act 1995

Sections 3 to 6 of this Act give effect to the settlement of a claim before the Waitangi Tribunal concerning lands at Hauai peninsula in Northland. In the early 1970s, the trustees of 25 hectares of Maori freehold land on the peninsula made plans to subdivide it. In 1974, after approaches from the Department of Lands and Survey (concerned at the time to preserve coastal lands for 'all New Zealanders'), the land was exchanged for 28 hectares of Crown land known as Felix Farm in Whangarei, represented to be 'suitable for subdivision'. The Felix Farm land had previously been affected by coal mining operations, and was potentially subject to subsidence something the new Maori owners were not aware of. In 1989 the Maori Land Court overturned the exchange on a procedural technicality and suggested negotiations to remedy the issue (1989 Chief Judge MB 67). Eventually a claim was made to the Waitangi Tribunal, which appointed a mediator to effect a settlement, which this Act puts into effect.

The Act revests in the Hauai trustees the peninsula land and revests in the Crown the Felix Farm land. The present reservation status of the Hauai land under the Reserves Act 1977 is cancelled. Marginal strip requirements of s24 Conservation Act 1987 will not apply to the revested Hauai land, but an area equivalent to the marginal strip is to be held by the trustees as a Maori reservation for the common use and benefit of the people of NZ. A waahi tapu area is also separately reserved. This legislation was first introduced in 1993, but was not passed until 21 September 1995.

The Settlement of Claims under the Treaty of Waitangi. Report of the Controller and Auditor-General

Second Report for 1995. 12 September 1995. DJD Macdonald

The Auditor-General s interest in this area arises from the considerable sums of public money involved. The report describes current policy and the legislative framework for the hearing and settlement of claims and identifies the agencies and processes involved. Costs were difficult to quantify because of changing reporting systems. The total money spent to date on processing claims from 1991-2 to 1995 (including research, tribunal hearings etc) is $41,337m, with most (over $17m) being spent in the Office of Treaty Settlements (compared to $11,607m for the Waitangi Tribunal). Results of the process have included:

 Settlements totalling over $182m have been made since 1991-92, and a further $500m has been set aside to settle claims through to 1999;

 A backlog building up of uncleared claims (an estimated 582 by June 1996);

 Less than half of 137 recommendations of the tribunal have been implemented, with 6% rejected outright and 'no start' made on 22%;

 Only 43 or 4% of the 1,194 surplus Crown lands advertised to Maori have been held back from disposal. This is despite 4,653 applications being received to have lands held back from sale;

 To date, $73,176m has been spent on holding land in land banks pending future settlements.

The report concludes:

 There is a need to complete and make public a comprehensive Treaty settlement policy;

 An integrated budget is required for the entire process;

 Formal sharing of information between the agencies involved is required;

 Some agencies in the settlement process have dual roles which add an "avoidable degree of complexity", because in this area the government has the dual objectives of fairness to claimants and affordability to taxpayers;

 The surplus land claims mechanism is under strain;

 An integrated system for monitoring and reporting progress in claim settlements is required.

Annual index

Māori Law Review Index December 1994 to November 1995

The Treaty and Municipal Law

On the 7 April 1995 the Australian High Court in Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353 held that a convicted heroin smuggler from Malaysia, who was refused residence in Australia because of his criminal convictions, had a legitimate expectation that the immigration authorities would consider UN instruments on the paramount rights of children, and initiate inquiries into the effect his deportation might have on his children born in Australia. The majority of the court found that international instruments which had been ratified, even if not yet incorporated into municipal law, could generate a legitimate expectation that officials would act in accordance with them. As Dr Rodney Harrison noted in a recent paper, this and similar, if less dramatic, NZ judgments, open the way for international human rights covenants to be invoked in the context of administrative decision making by the executive ("Domestic enforcement of international human rights in Courts of law: Some recent developments" NZLJ August 1995 p256). In light of these developments it is becoming alarmingly anachronistic that the Treaty of Waitangi remains officially in the position the Privy Council left it in in Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308, outside the municipal law of this country until incorporated into it directly by statute. In a recently published essay, Sian Elias QC has argued that "it is time to recognise that the notion of arbitrary Parliamentary sovereignty represents an obsolete and inadequate idea of the New Zealand constitution. It fails to take account not only of the place of the Treaty in New Zealand history but also of developing principles of international law. The Treaty requires to be recognised as fundamental to our constitutional system by reason of its status as a compact with the indigenous peoples of New Zealand and because of the vulnerability of the indigenous people and the increasing international concerns for their protection." ("The Treaty of Waitangi and the Separation of Powers in NZ" in Courts and Policy. Checking the Balance Legal Research Foundation 1995). At the hui called by Sir Hepi Te Heuheu in response to the Crown proposals for Treaty settlements it was decided that priority should be given to "a constitutional review jointly undertaken by Maori and the Crown for the purpose of developing a NZ constitution based on the Treaty of Waitangi." (MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" in VUWLR vol 25 no 2 July 1995). In the coming months, it is hard to see how debate about the status of the Treaty can be avoided.

Maori Land Court and Appellate Court

No cases this month.

Waitangi Tribunal

New Appointment to the Waitangi Tribunal

Te Tari Kooti (Department for Courts) Press Statement 18 August 1995

Roger Maaka has been appointed to replace Sir Hugh Kawharu who recently retired. Mr Maaka is a lecturer in Maori Studies from the University of Canterbury and is currently completing a short period of teaching at the School of Native Studies at the University of Alberta, Canada. He is of Ngati Kahungunu descent and an expert in the history and traditions of that iwi. This appointment takes the Tribunal strength to 16 members including the Chairperson.

Memorandum of Crown Counsel Concerning Raupatu and Proposed Interim Report

Wai 46 & other Bay of Plenty claims 28 July 1995

At the request of the Tribunal for a statement of the Crown position, and after receiving instructions from the Minister in Charge of Treaty of Waitangi Negotiations, "The Crown acknowledges that the confiscation of land, as it occurred in the Eastern Bay of Plenty region, constituted an injustice and was therefore in breach of the principles of the Treaty of Waitangi. The Crown is amenable to developing the precise wording of any statement on raupatu to be included in any Deed of Settlement in discussion with each claimant group, as a component of the negotiating process."

Amended Statement of Claim for Ngai Tahu

Wai 27. 6 July 1995

The claimants allege that the Crown in August 1994 unilaterally suspended negotiations to settle their claim in light of the Waitangi Tribunal report of February 1991 against the wishes and without the consent of Ngai Tahu. This action, together with the release of the Treaty claim settlement proposals in December 1994, are said to have effectively denied Ngai Tahu of the opportunity for a negotiated settlement. The claimants say that the Crown has acted in bad faith during the course of negotiations and in suspending them. The Crown has sought to impose terms on the reopening of negotiations which would deny Ngai Tahu recourse to legal redress in the Tribunal or elsewhere. The Crown settlement proposals including its fiscal envelope represent "unconscionable and gross breaches of the Principles of the Treaty of Waitangi." Accordingly, the claimants seek that the Tribunal urgently reconvene and make recommendations for the return of all state owned enterprises and Crown forest land within the Ngai Tahu takiwa (district).

[ed: the tribunal has not yet issued substantive directions in response to this amended claim. A hearing is unlikely while various High Court actions brought by Ngai Tahu are pending, including an action concerned with an earlier tribunal ruling on urgency.]

Other Jurisdictions

Hauraki Maori Trust Board & Ors v The Waitangi Tribunal & Ors

CP 171/95 & ors, HC Wellington, 31 July 1995. Ellis J

Several groups involved in litigation over the allocation of assets under the Sealords fisheries settlement of 1992 sought declarations or orders to prevent the Waitangi Tribunal from hearing claims that the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) had or might breach the principles of the Treaty of Waitangi in its current proceedings to determine the best allocation of the assets. The tribunal had itself heard argument and already issued an opinion that it could proceed to a hearing on the claims (see Maori LR May 1995).

Held: the tribunal should not proceed with its proposed enquiry because it would be premature as a matter of law to do so. The Deed of Settlement of September 1992 provided that, in addition to the 10% of national fishing quota already held by Maori under the Maori Fisheries Act 1989, the Crown would give $150 million to Maori to complete the purchase of a holding in Sealords fishing company whereby Maori would receive 26% of the national fishing quota. The Treaty of Waitangi Fisheries Commission was then to propose a scheme of distribution for pre-settlement assets (the 10% of quota) and a separate scheme for post settlement assets (the 26%). The Treaty of Waitangi (Fisheries Settlement) Act 1992 gave effect to the Deed. The current contentions concerned the scheme of distribution for pre-settlement assets and arguments surrounding the definition of iwi and the model of distribution to be used. The court noted the "prophetic" words of Cooke P when the Deed of Settlement was challenged in the Court of Appeal that "should any legislation be enacted in this field, there could be little point in bringing the matter again before the Courts until at least some years of experience have been gained, and perhaps not even then." Te Runanga o Wharekauri Rekohu Inc v AG [1993] 2 NZLR 301, 308. Noted that the commission considered itself bound to distribute the pre-settlement assets to iwi. Urban Maori claimants contended "iwi" should include more recent groupings. The commission was unfortunately stuck with the term "iwi" rather than the wider words of the Treaty referring to "chiefs, subtribes, and all the people of NZ" (article 2). This issue was before Anderson J in other High Court proceedings (see Maori LR July 1995). It was to be hoped the separate scheme for post- settlement assets would follow the pre-settlement principles.

The distribution model based on coastline length but also partly on population (mana whenua mana moana model) is causing contention. It would be a national disaster if this dispute is not settled by agreement. This judgment was about the timing in the use of people and resources for reaching that agreement.

The judgment should be read together with the Fisheries Settlement Report 1992 of the Waitangi Tribunal. The precepts of that report were followed in this judgment. Shortcomings noted in that report of the Deed of Settlement had been perpetuated in the 1992 Act. The provisions of the 1992 were to be interpreted in light of the principles of the Treaty and the resolve by Crown and Maori to settle fishing claims once and for all in a spirit of co-operation and good faith. The tribunal was correct in its opinion that the fisheries commission acted in some of its functions on behalf of the Crown, and in proposing a policy for the allocation of settlement assets was acting on behalf of both the Crown and Maori. While the tribunal was precluded by s6(7) Treaty of Waitangi Act 1975 (inserted by the 1992 Act) from challenging the settlement in respect of commercial fishing or fisheries achieved by the Deed of Settlement and the 1992 Act, it had been correct in its finding that it could look at the mechanism establishing what the Deed and Act meant and how they were to work. Nor did s9 of the 1992 Act (no court or tribunal to have jurisdiction to hear claims concerning commercial fishing or the Deed) preclude a tribunal inquiry.

When the commission reports to the minister a proposal for the allocation of pre or post settlement assets, there would only then be a policy proposed to be adopted both by the commission itself and by the Crown. The tribunal might then entertain claims in respect of the policy. However, despite submissions to the contrary, the commission had not yet made up its mind on a proposal for allocating pre-settlement assets. Detailed and "comprehensive" submissions from counsel for the commission, that no proposal had been decided upon and that work on a wide range of options was continuing, were accepted. The commission had not yet proposed a policy that could be the subject of enquiry by the tribunal. The commission had perhaps reached a low point in its search for agreement, but it was not at an impasse and had a working majority ready to press on. It would be unreal to expect commissioners not to be by now following or inclining towards a particular model.

An argument by Sir Graham Latimer and others that commissioners, including himself, felt overborne by the others was refuted by Sir Graham s actions, namely his public, unfounded and sad allegations that some commissioners had acted fraudulently.

The claims of various groups, including urban Maori, went to the heart of Maori unity and the future of iwi. Even the Treaty itself might be at stake. Accordingly, the court commended parties to accept a tribunal offer to stage a hui to seek a path to agreement in a forum traditional yet modern. This was an opportunity for statesmanship.

[ed: the decision is noteworthy also for including a page long Maori text recording its essential finding that, "e ai ki te ture, he wawe rawa te whai a Te Taraipiunara kia tirohia ngaa whakahaere a Te Ohu Kai Moana." The court accepted the approach of the commission - that there were no serious objections to the view that some mix of coastline length and population would be the basis of any final proposal, and that discussions were ongoing about what that mix might be. Even models for allocation said to be in disagreement with the commission approach, such as the Tainui "Takutaimoana" model, included some mix of coastline and population.]

In Re T

HC 66/94, HC Auckland, 2 June 1995. Tompkins J

This was an appeal against a decision declining an application for a Samoan child to be adopted by its grandparents (under restrictions in s11 Adoption Act 1955). The child had been born to a young unmarried mother who now lived with the grandparents and had since married a man other than the biological father. While an earlier decision MR v Department of Social Welfare (1986) 4 NZFLR 326 suggested that adoption by grandparents will not necessarily promote the interests of the child where a clear relationship with the mother still exists, decisions since then, most notably Re Adoption of A [1992] NZFLR 422 and Application for Adoption by RRM and RBM [1994] NZFLR 231, dealing with Maori children, showed that full regard should be had to the cultural attitudes of the family concerned. An adoption which might be considered inappropriate in a European setting may well promote the welfare and interests of the child in a Polynesian family.

Pineaha v Pepeko

CS 081 073 92. Family Court Waipukurau, 8 June 1995. Inglis J

The mother of a male child born in 1984, who had had that child adopted at birth by a paternal aunt, applied for suspension of child support liability. The mother had never played any part in the care and upbringing of the child and the adoption, which had never been formalised under the Adoption Act 1955, was in accordance with tikanga Maori or recognised Maori custom. When the adoptive aunt and her partner had applied for and been granted a domestic purposes benefit the Department of Social Welfare had approached the birth mother seeking a liable parent contribution, arguing that it had no discretion to do otherwise under the legislation.

Held: this was, by any reasonable standards, a situation which 'defied common sense'. The customary adoption had existed for nearly 11 years. Counsel for the mother argued that s25(1)(a)(ii) Child Support Act 1993 (parent ceases to be liable when child is "adopted"), when it refers to adoption, is not limited to adoptions under the Adoption Act 1955. Because Maori customary adoptions are clearly referred to in other legislation eg Maori Land Act 1993 (ss108 & 115), Parliament can hardly have been ignorant of them 2 years ago when it passed the Child Support Act.

It is a necessity to acknowledge the cultural strength of adoptions according to tikanga Maori. The omission of a direct reference to the 1955 Act in s25 "could only have been deliberate and was intended to enable customary Maori adoptions to be respected and recognised." Accordingly, the applicant ceased to be liable for child support when the child was adopted in accordance with custom. It would be sensible however for Maori who prefer custom and wish to remove any argument, to arrange a 're-adoption' under the 1955 Act.

[ed: the Crown is appealing this decision]

Falkner & Ors v Gisborne District Council & Anor

AP 1/95, HC Gisborne, 26 July 1995. Barker J

A group of homeowners, concerned that the local authority would no longer under the district plan protect their beachfront properties from erosion, argued that, despite the Resource Management Act 1991, a common law rule continued in existence requiring the Crown to preserve the realm from inroads of the sea, and allowing the homeowners to take action to protect their properties from the sea. The High Court determined that, despite savings provisions in the RMA (s23), where pre-existing common law rights were inconsistent with the scheme of the Act, those rights would no longer be applicable. The Act was not a vindication of personal property rights but concerned the sustainable management of resources, therefore there was nothing in the scheme of the Act to suggest that common law rights could not be infringed quite the reverse. The court suggested a compensatory scheme be enacted for the loss to be suffered by the homeowners by the change in the district plan.

[ed: this decision is noted because if indicates the potential impact of the RMA and similar legislation on rights which might be claimed under the doctrine of aboriginal title to the ownership, management and use of resources.]

Mataka Station Ltd v Far North District Council & Anor

A69/95, Planning Tribunal, 20 July 1995. Bollard J, Dr AH Hackett Mr IG McIntyre

An appeal against conditions of a resource consent granted by the council for a papakainga housing scheme in the Bay of Islands. The scheme was for 25 dwellings on a 172.77 hectare coastal block of Maori freehold land managed as a s438 trust (now an ahu whenua trust see s354 & s215 Te Ture Whenua Maori 1993). The land was ancestral land which had been in the ownership of the applicants' families since pre-European times and was held in multiple ownership by descendants of the original tupuna (ancestor). There was a marae and urupa on the block. The appellant's main concern was that the location of some dwellings on an area facing the sea would detract from the visual quality of the coastal environment, contrary to statements in various national, regional and district plans and the RMA itself. It was argued that some dwellings should be located in a central valley away from the coast.

Held: it was agreed by all parties that the block was suitable for a papakainga development. The district plan provided that marae and urupa were a permitted activity, and papakainga housing a discretionary activity within the coastal zone 1A designation covering the land. The district plan provided for 11 coastal zones. Zone 1A applied to sensitive parts of the coastal environment where conservation oriented polices were to be pursued and some managed change was allowed. Papakainga housing in the zone, when permitted, was to be limited to 25 houses per site with a density of 1 unit per 2 hectares of site area. No dwelling in the zone could be closer than 40 metres from the mean high water mark. Earthworks undertaken in the zone for dwellings were also subject to limits. A papakainga development plan was to be forwarded to the council prior to the commencement of any work.

The provisions of other relevant planning instruments were examined, namely, the proposed Regional Policy Statement, the NZ Coastal Policy Statement and the proposed Regional Coastal Plan, which designated the area as a "Marine 2 (Conservation) Management Area". The tribunal noted a legal opinion that, because different owners would have stronger ancestral links with some parts of the block than with others, it was appropriate that the location of housing sites on the block should promote whanaungatanga links of owners with their own particular piece of land or turangawaewae.

After evaluating these documents and the RMA (Part II and s104(1) in particular), the tribunal made an interim ruling allowing the scheme to proceed, bearing in the mind the need to ensure that the character of the coastal environment was maintained while allowing the applicants to locate on those dwelling sites as near as possible to areas with which they retained special links based on ancestral connections. Tentative conditions to be imposed included:

 that a surveyor locate each proposed dwelling site more exactly than on current plans;

 that dwellings be of single or split level construction only;

 electric power and telecommunications services be visually non-intrusive and underground as far as possible;

 that water storage and other accessory buildings for each dwelling be restricted in area;

 that all buildings be painted in naturally recessive colours to blend with the landscape;

 application be made to the Maori Land Court to define accessways across the block, and to set aside a foreshore area as a Maori reservation for esplanade-scenic purposes;

 conditions as to the quality and width of roadways over the block;

 that before building consents issued, a landscape plan be submitted to the council, and occupiers enter an agreement with the council to maintain the landscape in accordance with the plan, including an undertaking not to fell trees or scrub to increase views from the dwelling, and to implement the landscaping works applying to the dwelling within 12 months of occupying the dwelling;

 the trustees have overall responsibility to implement the landscape plan within an agreed period;

 an arrangement be made for fencing to be erected to restrict stock movement on the block;

 a time period be set within which existing unauthorised structures, including derelict vehicles, be removed from the block.

Parties were to reapply for final orders when the survey work to better locate the proposed dwellings and preparation of landscape plans had been completed.

[ed: the case is a good example of the many planning rules papakainga schemes may be subject to under the RMA regime, and the numerous conditions which may be imposed before schemes proceed.]

General

Waikato-Tainui Raupatu Claims Settlement Bill 1995

No 104-1

When enacted, this bill would make the necessary legislative changes to put into effect the Deed of Settlement of 22 May 1995 between Waikato-Tainui and the Crown (see Maori LR May 1995). The Deed of Settlement contained undertakings by the Crown to transfer particular Crown owned properties in the Waikato-Tainui claim area to a land holding trust established by the claimants. Much of this Bill is concerned with the undertaking that, wherever possible, land should be the recompense for the land that was confiscated. It does this by providing that all residual Crown lands in the claim area be potentially available for transfer to the land holding trust. Accordingly, the Bill provides mechanisms for:

 the transfer of Crown lands to the land holding trust;

 having titles to all residual Crown properties in the claim area marked with memorials noting that the land may be required to be offered for purchase to the land holding trust in certain circumstances;

 requiring Crown bodies to give the land holding trust the first right of refusal over any residual Crown land which they seek to sell;

 providing for the Crown to compulsorily acquire residual Crown land from Crown bodies to further the settlement;

 providing for properties to be vested in Pootatau Te Wherowhero (Te Rapa and Hopuhopu land being the first) as directed by the land holding trust.

Because the settlement seeks to finally settle Tainui claims in the claim area, the Bill also contains provisions:

 to cancel resumptive memorials from all state owned enterprise properties in the claim area;

 to remove any requirements under the Crown Forest Assets Act 1989 that Crown forest lands in the claim area be considered for return to Maori, except for Maramarua and Onewhero forests, which are to be returned to the claimants (the return of Onewhero is subject however to a suitable arrangement with the counter-claiming Hauraki Maori Trust Board being worked out first );

 removing the jurisdiction of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 to consider further the Waikato-Tainui claims finalised by the Deed of Settlement, or consider the settlement or benefits under it.

The Bill also makes incidental amendments to:

 Transit NZ Act 1989 - providing that projects affecting land registered in the name of Pootatau Te Wherowhero may not proceed unless the land holding trustee has first been consulted;

 Conservation Act 1987 - providing for the appointment of the Maori Queen and her successors to the conservation board covering the claim area;

 Resource Management Act 1991 - providing that resource consents may not be granted conditional on a financial contribution comprising or including land registered in the name of Pootatau Te Wherowhero;

 Crown Minerals Act 1991 - requiring the consent of the land holding trustee before any exploration activities can be carried out on land registered in the name of Pootatau Te Wherowhero, or land regarded as waahi tapu by the trustee;

 Maori Trust Boards Act 1955 - providing for the eventual dissolution of the Tainui Maori Trust Board when the settlement is in place, and cancellation of the annuity to that Board.

Trial by Peers? The Composition of New Zealand Juries

July 1995. Policy and Research Division. Department of Justice

This is an interesting study of apparent racial bias at work in NZ courts. Historically, Maori were excluded from sitting on juries until 1962 (except in Maori-Maori matters). Moana Jackson's paper The Maori and the Criminal Justice System: A New Perspective - He Whaipaanga Hou (1988) alleged that a monocultural bias existed in jury composition because of the way jury lists were assembled from the electoral rolls and the way challenges were made in court. This report investigated those allegations.

With regard to compilation of the jury list, the report found that in comparison with the population as a whole Maori were under-represented because of the relative youthfulness of the Maori population (ie fewer eligible to serve), the smaller proportion of Maori living near urban areas where jury trials are held (jury lists draw on people within 30 km of the courthouse) and the higher rate of Maori non- registration on electoral rolls. Other factors thought to be involved were jury summonses being sent by post to a highly mobile population, and disqualification through previous convictions (higher rates of Maori conviction). Maori women were also under represented in the jury pool. Research showed that there would be little change by increasing the size of districts from which juries are drawn to take account of the rural dwelling bias in the Maori population.

A survey of challenges in court showed that although defence counsel were twice as likely to challenge jurors as the prosecution, prosecution counsel were twice as likely to challenge Maori as non-Maori in the High Court, and 3 times as likely in the District Court, meaning that close to every second Maori male was challenged in the District Court. Maori males were overall the most challenged group. To explore this bias, a qualitative survey of judges, lawyers and court staff was undertaken. Evidence of previous convictions (police regularly provide printouts from the Wanganui computer to counsel), and the impression that Maori males would be more lenient on the accused, particularly where the accused is Maori, emerged as important factors. This bore out suggestions from US research that black jurors are less likely to convict than white ones and that the prosecution are more likely to challenge a person of the same minority group as the defendant. Other factors included perceptions of whanau or kinship links with the accused, demeanour, socio-economic bias, and client instructions. A counter-bias was also noted, where counsel did not want to give the rest of the jury the impression that they were selecting solely by race.

Despite these problems, there was little support from judges, lawyers and court staff either to reduce the number of challenges, or to provide guidelines for prosecution challenges. The authors recommend that consideration be given to the current number and use of challenges and whether they lead to a properly representative jury, a trial by one's peers.

[ed: It is interesting to see that the same problems which plagued the carrying out of the Maori electoral option, the low number on the electoral roll and the inefficiency of postal communication, also have an impact on the involvement of Maori in the justice system.]

Treaty Issues: The Unfinished Business. Proceedings of a conference held in Wellington, February 1995

VUWLR vol 25 no 2 July 1995

This volume of the Victoria University Law Review is dedicated to Treaty issues. Highlights include: MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" (p109) concerns the hui called by Sir Hepi Te Heuheu to discuss the government Treaty settlement proposals released in December 1994. The paper notes the need to develop a constitutional framework in which the Treaty achieved certainty.

Sir Kenneth Keith "The Roles of the Tribunal, the Courts and the Legislature" (p129) reviewed recent applications of the Treaty in NZ law. Reflecting on the place of the Treaty in the NZ constitution in the future he said we should be wary of terms like sovereign and independent, "In the present world, made even smaller by technology and many other human and natural forces, no state is fully sovereign in its external relations, and leaving aside a handful of absolute dictatorships no politician or government or parliament has real internal sovereignty. What we are seeing is the dispersal of power from so-called 'sovereign states' in at least three directions - to the international community, to the private sector, and to public bodies and communities within the State." He suggested the possibilities for enforcing Maori aspirations included; a measure of self determination, the power of veto, rights placed as a constraint on or made relevant to the exercise of public power, Maori rights to be recognised as equal under Article 3. "The variety of those actual and possible arrangements indicates that the oft stated proposition that the law must apply equally to all at all times is too simple. We need to have a more subtle, but still principled, approach to the recognition and allocation of power. ...The diversity can relate to the deciders and their processes as well as to the substantive rules and principles."

Robert Te Kotahi Mahuta "Tainui: A Case Study of Direct Negotiation" (p157) discussed the history of negotiations with Tainui and the recent settlement negotiations.

Sir Tipene O Regan "A Ngai Tahu Perspective on Some Treaty Questions" (p178) contains characteristically pithy comments on current Treaty issues, including the view that iwi are the appropriate body to settle matters with in preference to hapu or pan Maori organisations. "[A] hapu, like the subsets of which it is composed, the 'whanau', is really an extremely dynamic concept. It is in a process of continual evolution and decay. ... If I want to disassociate myself from my immediate relations in some manner, all I have to do is go to the [cemetery] headstone, pluck down a name, establish the whakapapa to that name, and announce myself as 'Ngati Mea' or 'Ngati Mea Iti' for the occasion. Then I trot along to the Maori Land Court and make a section 30 application and before long the Maori radio is dripping with my tearful struggle to assert my identity. ... In practice as well as in tikanga and legal terms, there exists a tribal overright. ... the Iwi, the tribe, is a group around which you can effectively erect a whakapapa fence which matches the rohe fence."

Tania Rangiheuea "The Role of Maori Women in Treaty Negotiations and Settlements" (p195) concludes that to date, women have been on the outside looking in, with decisions being made by a Maori "boys club".

Whaimutu Dewes "Fisheries - A Case Study of an Outcome" (p219) comments on progress with allocation by the Fisheries Commission. He notes that customary fisheries issues are a mess and are underresourced.

Rt Hon Sir Geoffrey Palmer "Where to From Here?" (p241) said that "the idea that sovereignty should be given to Maori at a time when the notions of sovereignty are collapsing all over the world seems to me to be ludicrous. Once upon a time we thought the NZ Government was sovereign. We hardly think that now. Far from being the indivisible omnipresent concept that Hobbes made it in Leviathan, sovereignty is more like a piece of chewing gum. It can be stretched and pulled in many directions to do almost anything. Sovereignty is not a word that is useful and ought to be banished from political debate. The notion that sovereignty for Maori comes from the Treaty of Waitangi is highly controversial and requires reading one provision of the Treaty up and another down."

In a final "Comment" Moana Jackson (p245) said that he knows of no "fiercely independent group of people in the world .. who would voluntarily give away their sovereign authority" and the "untruth" that the Treaty achieved such a thing should be dropped. He is concerned that the Treaty is losing its political reality and being drowned in the rhetoric of the law, and quoted a Canadian indigenous lawyer reflecting on the concerns of the majority culture: "... I say to indigenous people, tell your stories of difference to break away from where they wish us to be. Because where they wish us to be is somewhere between being dominated and apparently equal, somewhere between laughter and tears."

Annual index

Māori Law Review Index December 1994 to November 1995

Māori Appellate Court

Status of Land – change to General land will not lead to more effective management and utilisation - Cleave – Part Orokawa 3B (1995) 4 Taitokerau Appellate Court MB 95

Trustees - In Re Maxwell and Maruata 2B2 Block Appeal 1994/9, 16 September 1994

Māori Land Court

In Re Tararua District Council 138 Napier MB 104

Waitangi Tribunal

Waterways - Te Whanganui-A-Orotu Report 1995 (Wai 55, 1995)

Resignation of Waitangi Tribunal member

Other Jurisdictions

Jackson & Ors v A-G & Paraparaumu Airport Ltd & Ors (CP 149/95, High Court Wellington, 30 June 1995. Neazor J)

Te Waka Hi Ika O Te Arawa and Ors v TOKM & Ors (CP 395/93 and others, 30 June 1995. Conference minute of Anderson J)

Paul v Whakatane District Council & Another (A12/95, 13 March 1995. Sheppard J, PA Catchpole, F Easdale)

General

Treaty settlements and "offers back" under the Public Works Act

Funding for the Settlement Envelope

Reserved lands policy, compensation considerations

Coromandel Hauraki Gulf (Prohibition on Mining) Bill

Judicial Attitudes to Family Property

Fisheries (Palliser Bay Taiapure) Order 1995

Annual index

Māori Law Review Index December 1994 to November 1995

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The claim to the sea

In the context of the current debate over fishing rights and mana whenua mana moana, the following incident is offered for reflection.

In 1955 Nga Puhi elders lodged an application with the Maori Land Court for title to Te Moana-nui-a- Kiwa, the Pacific Ocean. The claim was based on: rights from Tangaroa, as descendant of Rangi and Papatuanuku; the act of Maui-tikitiki-a-taranga in fishing the island from the sea; on Kupe through his voyage to the island across this ocean, and his naming of points on land alongside it; and through human blood which Kupe smeared on his face when fishing the island from the sea. By the time Europeans discovered the ocean, the applicants said, it had already been crossed many times by Maori and was a marae of the ancestors. This application apparently followed a pre-war petition to similar effect placed before Parliament but not acted upon.

Perhaps to allay any government concerns, and to conform to Maori Affairs legislation, the applicants were seeking for the waters of the ocean to be vested in them as trustees. Since they were British subjects, "the world would know these waters were controlled by the British Crown".

Not surprisingly, the Maori Land Court judge at Rawene felt that he lacked jurisdiction to consider the claim, saying the Court could only regulate disputes concerning Maori fisheries, but he complimented the elders on the preparation of their case. The judge was concerned that other litigants were waiting to be heard and limited the hearing of the case to one hour. The applicants in turn thanked the Court for consideration of their claim (64 JPS (1955) 162, NZ Herald 24 February 1955).

It may have crossed the mind of the judge (Judge Clarke) that this application was fanciful, although he did not say it. But what would we say now in light of the Territorial Sea and Exclusive Economic Zone Act 1977 and the modern law of the sea? The Waitangi Tribunal, reflecting in recent years on Maori views of dominion over the seas, unconsciously echoed this earlier claim in finding that "Maori saw the oceans as one expansive whole. Their right to it was based on ancestral associations. The Pacific they called Te Moananui-a-Kiwa, (the expansive ocean of Kiwa) and all Polynesians who relate to Kiwa are entitled to be there. A southern portion, Te Moana-a-Kupe, is held for Kupe s people. By ancestral connections did Maori relate even to the open seas, ..." (Muriwhenua Fishing Report 1988 p184).

Maori Land Court and Appellate Court

In Re Tataraakina C Block and Baker & Others

Appeal 1994/20, 11 Takitimu ACMB 50, 18 May 1995. Deputy CJ Smith, Marumaru J, McHugh J

This was an appeal against an order of the Maori Land Court appointing trustees to an ahu whenua trust under s222/1993. The block, of over 14,000 hectares, had been vested in an incorporation. The incorporation was wound up and application made to constitute a s438 trust under the Maori Affairs Act 1953. The winding up of the incorporation had taken longer than expected. The court called a meeting of owners, who voted to indicate their preferred trustees, and this was immediately followed by a court sitting at which orders under s222/1993 constituting an ahu whenua trust and appointing trustees were made. The appointments orders were appealed on the grounds that tikanga Maori had not been considered in the appointments; the court had not considered applicable statutory requirements in ss2, 17, 32 and 222/1993; there had been unfairness in the procedure for appointing trustees; the court gave undue weight to future forestry development when considering who would be trustees; and gave insufficient weight to relevant considerations, in particular the past record of persons associated with the management of the land.

Held: all of these submissions should be rejected. Although the 1993 Act does not specifically provide that tikanga Maori be taken into account in the establishment of trusts, the Preamble and s2 made it incumbent on the court to have regard to tikanga should the issue arise in the course of proceedings. In this case the selection meeting had been held on a marae, and involved face to face or kanohi ki te kanohi discussions, a traditional preference. Some candidates for trustee positions cited their tribal background and particular attributes and skills in matters Maori.

In determining whether to appoint particular trustees the court must, in addition to other matters, be satisfied the appointment is "broadly acceptable" to beneficiaries (s222(2)(b)/1993). This can be interpreted to mean "widely or generally acceptable". Holding the special MLC sitting immediately following a meeting of owners is not a common practice, and should be approved only where special reasons warrant it. But there were no controversial issues to be dealt with at the meeting of owners, and the principal purpose of the meeting, to appoint trustees, had been well notified and awaited for some time.

The MLC was justified in its view that one major shareholder s influence on election results was excessive by reason of her large interests in the land, and it had not acted unfairly in mentioning to the meeting that it had a duty to guard against tyranny by majority shareholders when considering the results of votes cast. The MLC was justified in assessing the election results not only on the number of shares cast for each candidate but also the number of owners who voted for each candidate.

A procedural point: although the application for a trust order was made under s438/1953 and the MLC was entitled to make the trust orders under that provision, it was able of its own motion to invoke s215/1993 to create the trust. Section 37(3)/1993 confers this power. It was also ordered, pursuant to s86/1993, that the trust orders made by the MLC should be amended to record that they had been made under ss222, 215 and 220/1993.

Mourea Papakainga 3D v The Maori Trustee

240 Rotorua MB 212, 26 May 1995. Savage J

The Maori Trustee was the owner under a s438 trust (now ss215, 220/1993) of Maori freehold land at Lake Rotoiti on which there is a resort hotel. The land was mortgaged, and due to financial difficulties the mortgagees sought to sell the land. The Maori Trustee arranged a rescue package whereby various Maori land trusts were to lend money, secured by way of another mortgage over the land. Two of the trusts failed to lend money as expected. At the 11th hour, the Maori Trustee stepped in and advanced money to the non-lending trusts. The mortgage document was not altered however, and recorded that the non-lending trusts were mortgagees. Some months later the Trustee entered a term loan contract with itself as borrower, granting security to itself by way of the mortgage. Now the Maori Trustee sought an order that the 2 non-lending trusts held their interest in the mortgage in a fiduciary capacity and that that interest be vested in the Trustee accordingly pursuant to s18(1)(i)/1993. The trusts for their part sought vesting orders under s239/1993 so that a discharge of the mortgage could be executed.

Held: s18(1)(i) refers only to whether "land" is held in a fiduciary capacity, and that word does not extend to include an artificial legal interest such as a mortgage. However, the matter could dealt with under s18(1)(a) which allows interests to be determined, but does not permit a vesting order to be made. There was no evidence the lending trusts knew the Trustee would be involved until after execution of the mortgage. An arms length commercial transaction will rarely give rise to a fiduciary relationship. The Trustee had set up a commercial transaction but had not brought the other lenders including the non-lending trusts into the picture. The mortgage secured interests in the land only for the lending trusts.

Waitangi Tribunal

Ngati Awa and other Bay of Plenty claims

Wai 46 and others. Memo following 6th hearing, 8 June 1995. CJ Durie for the coram

Dealing with overlapping claims in the region, the tribunal declined for the time being to make any determination on customary boundaries, but commented on the sort of issues such determinations raise. "What weight should be given to ancestral associations that have endured over numerous generations and what weight to the outcome of more recent battles? If more weight is to be placed on the luck of the last encounter, then what should be regarded as the final and determinative victory?" If a date were fixed there would also be a need to consider "whether battles were more indicative of aberrations than the norm, and whether the true test was who lived where, at the relevant time, and, having regard to the many ramifications of Maori whakapapa and the people s ability to connect with tribes on several sides, to whom did those people most align?" As for the relevant time, should 1800 (before western influences made any change), 1840 (British sovereignty), or 1865 (effective enforcement of British sovereignty in the Bay of Plenty region), be used, or even 1995 "in order to accommodate modern preferences and to recognise that customary society was always changing and has to be updated to meet current needs?" As for the proper approach to consultation where overlapping claims exist, for Ohiwa harbour and Whakaari (White Island), the tribunal recommended consultation with all runanga or trusts boards of iwi claiming overlapping interests.

Other Jurisdictions

NZ Maori Council & Ors v Attorney-General & Ors (No 3)

CP 942/88 HC Wellington, 28 April 1995. McGechan J

In this decision the court awarded most of the applicants costs for bringing the application for judicial review to prevent the transfer of broadcasting assets until Maori interests had been protected. Although they ultimately lost the case the Maori applicants had been "substantially successful", in stimulating protection for radio and achieving a $13 million funding undertaking for Maori television. McGechan J commented: "The case was substantially successful. It was brought in the public interest. It should not be regarded as relevant only to Maori. All sectors of society have an interest in the preservation of the culture of all; to the enrichment of all. It is better that sectors in society know it is possible to afford lawyers, and to use the Courts; rather than believe such is impossible, and use the streets. In a proceeding of wide significance, brought in the public interest, it can be appropriate for the public to contribute very substantially."

Greensill & Others v Tainui Maori Trust Board

M117-95, HC Hamilton, 17 May 1995. Hammond J

The plaintiffs (12 individuals), challenged the ability of the trust board to enter a deed of settlement with the Crown based on the Heads of Agreement signed in December 1994 on the basis that 13 of 16 trust board members had been invalidly appointed and that the board had no appropriate mandate for the prospective settlement. They sought injunctions restraining the board from claiming a mandate to enter into a settlement with the Crown and from entering into the contract of settlement.

Held: in essence, the plaintiffs were arguing that the mandate had to be determined by the kind of processes and mechanisms laid down by the Maori Trust Boards Act 1955. Yet the Heads of Agreement prescribed no particular method for procuring a mandate. The trust board could have proceeded either "on traditional Maori lines until some kind of consensus emerged", used Trust Boards Act procedures, or held a referendum. It chose a multi-faceted approach. There was no single right answer. The board utilised a method which was democratic, but also used traditional Maori processes to some extent. The overall nature of the response to securing a mandate was the important thing. It was noted that a number of hui had been held at which people had voted to support the negotiations and the proposed settlement, and a postal referendum was held among 11,600 beneficiaries of the board with over 4,600 votes returned, which supported the proposed settlement by almost 2 to 1. The overall percentage of votes cast may have been disappointing but was probably comparable with returns for local body elections. The plaintiffs claim accordingly foundered at the outset as there was no underlying or cognizable right which could be enforced. Nor was the court convinced the plaintiffs individually had standing to bring this application. A third factor was the nature of the agreement itself. The Heads of Agreement was a purely political document and as such not justiciable. Nothing was to be effected without an Act of Parliament. For the court to intervene now "would be an outright interference in what is nothing more or less than an ongoing political process; as opposed to a distinct matter of law" (Sealord case [1993] 2 NZLR 301 and CREEDNZ Inc v G-G [1981] 1 NZLR 172 followed).

Even apart from these considerations, the court would not have exercised its discretion to grant a remedy, firstly because there was "some force" in the submission arguing there had been undue delay by the plaintiffs, making these proceedings into a last minute "ambush". Secondly, no irreparable harm would be suffered by the plaintiffs, since the final settlement would be dependent on the passage of legislation. The invalidities in trust board appointments were minor, and remediable under the Trust Boards Act. The balance of convenience overwhelmingly favoured ongoing consultation and negotiation. Considering the overall interests of justice, there was a compelling national interest in moving forward and not "putting the clock back several years".

[ed: a Deed of Settlement between the Crown and Tainui iwi was signed in May, as has been widely reported (see Maori LR May 1995). The Waitangi Tribunal held a conference on 16 June to consider whether to give an urgent hearing to a claim by the Wi Taka whanau of Ngati Kohiriki challenging the settlement as it relates to Ngati Kohiriki lands in the Maramarua forest.]

Re Castle (deceased)

M1243/93, HC Auckland, 20 February 1995. Thorp J

The deceased made a will in 1988 in which he purported in several clauses to leave various interests in Maori freehold land to a trust. At his death in March 1991 however, he had not established the trust. A subsequent draft will, not executed, supported this conclusion. It provided that a trust of the kind intended in the 1988 will was to be established in the event the deceased died without creating it himself. The court was asked to determine the legal effect of the uncertain clauses.

Held: considering first whether there was another trust which could be shown to be the intended beneficiary of the provisions, a s438 trust created by the deceased before his death to deal with land of the family could not fulfil this requirement since it was concerned with management and development of the land, and not the particular matters referred to in the several clauses.

As to whether the will itself created the necessary trust, the clauses failed to achieve certainty as to theobject of the trust. The deceased, in referring to "members of the Castle family" had not established the class of beneficiaries sufficiently. Precedent showed that references to "family" are too vague and in this case it was impossible to know how far lineally or laterally the word was intended to extend (Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 and Re Brewis [1946] VLR 199 followed). Nor did the will indicate a sufficiently clear purpose for the trust. It may also have breached the rule against inalienability.

Accordingly the challenged dispositions failed and the property fell into the residue of the estate and passed to the widow. While this was regrettable, the sudden death of the testator before effecting changes to the will prevented any other conclusion. The widow, having in mind the intentions of the testator, might effect a settlement more in keeping with the wishes of the deceased than any court solution based on reconstruction and reformulation of the relevant parts of the will.

[This and other cases on dispositions of Maori land by will are discussed in the Taitokerau Maori Land Court Newsletter 23 June 1995 (Vol 7 No 6), which notes that, had the testator died after 1 July 1994, the widow would not receive the interests which fell to the residue, unless she were of the same hapu as the testator.]

Hauraki Maori Trust Board & Anor v The TOKM & Ors

CP 562/94, HC Auckland, 24 May 1995. Anderson J

The trust board requested that the court state a case to the Maori Appellate Court under s61 Te Ture Whenua Maori Act 1993 concerning tikanga Maori as it relates to fisheries. The trust board has argued that the Fisheries Commission had wrongly allocated deep water fishing quota for the 1994-95 fishing season to Tainui iwi in an area where they have no mana over the coastline.

Held: the High Court has jurisdiction to refer such a matter to the Maori Appellate Court (MAC). A liberal interpretation of s61 shows it can encompass questions of mana in respect of land and issues of mana and rohe in connection with waterways, including coastal waters and seas. It may be the only way such fisheries issues can be efficiently and appropriately determined. The Maori Land Court, the MAC in its appellate jurisdiction and the Waitangi Tribunal may have limitations in this area of Maori concern; the general jurisdiction of the MLC and MAC being limited to land and representation issues, and the tribunal to issues between the Crown and Maori.

However, the High Court declined to exercise its discretion and state a case for the time being, because in giving a decision on the question proposed the MAC might indicate a view on the concept of mana whenua mana moana, a matter which is the subject of current extensive debate and litigation. There would be a clear implication that an allocation of fisheries resources by the Fisheries Commission might be invalid if inconsistent with a concept of mana whenua mana moana. The High Court would be prematurely giving a weighting to one of the 3 general factors to which the Commission must have regard when granting assistance to Maori groups, namely: Maori custom, economic considerations and social considerations. "The debate is too important for it to be polished before its true shape is known." Current proceedings can continue on the assumption that the plaintiffs have mana of certain coastal areas where the Tainui iwi concerned do not. If in due course the correctness of those assumptions would be decisive to the plaintiffs claim, then it would be appropriate to state a case.

General

The Budget for the 1995-96 Financial Year

Minister of Finance. June 1995

From the Budget night speech: for Maori education, over the next 3 years; $14 million will be spent to establish 15 new kura kaupapa Maori; $7 million will be spent on running them, a further $5 million will be spent to increase the number Maori language teachers.

For the settlement of Maori claims, $525 million will be allocated over the next 5 years, in accordance with the fiscal envelope policy. This is the first time a government has allocated such significant funding for settlements five years ahead.

[ed: reinforces the impression that, like it or not, the fiscal envelope is the only game in town for the forseeable future.]

Provision for Maori over the past 3 years and projected spending

Replies Supplement 20 June 1995

This month the Hon KT Wetere received a reply to his question to various government agencies "For the 1995-96 financial year, is [the department] providing or implementing any Maori programmes or initiatives; if so, at what cost compared with the past 3 financial years, and what are the programmes and costs per year?". A useful collection of answers from many departments are contained in the supplement. Highlights are:

Agency                              Funding Per Year ($000)

                                    1995-96       1994-95   1993-94

Treaty of Waitangi Policy Unit      12,228        8,809     N.A.
(now Office of Treaty Settlements)

Waitangi Tribunal                   3,348         3,408     2,546

Maori Land Court                    6,531         6,641     6,528

Education: the number of students enrolled in kura kaupapa was 1081 in 1991, 2355 in 1994 and estimated to be 3030 in 1995. "Funding of programmes and initiatives applied directly to support of Maori education" was $70.4 million in 1992-93 and is projected to be $93.4 million in 1995-96. In addition, "an estimated $725.8 million is appropriated to support Maori students in all mainstream sectors of education through early childhood sessional funding, compulsory schooling and school transport and tertiary education and training. The latter includes TOPS funding."

Fisheries: the ministry has spent $230,000 between 1993 and 1995 on the development of regulations for customary fisheries, in addition to $150 million expended to since 1992 to fulfil the Sealords agreement.

Broadcasting: $12.9 million was spent in 1991-92 on Maori broadcasting, rising to an estimated $14.6 million in 1994-95.

Surplus Crown properties within Raupatu boundaries

Office of the Minister in charge of Treaty of Waitangi Negotiations 31 May 1995

Sales of surplus Crown properties within the Taranaki, Tauranga, Bay of Plenty and Mohaka-Waikare confiscated areas have been stopped. The Crown has accepted that further sales would prejudice negotiations to settle outstanding raupatu claims. Claimants often seek the return of these lands, and see continued sales as reducing the Crown ability to settle claims.

[Ed: this implements the Waitangi Tribunal report and recommendation of 5 May 1995 that no further sales of surplus lands in the Bay of Plenty should occur while claims are pending (Maori LR May 1995), but also goes considerably beyond it. The Office of Treaty Settlements advises that under this policy Crown agencies will continue to be able to "sell" surplus properties in a technical sense, but they will be purchased by the Crown itself and placed in a Crown Settlement Portfolio. Details of the funding for this policy and valuation matters are still being worked out. The raupatu boundaries are the confiscation boundaries gazetted under confiscation legislation (NZ Settlements Act 1863 and others) of last century. Two small areas not part of the recent Tainui settlement are also included. The announcement indicates that sales could occur if the relevant claimant gives consent. Identifying the relevant claimant could be problematic.]

Changes to Electricity Generation and Power Station Ownership

Media release 8 June 1995. Ministers of Finance, Energy, State-Owned Enterprises and the Environment

The government has made a decision in principle to establish a new state owned enterprise (SOE) to compete with the Electricity Corporation of NZ (ECNZ) from 1 February 1996. As part of the arrangements ECNZ will progressively sell six small hydro stations to regional power companies or Maori interests. These stations are not part of ECNZ s main hydro systems. They are Cobb, Coleridge, Highbank, Matahina, Mangahao and the Waikaremoana group of stations (Tuai, Paripaua, Kaitawa). Eligible buyers will be invited to make commercial bids for the stations. If no suitable bids are received they will be transferred to the new SOE at book value. "The creation of the new SOE will not alter the Treaty of Waitangi-related protections that currently apply to ECNZ s assets. In addition, the Treaty- related memorials currently protecting land associated with the six stations will remain in place following the proposed sales. Final decisions on both the establishment of the new SOE and the sale of small hydros will be made after appropriate consultation with Maori."

Reflections on the formal definitions of Maori

NZ Law Journal May 1995. Jeremy McGuire

Questions the usefulness of the term "Maori" as a descriptive category. Wonders whether the present definition based on ancestry is appropriate and whether qualitative criteria should be used such as knowledge of and participation in iwi activities, and evidence of a commitment to and participation in Maori culture. Questions whether Maori can be said to be tangata whenua of NZ when for most intents and purposes they have "effectively adopted and embraced traditional non-Maori culture such as capitalism and its incidents and a passion for non-Maori sports such as rugby league, rugby union and netball." Notes that human beings are notorious for labelling and classifying people into categories depending upon "how they look and what they are perceived, often misguidedly, to represent." Argues that the definitional question is becoming more acute in light of a developing resentment from non-qualifiers to benefits arising from the application of the principles of the Treaty of Waitangi by the courts and Parliament. Concludes that, "if a genuine difference between Maori and non-Maori groups is justified, that is if the distinction accurately reflects social reality, then it provides one justification for the current approach". [ed: To put this article in a context (which, with respect, it seems to lack), it may be worth recording that in April 1995 the Hon Phil Goff asked the Minister of Justice "In light of the fact that more than three quarters of all youth offenders in Northland last year were Maori, what actions, if any, is he and his department taking to address the causes of this problem?" The Minister replied: "The Department of Justice is part of a focus group on the issue of offending by Maori. ... This group is to report to cabinet on the factors that contribute to the disproportionately high levels of reported offending by Maori and the over-representation of Maori within the criminal justice system. It will identify existing policy and service delivery initiatives with the potential to reduce the levels of offending by Maori and the over representation of Maori within the criminal justice system and make proposals as to culturally appropriate policy development and service delivery mechanisms" (Replies Supplement 18 April 1995).]

Annual index

Māori Law Review Index December 1994 to November 1995

The Tainui Settlement

Full text of the form of apology from the Deed of Settlement between Her Majesty and Waikato-Tainui, signed 22 May 1995:1. The Crown acknowledges that its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels.

2. The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion, and at the devastation of property and social life which resulted.

3. The Crown acknowledges that the subsequent confiscations of land and resources under the New Zealand Settlements Act 1863 of the New Zealand Parliament were wrongful, have caused Waikato to the present time to suffer feelings in relation to their lost lands akin to those of orphans, and have had a crippling impact on the welfare, economy and development of Waikato. 4. The Crown appreciates that this sense of grievance, the justice of which under the Treaty of Waitangi has remained unrecognised, has given rise to Waikato s two principles 'i riro whenua atu, me hoki whenua mai' (as land was taken, land should be returned) and 'ko to moni hei utu mo to hara' (the money is the acknowledgement by the Crown of their crime). In order to provide redress the Crown has agreed to return as much land as is possible that the Crown has in its possession to Waikato.

5. The Crown recognises that the lands confiscated in the Waikato have made a significant contribution to the wealth and development of New Zealand, whilst the Waikato tribe has been alienated from its lands and deprived of the benefit of its lands.

6. Accordingly, the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and, with the grievance of raupatu finally settled as to the matters set out in the Deed of Settlement signed on 22 May 1995 to begin the process of healing and to enter a new age of co-operation with the Kiingitanga and Waikato.

 

Waitangi Tribunal

The Ngai Tahu Ancillary Claims Report 1995

27 April 1995. AG McHugh (presiding), MTA Bennett, GM Te Heuheu, IH Kawharu, GS Orr, DJ SullivanThis report deals with 117 "minor" claims raised during the hearing of the major Ngai Tahu land and fisheries claims, already the subject of substantial reports in 1991 and 1992. The claims range from alleged unjust dealings concerning thousands of acres, to loss of a few acres through uncontrolled erosion. Because many of these claims originated from oral testimony, without supporting research, and because of the sheer number of claims involved, the tribunal departed from normal procedure and further research on the claims by tribunal staff and the Crown was not presented at further hearings, but rather compiled into a draft report, which was circulated for comment.

Major findings

 As already outlined in the 1991 report, large scale Crown purchases in the 1840s and the provision of tiny reserves left Ngai Tahu virtually landless, holding only some 35,757 acres or one-thousandth of their former tribal estate.

 The "pitifully small" reserves were further eaten into by subsequent Crown actions. Takings for public works such as defence, roading, railways, scenery preservation, recreation, without adequate, or in most cases any consultation with the owners were an important source of land loss. Individualisation of landholdings through the operation of native land legislation, the objectives of which were criticised in theOrakei report, were also a major source of loss, facilitating alienation of what was intended to be the tribal estate. Other factors included drainage and related works destroying fishery reserves, and a statutory scheme for perpetual leases over some reserves which effectively took control away from the owners.

 Crown efforts to alleviate the almost total landlessness which resulted, including the South Island Landless Natives Act 1906, could not be regarded as "serious undertakings". Indeed the 1906 Act was a "cruel hoax", with poor quality land being allocated, and some allocations never actually being implemented.

 There is now an onus on the Crown to "restore a tribal endowment" to Ngai Tahu. This could include vesting in the tribe the ownership of Crown owned land, including conservation lands subject to management controls, and restoration of fishery resources. In negotiating a wider settlement both sides should have regard to localised Ngai Tahu concerns.

The report provides useful tables summarising findings and recommendations for the 100 claims considered (17 matters being put aside because of insufficient information). Important specific recommendations were:

 Some 6 acres of land on the Otakou peninsula at Taiaroa Head, taken under public works legislation for defence purposes and not returned when no longer required, should be revested in the former owners, subject to conditions regarding the protected albatross colony now located there (the initiative of the local council to vest a large part of the colony land in local Ngai Tahu was also supported);

 Some 122 acres at Maranuku near Kaka point township taken for a scenic reserve should be returned to the original Maori owners;

 Some 592 acres at Mount Hedgehope, taken for a television transmitter site in 1964, most of which was subsequently leased for forestry, should be returned to the original owners;

 Persons entitled to over 1658 acres of land under landless natives legislation in blocks allocated at Wanaka and Hawea, but which were never granted, should be given land of equivalent value elsewhere;  The Whakapoai block of 1600 acres in the Heaphy valley, set aside under landless natives legislation, but never granted, should be vested in descendants of those originally entitled;

 Waitutu incorporation, owning valuable indigenous forest land granted under landless natives legislation, should be permitted to market timber from the land, or be compensated for loss of milling opportunities. Costs to the incorporation to date of proceedings to gain permission to utilise the timber should be reimbursed;

 Surveys of the Port Adventure and Toitoi blocks, comprising some 17,400 acres and allocated under landless natives legislation should be completed and the lands vested in persons entitled;

 Tutaepatu lagoon of some 49 hectares at Woodend beach should be vested in Ngai Tahu ownership and jointly managed with the Crown;

 The Wainono lagoon on the Waihao River of some 335 hectares, vested in the Department of Conservation, should be developed in partnership with Ngai Tahu of south Canterbury as a traditional fishery resource. A similar arrangement should be reached over the Waikouaiti Lagoon of some 61 hectares near Hawkesbury, also owned and managed by the Department of Conservation.

Treaty principles considered

The tribunal reiterated its finding from the 1991 report that the Crown had a Treaty obligation to provide sufficient land for the present and future needs of the tribe in the initial purchases of NgaiTahu lands. The Crown also had an obligation to actively protect the meagre tribal estate which remained after these purchases. Because it heard no argument on the matter, the tribunal did not consider whether the guarantee not to disturb rangatiratanga might be overridden by the grant of kawanatanga when it came to compulsory takings for public works. An interesting development was a finding that Article 3 requires that Maori land owners must be afforded the same rights as non-Maori landowners. This comment was made in respect of consultation requirements for public works takings being less stringent for Maori than for non-Maori, and former Maori Affairs legislation which allowed "unproductive" Maori land to be taken over and sold, when no similar provisions existed for non-Maori land. In one claim relating to lands allocated for landless natives where ownership was still unresolved after 90 years despite almost continuous negotiations, the tribunal found a breach of the Treaty partly in the lengthy delay to achieve a settlement.

Public works legislation

24 claims concerned public works takings. While the importance of public works was not disputed, the tribunal found fault with this legislation which, until the 1970s, failed to provide for adequate notification and consultation with Maori where Maori land was proposed to be taken. Nor were Maori required to be notified, or lands returned, when lands were no longer required for the purposes for which they were taken. Whether the Treaty guarantee concerning rangatiratanga prevents any compulsory taking of Maori land was not argued, but the tribunal commented that Treaty principles indicate that, in future, compulsory acquisition of Maori land should be "exercised only in exceptional circumstances and as a last resort in the national interest", the interest taken should be less than the freehold, and if the freehold, then that question be determined by a body independent of the Crown. The tribunal also recommended that:

 the Public Works Act be amended to provide that it be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi;

 Crown and local authorities be expressly authorised to acquire a lease, licence, or other easement over, or enter into a joint venture arrangement in respect of Maori land required for public purposes, instead of acquiring the freehold of the land.

Conservation land

The tribunal made no comment on the government policy, contained in its recent settlement proposals, that conservation lands would be used in only limited cases to settle claims. In recommending areas of Taiaroa Head be returned to Maori, subject to existing conservation trusts and management, it found that area to fit the policy of returning only "discrete" sites. However the tribunal thought there was a lack of understanding on all sides of the legal options now available for joint conservation management regimes. It concurred with the views of a former Director-General of Conservation that Crown ownership is not a pre-requisite of protection of the national interest in conservation in any land. A suggested model was use of the Nga Whenua Rahui Kawenata regime under s77A Reserves Act 1977 allowing land to be revested in the Crown subject to subsisting interests. Under Te Ture Whenua Maori 1993, ss134 (Crown land can be revested in Maori), 338 (creation of a Maori reservation) and 340 (trustees can include persons from a local authority), such land can then be returned to Maori ownership, with a management regime for conservation values maintained.

Resource Management Act 1991

The report reiterated comments of the tribunal in the Ngawha geothermal report that more directive provisions concerning consideration of Treaty principles are required in the Resource Management Act. However, it considered that Act as laying the groundwork for proper recognition of Treaty rights and noted a "perceptible change in public attitudes" in particular with the Department Conservation.

Private land

For several claims the tribunal declined to make recommendations where there were validgrievances because the lands concerned were now in private hands. This included some local authority lands (a point some councils were eager to make), although the tribunal commented that Crown owned reserves whose management has been passed to a local authority under the Reserves Act do not fall within the private land exception provided for in the 1993 amendment to the Treaty of Waitangi Act.

Government reserved lands policy

The tribunal was critical of the recently announced policy to resolve claims concerning reserved lands under perpetual lease, saying it fell short of a just and proper settlement in requiring lessors to wait from 42-63 years for leases to terminate and to pursue compensation claim through the tribunal process, while lessees were guaranteed some compensation for the loss of their perpetual rights.

Maori Affairs legislation

The tribunal considered in detail one claim concerning a few acres alienated via sections 387 and 438 of the Maori Affairs Act 1953 which allowed land deemed to be "unproductive" to be compulsorily vested in the Maori Trustee.

No similar provisions existed for compulsory utilisation of idle European land so the legislation breached article 3 of the Treaty. This finding could be applied to many sites throughout the country where this provision was applied. In this case the land was however now in private hands, so no recommendation was made.

Future claims and hearings

The report ends the substantive hearing of the broad Ngai Tahu claim registered as Wai 27. However, the tribunal noted that some matters were incompletely considered in this report, and there is no bar on further incidental claims being received and heard from Ngai Tahu. The tribunal also indicated a willingness to hold a further hearing concerning remedies, should this be required. It urged the Crown and Ngai Tahu to make one further effort to forward their presently stalled negotiations.

 

 

Disposal of Crown land in the Eastern Bay of Plenty

5 May 1995, Wai 64 & Ors. CJ Durie for the tribunal members sittingIn July 1994 the tribunal began hearings of the claims of Ngati Awa, Tuwharetoa ki Kawerau and other groups in the eastern Bay of Plenty. In the course of proceedings, the claimants sought an early recommendation that Crown assets in the region not be sold pending the tribunal s final report.

Found: the hearings to date had satisfied the tribunal that these groups have "significant and compelling claims", mainly concerning confiscations last century. These claims are unique in that; confiscations were large despite few Maori being involved in fighting; lands of loyal groups were taken; no compensation has ever been received, as it has in other districts (including the establishment of tribal trust boards, which have given other groups a "competitive edge").

"It is now well established in Treaty law, that compensation should be payable where serious past breaches of the Treaty are proven, that the return of land where practicable, is an important item in any relief package, and that the Crown should not divest itself of properties without a protective scheme for recovery, where claims justifying substantial compensation are likely to be proven." The claims here were likely to be proven and justify substantial compensation.

While not determining the issue, the tribunal had doubts that conditions of a land banking system proposed by the Crown, and not yet accepted by the claimants, were "fair and reasonable" or consistent with Treaty principles. Conditions included a requirement that the cost of acquiring and maintaining properties be offset against claim settlements; that land cannot be withdrawn from the bank without Crown consent; that land be banked as is where is; that it is the first land used in any settlement; that a cap is set on the value which can be put in the bank; that the bank is reviewed every 12 months with the Crown reserving the right to cancel the bank and free properties for sale. The conditions as a whole create "impossible situations" for claimants. A studied selection is required yet cannot be undertaken when claimants must respond as properties are advertised for sale. There were no difficulties concerning iwi representation, and overlaps in tribal interests could be readily accommodated in the interim pending a final tribunal report. Accordingly the disposal of Crown assets in the area without adequate protective arrangements being in place would be contrary to the principles of the Treaty, and no sales should proceed at this stage.

 

 

Fisheries Allocation Claims Wai 447 and 485, Memorandum following second hearing

22 May 1995. CJ Durie for the tribunal members sittingThis memorandum concerned whether the tribunal had authority to hear the claim from urban Maori regarding the allocation of the Sealords fisheries settlement assets (Wai 485), and whether to proceed with a hearing in light of submissions that the commission had not yet settled any definite policy for allocation. Held: despite s6(7) Treaty of Waitangi Act 1975 which provides that tribunal may not inquire into or make any finding or recommendation on the Deed of Settlement or any enactment to the extent it relates to commercial fishing, "we consider that an inquiry into the urban claim does not or need not involve an inquiry into the Deed or a finding on whether the Deed is inconsistent with the Treaty. It calls only for an interpretation of the Deed, not an amendment to it. Alternatively, it is only to the extent that the urban claimants may call for what would amount to an amendment to the Deed that the Tribunal is unable to consider the urban claim." On the question whether references to "iwi" in the Deed could encompass urban groups, it was noted that the term was used in the Treaty Preamble to refer to Pakeha in the sense of "the people of a place". The equivalent for Maori "tribes" was "hapu". Therefore even though "iwi" is now commonly used to mean groups of common descent, it is arguable its application to urban groups would be a classical and not a new use of the term.

Counsel for the commission had argued a tribunal hearing should not proceed because the commission had not irrevocably committed itself to one model of allocation with mana whenua mana moana as a basic principle. The tribunal canvassed conflicting information on the point and found that it was arguable that "mindsets had developed or policies and proposals been sufficiently established to preclude the full and impartial examination of alternatives or agreement on basic principles." It was also arguable that a lack of agreement in fundamental issues might affect the work of the commission including interim distributions. Accordingly the hearing should proceed.

 

Other Jurisdictions

Wanganui District Council v Tangaroa & Others

CP 2/95, 16 May 1995, HC Wanganui. Heron JThis action was brought against 3 persons as "ostensible leaders or spokespersons", of the persons who, on 28 February 1995, had abruptly occupied Moutoa Gardens, a site of just over 2 acres in Wanganui. The Council sought a declaration as to title and orders for possession of the site. Ancillary orders for injunctions were also sought to direct people to leave the site and remove buildings and other items. The 3 representative occupiers took no part in the proceedings. The court appointed an amicus curiae to assist it, who put the defendants case "proactively" within the limits of that role and of time. The Attorney- General obtained leave to intervene.

Held: Early maps, missionary accounts and photos show Paikatore pa as a river bank site adjacent to and a little south west of the "marketplace" - the Moutoa Gardens of today. The pa was an area used for trade rather than being a permanent settlement and was close by but not within the confines of the triangle that represents Moutoa Gardens. The Gardens site was undoubtedly included in the purchase of land at Wanganui by Donald McLean in 1848, following an earlier NZ Company acquisition which had been investigated by Commissioner William Spain. The deed of sale placed no emphasis on the Gardens site, although making other reserves.

The Gardens became Crown land following the purchase. In 1880 the site was vested in the Borough of Wanganui. There was over this period a " singular absence of any suggestion that the land was occupied as a pah with accompanying marae" and photographic evidence suggested "quite the contrary" (pre- European times, about which there was no evidence, excepted).

There was however considerable trading by Maori and European on or about the area of Moutoa Gardens. A landing place was also required in conjunction with attendance at Native Land Court sittings. There was Parliamentary debate about the need for a landing site in this vicinity. Eventually an "impracticable" area was set aside on the river bank above the Gardens site. Documentation of these events also did not refer to a traditional pa with accompanying marae. In 1980 the Gardens were gazetted as a historic reserve.

The court noted that the repeal of s158 Maori Affairs Act 1953, which prevented challenges to Crown grants, allowed a wide inquiry into the history of this site. It was a matter of regret however that, being "private land", the site is excluded from the Waitangi Tribunal s recommendatory function, despite the large Crown involvement in its history.

Three possible attacks on the Council s apparent title were considered:

 that s79 Land Transfer Act 1952 (adverse occupation) applied; there was no evidence of actual occupation, but rather of sporadic and shared use of the site for depositing goods etc:

 that s81 Land Transfer Act 1952 (error or fraud in the title) applied; although the site was designated a marketplace but never used for one, neither the council or Crown were never called on to put it to this use, and such an argument goes to correction of title, rather than a challenge to it. Nor could a trust in favour of Maori use be established on the evidence:

 that common law aboriginal title had not been extinguished; even allowing for Commissioner Spain s promise to Maori that all their pa sites would be reserved, there was no evidence on the balance of probabilities that Moutoa Gardens were more than an extension of a temporary village on the riverbank, as one of the defendants had in fact admitted. Other pa were at the time clearly delineated on maps, and the area for Paikatore was marked as clearly outside the Moutoa Gardens. The Gardens came to be a site for multiracial gatherings of importance to all people of Wanganui. A Wanganui historian recalled no challenge to council ownership being recorded until 1995.

A mayoral letter to the police in March 1995 could not be construed as a licence, any temporary licence if it existed being well and truly revoked by this time. The Gardens had not been mentioned in two claims before the Waitangi Tribunal, one concerning the river and one Whanganui land, but there was no reason hearings of the land claim could not consider the Gardens, although having to stop short of making any recommendation concerning them. The court, while being aware of "overall treaty obligations the Courts have asked others to observe", rejected a submission that a final declaration as to title not be made, because of the need for finality of this urgent matter. However the finding that the council was the owner of the land was limited to the purpose of the proceedings, ie the finding as to title was not a determination of an application for relief under ss79 & 81 Land Transfer Act 1952.

As to remedy, the court noted past council efforts to meet regularly with a Maori consultative group, and afford Maori concerns a unique position among community concerns, and the lack of any reference to ownership issues in those consultations prior to February 1995.

Where the law is breached the court must grant remedies to litigants without fear or favour, and cannot weigh up the public acceptability of any order it might make, even if many desire a negotiated outcome. Accordingly, the council was declared the owner of Moutoa Gardens and granted an order for possession, making the present occupiers trespassers. The occupiers were injuncted to leave the land taking personal property and dismantling any structures.

[ed: since this case, the occupiers have of course left the gardens and dismantled structures, after negotiations with the police. A claim (Wai 505, received 12 April 1994) has been filed with the Waitangi Tribunal relating to the purchase of the Wanganui and Waitotara blocks, which covers the Moutoa Gardens. The tribunal is seeking further particulars and research will be required before the claim is heard (direction, 15 May 1995)]

 

 

Banks & Anor v Waikato Regional Council & Carter Holt Harvey Forests Ltd

A31/95, 20 April 1995 Sheppard JAn appeal against a decision granting a resource consent to harvest pine trees and construct temporary roads in 268 hectares of land on the Whangamata Peninsula. The forest was a former State forest, now under a Crown forestry licence containing conditions regarding waahi tapu and covenants to protect them.

Held: allegations that preparatory roading work, undertaken before the present application for a consent, had destroyed important sites, were overstated. Consultation with local Maori had been undertaken about those works and Historic Places Trust permission secured to alter sites. The present appeal should not be a retrospective challenge to that permission. For the present consent adequate consultation with tangata whenua had been undertaken. If there were conflicting claims to tangata whenua status in the area, the local council had no authority to decide these. The tribunal rejected the notion that reliable indentification of tangata whenua could be obtained from the claims register of the Waitangi Tribunal (the appellants having lodged a claim to the forest). Similar statements in Tawa v Bay of Plenty Regional Council A18/95 were followed.

The forestry company as applicants had talked to all who claimed an interest. There was no duty to consult about the preparatory works in relation to the present application for consent to harvest the trees. The tribunal adopted conclusions in the Tawa case that the council as consent authority could not consult with tangata whenua. Council staff had adequately reported to the council tangata whenua concerns.

After having earlier agreed to the granting of a resource consent, it was clear the appellants had had a change of mind and the appeal was designed to provide a vehicle for further negotiations to achieve more stringent conditions. In these circumstances the appeal was vexatious. Claims before the Waitangi Tribunal could not be taken into account either in proceedings before the tribunal or by the consent authority.Haddon [1994] NZRMA 49 and Greensill v Waikato Regional Council followed. The resource consent, containing 6 conditions specifically to protect Maori interests, was not inconsistent either with regional policy statements or district plans. Proposed amendments to increase the stringency of these conditions were all rejected, several because they looked to activities not governed or affected by the resource consent (eg a requirement for an archaeological survey over the whole of the 13,000 hectare forest). The tribunal cancelled as ultra vires a consent condition requiring ongoing compliance by Carter Holt with an agreement between them and local Maori, since the power of consent authorities to impose conditions may not be used to enforce private agreements, but only for public purposes. The term of the consent was extended by the tribunal to take account of delay caused by the appeal.

 

General

Report of the Representation Commission 1995

27 April 1995The commission largely confirmed the earlier boundaries for the 5 Maori seats except for allowing an objection of A Waaka and 193 others that the boundary between Te Puku O Te Whenua and Te Tai Tonga be adjusted to preserve the integrity of Ngati Kahungunu. Wairarapa is now fully within Te Puku O Te Whenua. Most of Horowhenua goes to Te Tai Tonga which now substantially encompasses Muaupoko and Ngati Raukawa. The boundary around the Shannon area was adjusted to allow unification of the Ngati Kahu iwi. The commission rejected an objection regarding the inclusion of the Chatham Islands in the proposed Te Tai Tonga electorate, ruling that tribal connections of the Chathams people with Taranaki were not the only relevant ones.

 

 

Deed of Settlement. Her Majesty the Queen in right of NZ and Waikato-Tainui

22 May 1995This deed implements the Head of Agreement document signed in December 1995 (see MLR Dec 1994-Jan 1995). Waikato-Tainui forgo full redress for raupatu (confiscation) losses estimated by them at $12 billion. A full apology from the Crown is laid out. Briefly, redress is provided in 2 forms:

 Settlement properties of some 19,040 hectares will be transferred to a Waikato Raupatu Lands Trust, a charitable trust established by the existing Tainui Maori Trust Board. Some properties will be subject to lease back arrangements. If the lease terms cannot be agreed an independent arbitrator can be called in.

 Establishment by the Crown of a Waikato Land Acquisition Trust which will have a capital sum of $170 million, minus the value of the 19,040 hectares settlement properties, and various sundry amounts (leaving by some estimates about $60-70 million). The capital will be transferred over 5 years. This trust will have a right of first refusal over freehold surplus Crown properties in the Tainui claim area held by various listed Crown agencies. Legislation will provide that this right will be noted on titles to these surplus properties.

The deed is conditional on legislation being introduced to effect many matters, including the removal of resumptive memorials on titles in the claim area, the cessation of the annuity to the Tainui Maori Trust Board (the Board is expected to be dissolved by legislation at some future time), discontinuance of other "overlapping" claims in the claim area. Tainui claims to the Waikato River (including marginal land strips adjacent to the river), remain, as do claims to West Coast harbours and the Wairoa and Waiuku blocks. Waikato-Tainui Treaty rights "including rangatiratanga rights" remain unaffected. The Tainui mandate through the Maori Queen is noted, and the term Waikato-Tainui is defined by a listing of 33 hapu.

 

 

Appeals to the Privy Council. Report of the Solicitor-General to the Cabinet Strategy Committee on Issues of Termination and Court Structure

5 May 1995. Crown Law OfficeThe S-G did not consult with Maori, but found most judges of the Maori Land Court opposed to abolition of the right to appeal, suggesting instead that the matter should be determined by Maori, perhaps by reference to the Waitangi Tribunal. However the S-G found abolition would have no practical impact on Maori opportunities to pursue claim settlements or on Crown Treaty obligations. If abolition occurred, provision should be made to replace present appeal rights from the Maori Appellate Court to the Privy Council with an appeal to the Court of Appeal.

[ed: Cabinet has since made an "in principle" decision to abolish appeals to the Privy Council]

 

 

Maori Reserved Land Consultative Working Group

10 May 1995. Minister of Maori AffairsGeorge McMillan, Peter Charleton, John Larmer, Paul Morgan, and Lyn Williams were announced as a group to provide comment to officials on technical matters concerning the implementation of the government policy to settle reserved lands issues. Among other matters, they will provide advice on the procedure that occurs in the event Maori lessors are unable to purchase lessee improvements at the end of 2 further lease terms (ie 42-63 years) and on "any other issues which might expedite the outcomes at no cost to the Crown". The group will report in July. Legislation will be introduced in September 1995.

 

 

Recent speeches on sovereignty

Minister in Charge of Treaty Negotiations Hon D Graham; "Over the years Maori have raised a number of arguments against the assumption of sovereignty by the British Crown. .... None of these arguments has any validity. The simple fact is that the British Crown s assumption of sovereignty, assisted certainly in part by the Treaty, unquestionably succeeded andit has as a matter of international law, lasted. In other words, what is, is. A revolution in New Zealand has occurred, ... 'Revolution rests upon what is done, not what is legal or necessarily moral or just'."PM Hon JB Bolger Gisborne 13 May 1995; "It must be clear that the Government will not entertain any division of sovereignty of Parliament, nor substantive power-sharing of a kind which would involve a Maori Parliament or separate legal or taxation systems. We do not recognise the right of any group of New Zealanders, ... to determine their destiny regardless of the state of which they are a part. We do not believe that the Treaty of Waitangi sanctions notions of Maori sovereignty arising from self-determination. This would be secession - the assumption of sovereign powers by a body which separates from the existing state. ... Understanding this, I need equally to say that the way that national sovereignty is actually exercised, through Parliament, is not a matter of absolutes. Its powers are delegated to other bodies and can be exercised in ways that mean, for certain activities, the parties involved substantially manage their own affairs, or co-manage them in association with the Crown."

Annual index

Māori Law Review Index December 1994 to November 1995

Maori Land Court and Appellate Court

In Re Waotu South 17 & Ormsby

237 Rotorua MB 250, 23 March 1995. Savage J

In this case the court reiterated the strict legal requirements placed on trustees, by requiring the repayment of salaries and excessive travelling expenses which trustees of this land block had voted for themselves, but which had not been approved by the court as the trust deed required. The excessive travelling expenses of one trustee in particular were found to be the joint and several liability of the trustees as a whole since payment was made with the other trustees consent. Payments up to $50 per trustee per meeting was retrospectively affirmed, in line with other trusts in the region, and pursuant to s73 Trustee Act 1956 (court may relieve trustee of liability where they have acted honestly and reasonably), as were some limited travelling expenses. The trustees were ordered to file with the court a strategic and management plan for the future of the trust.

Waitangi Tribunal

Claim by WM Kaa and others re Maori tertiary education

Wai 431, 5 April 1995. Smith J, Deputy Chairperson

In this memo the tribunal considered a request for urgent hearing. The tribunal noted that, despite rapid growth in student fees from the mid 1980s, the trend was for more Maori to be participating in tertiary education (1.75% to 4.7% between 1988 and 1994, and Maori women up 81% between 1990 and 1994). The tribunal observed that [a]pplications for urgency are taken as a means of prioritising claims for hearing but urgency should only be afforded where there is genuine need to receive a report and irreversible consequences may flow from any delay in processing the claim. The granting of urgency upon unsubstantiated or inadequate grounds could, because of the demands made on the tribunal to hear claims, result in a proliferation of requests for urgency to the detriment of the administration and management of the hearing processes. In the absence of adequate grounds to justify an urgent hearing, urgency was refused.

Claim by Rawiri Tooke and others and a claim by Matiu Tarawa

Wai 364 & Wai 496. March 1995

The tribunal has received two claims concerning the site of former Tamaki Girls College. Tribunal directions acknowledging receipt of one of the claims (Wai 364) record that further research is required before the matter can proceed to hearing and it is to be grouped with other Auckland-Hauraki claims for hearing.

Volcanic Plateau report

Memorandum-Directions 17 March 1995. Deputy CJ Smith

A research report on claims and potential claims in the Volcanic Plateau region has been completed by tribunal commissioned researcher Brian Bargh, as part of the Rangahaua Whanui project, which aims to provide the historical background to claims that have arisen or may arise in broad regional areas. The tribunal is seeking comments on the report by 30 June 1995.

Some new claims received

Colin Clark for Whanau O Hinemataiao Puhirere Inc representing the Ngai Tarewa hapu with rangatiratanga over land at Onuku and the Akaroa District has filed a claim objecting to the representative structure for Ngai Tahu proposed in Te Runanga O Ngai Tahu Bill 1993, in particular the concept of papatipu runanga (Wai 482). The claim alleges that hapu have a rangatiratanga outside the collective rangatiratanga of the papatipu runanga concept. The tribunal in directions has asked, in light of current remedies available, including submissions to the select committee, why the tribunal should proceed to hear the matter (In claim Wai 322 similar objections were raised, and the tribunal, after hearing submissions, declined to inquire into the claim because of alternative remedies available which might render a tribunal hearing premature.)

J Asher on behalf of Kurauia hapu has made a claim to 57 acres of public domain known as Tokaanu hot springs, administered by the Department of Conservation. The claimants allege the land and springs were arbitrarily taken and seek the return of ownership to a trust to hold the land for Kurauia hapu, with current uses to continue unhindered (Wai 490).

Toahaere Falkner and others have filed a claim alleging practices and policies of Bay of Plenty Polytechnic, including the appointment process of the chief executive officer, are in breach of the Treaty and prejudicial to Ngati Makamaka hapu and other iwi and hapu groups in the catchment area for the polytechnic (Wai 497). The polytechnic is said to be an agent of the Crown. In receiving the claim, the tribunal has noted it has only recommendatory power and cannot delay or prevent the CEO appointment (Memo-directions 13 April 1995).

Other Jurisdictions

Greensill & Ors v Waikato Regional Council & Anor

W17/95, 6 March 1995. Treadwell J, PA Catchpole, IG McIntyre

This was an appeal from a decision of the regional council to grant consents for an oyster farm on the foreshore at Paritata Bay, Raglan Harbour. There were several appellants including local Maori.

Held: the positive effects of the proposal, mainly mild economic benefits to the region, were outweighed by potential adverse effects, including intrusion into an area used on a modest scale as a gathering place for kaimoana. As to matters raised by the Maori objectors:

- The presence of claims before the Waitangi Tribunal can have no impact on proceedings under the RMA, until the Crown acts on any tribunal recommendations.

- The absence of Maori consent is not an automatic veto to applications under the RMA. Maori issues are one among several matters to be evaluated. The council had endeavoured to provide for waahi tapu, although ultimately not to the satisfaction of the objectors. The term ancestral lands in s6 does not import European ideas of land, including the concept of high water springs, which was alien to them.

- The definition in s7 of kaitiakitanga is unfortunately all embracing, so that there is a statutory definition for a word which embraces a Maori conceptual approach, and consequently the concept of guardianship in s7 is applicable to any body exercising jurisdiction under the RMA (Rural Management Ltd v Banks Peninsula District Council W34/94 followed).

- There is an obligation for territorial authorities to consult with the tangata whenua over proposed policy statements or plans (1st Schedule cl3), and the same may apply for a request for a plan change (1st Schedule cl25(2)(ii)), but possibly only where the plan is in the course of preparation. For resource consents, the territorial authority, when deciding whether a resourceconsent should be notified or not, may consult with those potentially affected by the exercise of the discretion, and may consult unilaterally with any party. Consultation may continue even after a decision not to notify has been made. An officer of the authority may be delegated to consult and make the decision whether to notify. These points arise from Worldwide Leisure Ltd (HC M1128/94).

- Where a decision has been made to notify a resource consent, because a public hearing is required before the authority, to preserve fairness, it may not unilaterally consult with any party, although its officers may do so. Applicants are required to provide information about persons the applicant has identified may be affected by the proposal, and any steps taken to consult with such persons (4th Schedule cl1(h)). If a paucity of information is provided the authority may commission a report on the application, which would include review of these matters (s92). In addition, if it is clear from the application that there are important submissions to be made, the council officer is then on notice that the hearing could be controversial, and should seek further details. Consequently, although there are no sanctions directed against applicants for poor consultation, if extensive consultation is not undertaken for a consent in a sensitive area, the applicant runs the risk of the authority postponing matters until further information is received. There is however no statutory compulsion under the RMA on an applicant or a council officer to embark unilaterally on consultation.

- In this case some consultation was undertaken, but consultation with local Maori was limited because they refused to allow the matter to be taken to a meeting, absolutely rejecting the idea of marine farming in the bay. Therefore, even if there were a statutory compulsion to consult (and there was not), the applicant had made "genuine attempts", and could not be expected to take the matter further. Noted, that in the context of tangata whenua, consultation may mean more than "having deliberations", and encompass "taking into consideration feelings and interests". It does not mean abandoning a project if deliberations do not appear fruitful.

- The Treaty of Waitangi (Fisheries Settlement) Act 1992 had no bearing on the matter of consultation here, although it prevented consideration of commercial fishing interests of the tangata whenua. The Act is a restatement of rights, and only affects the RMA where the Minister has acted under it to protect customary rights, eg by way of a gazette notice preventing the granting of marine farming licences. Noted however that if a joint commercial venture with local Maori had been proposed, the 1992 Act might preclude consideration of the Maori commercial interest in the fishery as relevant to a decision under the RMA.

- As to waahi tapu: "It appears that various members of the tangata whenua are entrusted with details of waahi tapu but that information is not generally shared with iwi or hapu. Thus a kaumatua may be aware of areas of importance within the concept of waahi tapu and may pass that information on to a person or persons whom he selects but the reasons for, and the importance of, any particular waahi tapu may not be generally known. The tangata whenua as between themselves accept without question the concept of waahi tapu and further accept without question the word of a person who has particular knowledge of a particular site or area. Thus if a kaumatua simply says that a place is waahi tapu then that is the end of the matter".

At the council hearing submissions were made in camera concerning waahi tapu. The council moved the boundary of the proposed farming area 50 metres further seaward. The Maori objectors said this failed to appreciate the waahi tapu concept as outlined above. The tribunal declined to order the applicant out of the hearing before it, and no further evidence of waahi tapu was led. Consequently, while recognising the Maori reluctance on this matter, the tribunal upheld the decision of the council, having no further evidence to consider, stating "that tangata whenua are not a decision making authority and cannot simply assert a proposition and leave the Tribunal bereft of evidence to enable an acceptable provision to be made for protection of waahi tapu."

- With regard to s8 (principles of the Treaty of Waitangi), regard must be had to evidence showing this was a customary Maori fishing ground.

[ed: this case makes some important comments about consultation with Maori under the RMA, and the treatment of waahi tapu issues]

Aqua King Ltd v Fleetwing Farms Ltd & Anor

W19/95, 28 March 1995. Kenderdine J, RG Bishop, JD Rowan

Two companies had applied for consents for marine farming over the same area and both had their applications declined by a district council. The tribunal here was being asked to decide which should have its appeal heard first. A factor the tribunal considered was delays occasioned to each applicant by requirements from the council for further consultation with Maori. Several points of interest were made: - The consultation required of an applicant under cl1(h) 4th Schedule RMA when filing an application is more than posting the application and seeking comment, which is simply dissemination of information and not consultation (Air NZ v Wellington International Airport CP 403/91 followed).

- Section 92(4) which permits a consent authority to seek further information from the applicant to give the authority a better understanding of the proposed project and its effect on the environment, includes the ability to require further consultation with iwi.

- The duty on an applicant to consult is separate from the duty of consultation with iwi required of a council officer when considering an application. The latter duty arises under Part II and principles of the Treaty of Waitangi.

[ed: this case adds to the comments in Greensill above]

Tawa & Ors v Bay of Plenty Regional Council

A18/95, 24 March 1995. Sheppard J

This was a Planning Tribunal report to the Minister of Conservation concerning an application for a coastal permit to extract sand for building aggregates, from Otamarakau Beach. Extraction would take place below high water mark. A hearings committee of the regional council approved the application. Mr Tawa and Otamarakau Marae Trustees appealed the decision on several grounds.

Held: personal meetings with Mr Tawa as representative of the trustees and an invitation for him to call a full meeting of trustees, which he declined to take up, constituted adequate consultation. Greensill v Waikato Regional Council (W17/95) was referred to as supporting the view that genuine efforts at consultation are all that is required and absence of consent is not determinative against an application. The council had also approached Mr Tawa about the application. Other local tribes had also been approached.

The presence of a claim before the Waitangi Tribunal did not affect the power to hear and grant the application. Nor would granting the application diminish the possibility of redress to Ngati Makino if their claim was found good, by revesting of the foreshore, and compensation for sand taken if need be. Comments to similar effect in Sea Tow Ltd (A129/93) referred to.

The council had not acted wrongly in considering the interests of other tribal groups claiming to have interests in the area. Once aware of those competing interests the council was correct in avoiding making any preference among the iwi in its consultation process. A condition of the approval given was that kaumatua of all 3 iwi be given the opportunity, once extraction began, to verify whether an area being mined contained waahi tapu or other sites of importance.

A concern that the council had inadequate resources to monitor Maori concerns was also dismissed for lack of evidence.

Turning to other matters, the mining, if carried on within limits and terms imposed re tangata whenua involvement, was consistent with the proposed regional coastal environment plan - which follows from the NZ Coastal Policy Statement.

The tribunal itself, in considering whether Treaty principles had been taken into account under s8, noted that the applicant was of Ngati Rangitihi descent and active on local marae, and said to be respectful of waahi tapu. The likelihood of bones being located in the mining area - below high water mark - was low. As to disputes about which tribe had mana over the beach area concerned, the tribunal should not have regard to disputes about which tribes properly exercise rights over areas, but focus on sustainable management of the resource. A statement in Luxton v Bay of Plenty Regional Council (A49/94) to this effect was followed.

Otorohanga Heritage Protection Group v Otorohanga District Council

A20/95, 16 March 1995. Bollard J

This decision, discharging an interim enforcement order, briefly records a compromise agreement over redevelopment of the Otorohanga Town Hall, which includes ongoing discussion with and input from Maniapoto people of the district. They will provide 2 representatives on a community trust responsible for design and development on the site.

Phares & Anor v TOKM & Te Runanga o Te Whanau Tribal Authority

CP389/94 HC, 23 December 1994 and 8 March 1995. Grieg J

In the 23 December judgment, the court refused an application challenging the allocation of leases of fisheries quota to Te Runanga on the grounds that the plaintiffs and the hapu they represented had not been given an adequate opportunity to make submissions to the Fisheries Commission. The court found that the dispute was well known to all parties and that time had been given for further late submissions. The court also noted that it was not being called upon to substitute its view on allocation for that of the expert tribunal (the commission), and that it would be inappropriate for it to do so. In the 8 March decision, the court awarded costs against the plaintiffs and in favour of Te Runanga (the commission did not seek costs), and rejected the plaintiffs arguments that the action was necessary to protect the interests of all parties, little or no disruption to quota allocation would have occurred because the plaintiffs deliberately limited the relief sought, and a costs order on the plaintiffs would make reconciliation within the Apanui rohe more difficult.

[ed: the commission in its latest newsletter comments that the case is a warning to groups challenging allocation of leased quota that they can expect to face bills for court costs if their actions are unsuccessful]

Mangatu Inc & Ors v Valuation NZ

LVP 22/95-33/95, 10 March 1995. MacLean J, EC Bowis, MG Cotterill

Various Maori incorporations on the East Coast owning collectively 73,007 hectares of Maori freehold land valued at over $40 million, objected to a 3 yearly re-valuation by Valuation NZ, on the basis that Te Ture Whenua Maori Act 1993 imposed restrictions on alienation which should have been taken into account in the re-valuation, which was fixed on the willing seller/willing buyer approach.

Held: rejecting the appeal, that if, when land is sold, the buyer takes the land free of restrictions, then value is not affected, Thomas v Valuer-General (1918) NZLR 164. Other cases quoted where restrictions affected valuation (Valuer General v Trustees Christchurch Racecourse HC AP343/92 - a private Act was required for a sale: Wanganui Racecourse Trustees v Valuer General CNZ Valuer Vol 25 1982 Report - ministerial consent required for a sale of reserved land), could be distinguished because the restrictions were more severe than those affecting land under Te Ture Whenua Maori Act where there is a "clear statutory mechanism for processing of proposed sales and obtaining consent." It was too early in the process of application of the 1993 Act for the tribunal to be convinced that the Act will have any effect in preventing sales of Maori freehold land to non-Maori where there is no-one in the preferred class of alienees interested and the necessary majority of the shareholders has been obtained. There is no persuasive evidence the Maori Land Court will use its discretion in such cases to not permit such sales. Accordingly the constraints under the Act are not a charge in terms of the Valuation of Land Act 1951 s2 which defines "land value" as the value an owners estate would realise on sale if unencumbered by mortgage or other charge. Noted also that Maori incorporations can mortgage their lands with little restriction under the 1993 Act.

Shortland v Accident Compensation Corporation

269/94, ACC Appeal Authority, 12 September 1994. PJ Cartwright

The appellant injured his knee in a farming related accident. He was awarded a sum in compensation by the ACC, which, on appeal, was increased by a "modest" amount to take account of a "loss of mana" through being unable to undertake marae associated responsibilities, which the ACC accepted made the effects of the injury more serious than for some other accident victim (it was argued that the injury meant the appellant could not stand on each occasion visitors entered the meeting house, which marae protocol demands). The appellant here sought an application for leave to appeal the authority s decision as a matter of law to the High Court.

Held: granting the application, that there was a question of general importance to be considered, namely, how much weight cultural factors should be given in the exercise of discretion to grant further compensation under s79 Accident Compensation Act 1982, and, if mana had been lost, whether that loss could be one of degree (the appellant argued that if a loss of mana was admitted, mana could not be lost in part only, and maximum compensation must be paid).

[ed: this case is noted in light of the recent out of court settlement reached with the appellant. The door therefore remains open for future similar cases on cultural factors]

General

The Maori Assembled Owners Regulations 1995

1995/83. 18 April 1995

These regulations cover all aspects of meetings of assembled owners, including appointment, objections to appointment, and voting powers of proxies; postal voting and objections to postal votes; and the conduct of meetings. To consider and pass a resolution to sell land, a quorum and vote in favour by the owners of 75% of the beneficial freehold interest is required. For leases, the percentage varies with the term of the lease:

Term             Quorum and vote in favour required
More than 42 yrs 75%
21-42 years      50%
15-21 years      40%
7-15 years       30%
Less than 7 yrs  20%

A resolution to incorporate requires a quorum and vote in favour by only 15% of the beneficial ownership, all other resolutions require a quorum of owners representing 40% of the beneficial ownership to consider the matter, but not being less than 10 owners or one quarter of the owners (dead or alive) whichever is less. To pass the resolution, those voting in favour must hold a greater aggregate share in the land than those voting against (cls32-35 & cl45). The regulations also provide for meetings to consider notices of intention to exercise a first right of refusal from persons in the preferred classes of alienees, where there is a proposal to alienate an interest to persons outside the preferred classes of alienees. Clause 43 provides that the meeting will decide upon fair and reasonable terms and conditions for the alienation, then invite persons from preferred classes who have earlier filed notices of intent, to make an offer on those terms and conditions. If they do, the meeting closes at that point. The regulations replace the Maori Assembled Owners Regulations 1957.

[ed: these are important and long awaited regulations for conducting business under Te Ture Whenua Maori 1993. Provisions concerning consideration of offers by persons from the preferred classes of alienees may be contentious and will require vigilant chairpersons to make them work effectively and avoid litigation]

Adoption Amendment Act 1995

1995 No 4. 23 March 1995

A short amendment altering the definition of social worker to include, where adoptions of Maori children are contemplated, members of the Maori community nominated by the Director-General of Social Welfare.

Maori Purposes Bill 1995

No 78-1. Hon John Luxton

This bill would make minor amendments to several acts, the most substantial being amendments to Te Ture Whenua Maori Act 1993 to make provision for forestry rights, as defined in the Forestry Rights Registration Act 1983. It is proposed to remove the requirement that the Maori Land Court confirm a grant of a forestry right where the grant is made by a Maori incorporation or trust constituted under the 1993 Act. A special resolution of shareholders of an incorporation would be required where the forestry right was for a term exceeding 21 years. The bill also proposes removing the power of the chief executive of Te Puni Kokiri under the Maori Affairs Restructuring Act 1989 to make discretionary advances or other assistance to any Maori for the purposes of assisting them in any enterprise. It also proposes removing the power to appoint honorary community officers under the Maori Community Development Act 1962. Changes to the Maori Trustee Act 1953 are also contemplated, so that unclaimed money held in the Common Fund of the trustee may be put into the General Purposes Fund if no claim to it is made after 12 months. Other minor amendments concerning these funds would also be made. Submissions close 26 April 1995.

Crown Pastoral Land Bill 1995

No 86-1. Hon Denis Marshall

Among other matters, this bill provides that pastoral leases and occupation licences (originally granted under the Land Act 1948) may be reviewed by the Commissioner of Crown Lands with a view to their sustainable management (cl20), including the restoration to full Crown ownership and control of land which has high inherent values (ie natural resources and recreational, cultural and historical values - cl2), and the freehold disposal of land "capable of productive use". Appropriate public rights of access and enjoyment are also to be created over these lands. When carrying out these reviews the commissioner is to "take into account", "to the extent these matters are applicable", the objects outlined above and "the principles of the Treaty of Waitangi" (cl21). Preliminary proposals are to be developed by the commissioner with the holders of leases and licences, then they must be notified, including notification to the iwi authority of the area (within the meaning of the RMA 1991). The commissioner must also consult with the iwi authority (cl25). The commissioner may then put a substantive proposal to the lessee or licensee, but only after having considered, all written submissions and, "all matters raised by the iwi authority ... during consultation" (cl27).

[ed: this bill institutes a long awaited review of large South Island pastoral properties under long term leases and licences, and has important implications for the settlement of the Ngai Tahu claim. Submissions close on 26 May 1995]

Claim Settlement Proposals - recent comment

Rt Hon JB Bolger: ... the Government has extended, at Maori request, the date for the closure of submissions on the settlement package from 19 May to 31 August 1995. The invitation to Maori claimants to sit down with the Government and negotiate to resolve their claims is still on the table. .... The Government has not asked Maori to accept $1 billion or any other figure. The Government has said that it is prepared to vote $1 billion over a number of years to the Crown s negotiators to negotiate with Maori (NZPD 14 March 1995 p6049).

Moutoa Gardens - special debate

Hon DAM Graham: The Waitangi Tribunal completed hearings on the river aspect of the Wanganui claim, Wai 167, in September 1994. Its report is expected in May 1995. The lands aspect of the Wanganui claim is not at present scheduled for hearing by the Waitangi Tribunal before July 1995. Research is underway by the claimants and it is uncertain when this part of the claim will be ready for hearing. The claim has been the subject of direct negotiation with the Crown. On the release of the report from the Waitangi Tribunal, negotiations are expected to resume on the river aspects of the claim and on the completion and consideration of the claimants research into the lands aspects of the claim. .... I am not sure whether the people who are occupying the gardens at the moment are the same people who are pursuing the claim before the Waitangi Tribunal. But if they are not, there is nothing to stop them from filing a claim .... My advice from the tribunal staff is that the river claim in fact includes the river banks. As the gardens are part of the banks, one would expect the claim [Wai 167] to include that as well (NZPD 16 March 1995 p6204).

NZ Universities Law Review

Vol 16 No 2 December 1994

Contains two articles of interest: - "'The Queen s Sovereignty Must be Vindicated'": The 1840 Rule in the Maori Land Court", by Bryan D Gilling (p136). Traces the origins of the the 1840 rule, which was closely related to the issue of sovereignty and maintaining the Pax Britannica. Also notes it was not rigorously or consistently applied particularly in early court determinations, he suggests partly because the court was a highly politicised institution, with close links to the native department and its concerns.

- "Maori and the Health Reforms: Promises, Promises", by Stephanie Milroy and Annie Mikaere (p175). Traces a history of Maori health including the epidemics after early contact with Europeans, through to modern health reforms. Concludes that current reforms are failing to provide the Maori right to have their standard of health restored to a level comparable to that of the healthiest peoples in the world, and to be in control of that restoration process. Currently they are slotted into a system in which Pakeha control and values predominate. Suggests a more rational approach is an autonomous Maori health structure with its own budget and accountability to iwi.

NZ Recent Law Review 1994 Part IV p376

"Constitutional Law" by FM Brookfield

Looks at developments in law since 1994, from the PC decision in NZ Maori Council v A-G (Broadcasting assets) case, Te Runanganui o Te Ika Whenua v A-G concerning claims over rivers, dams etc, through to determinations on the electoral option issue before the Waitangi Tribunal and High Court. Notes that the case of Tavita v Minister of Immigration [1994] 2 NZLR 257 in which the Court of Appeal affirmed the need for Ministers to have regard to international obligations in immigration matters, may strengthen the case for the courts to recognise a presumption that Parliament will not legislate contrary to obligations raised by the Treaty.

Victoria University of Wellington Law Review

Vol 24 No 4 Dec 1994

Contains two articles of interest:

- "Custom law: Address to the NZ Society for Legal and Social Philosophy , by Chief Judge ET Durie (p325). A call for a comprehensive study of Maori law on a legal and anthropological basis, and a brief listing of the major features such a study would be likely to find. "... it is the experience of the Waitangi Tribunal that reliance on expert witnesses in ad hoc situations can produce uneven results. The presentation of generalised opinions by Maori elders and scholars not experienced in legal analysis also leaves the ultimate interpretation to untrained adjudicators without access to a coherent lego-anthropological text." - "The Treaty of Waitangi and the Sealord Deal" by Justine Munro (p389). Possibly the most thorough commentary on the fisheries settlement published to date. It concludes that the deal was a pragmatic response to an immediate need, but trusted in uncertain economic outcomes and failed to ask the hard questions which are the building blocks to legitimacy. All involved acknowledged the settlement was not thoroughly in accord with Treaty principles, and it deviates in important respects from those principles. The deal is argued to be an illegitimate extension of kawanatanga, because Maori are brought under the Crown s vision, exchanging a Treaty right for a Crown received title, demonstrating a Crown inability to accept legal pluralism. With regard to rangatiratanga, the deal follows the Crown approach of settling on the basis of compensation for rights lost, with a failure to focus on the objective of tribal restoration. The value of quota could drop, resource rentals for use of quota could rise, and quota requires conversion, with resources many iwi do not have, to produce a viable economic base. It is argued that the Crown also has responsibility for ensuring relativities among tribes. The settlement attempts to limit Crown liabilities. Overall the settlement represents a wrong turn , and public debate is required over principles appropriate to future settlements. [ed: many of the points raised are relevant to the debate over the current claim settlement proposals]

Annual index

Māori Law Review Index December 1994 to November 1995

Ngai Tahu, forests and Waitangi Tribunal resourcing

The Waitangi Tribunal this month issued a memorandum with significant implications for the Crown s current claim settlement proposals (Memorandum re Ngai Tahu claim, Wai 27, 17 March 1995).

In late December last year, the Ngai Tahu claimants filed papers stating that negotiations with the Crown over the settlement of their claim had broken down. They asked the tribunal, which had already made findings and recommendations on their land claim in 1991, to hold a further hearing on the issue of relief. Ngai Tahu asked in particular that the tribunal use its compulsory powers and make binding recommendations that all Crown forest licensed land within the Ngai Tahu rohe be returned to them (pursuant to s8HB Treaty of Waitangi Act 1975). Such a recommendation would affect many thousands of hectares in the South Island.

In a 13 page memorandum, the tribunal chairperson turned down the request for a full hearing on relief, on the grounds that the tribunal lacked the budget to undertake a hearing which might raise complex issues, and that substantial resources from the tribunal s meagre budget had already been expended on the Ngai Tahu claim since hearings began in 1987. The situation had been reached where further hearing time for this one iwi could detrimentally affect the chances for hearing and settlement for others.

The memorandum dealt at length with historic underfunding of the tribunal ( the lack of money has considerably affected progress ) and the rivalry among iwi for hearing time and research resources that this had engendered. The chairperson noted that currently claim hearings are being postponed or cancelled because of the financial situation.

The basic message, if the Government needed to hear it again at the moment, is that budgetary stringency in this area needs to be rethought, or else tensions will arise which may make claims even more difficult to settle.

Maori Land Court and Appellate Court

Paehinahina Mourea Trust

237 Rotorua MB 114 7 February 1995 Savage J

Application under s244/1993 for an order increasing trustee meeting fees. The proposed increase was endorsed at an annual meeting with beneficiaries.

Held: the application should be rejected as the financial condition of trust was parlous. The trustees had shown a propensity to become involved in commercial adventures not related to the use and administration of the land (lending money to a hotel in financial difficulty, attempted investment in a casino, contemplated purchase of time shares in a hotel, purchase of life insurance for trustees, contemplated investment in a white water rafting venture).

Unique to Maori land law is that legal owners rights are vested in trustees when the owners are not under a disability and may not have consented to or even oppose the creation of the trust. Accordingly special sensitivity is called for on the part of trustees, who are often beneficial owners also. There is a special duty to take expert advice where large or unusual financial projects are contemplated.

Trustees must not profit from their trust and generally are not entitled to renumeration. Exceptions are provided by s237/1993 or s72 Trustee Act 1956 which allow for payment of a commission in certain situations. Ahu Whenua trusts are often businesses of some complexity and it is proper that trustees be paid.

Looking to s72(1)(A)/1956, the level of payment in this case should be set looking to nine factors: the basic principle that trustees are not entitled as of right to renumeration, but should not lose it by their labours; the effort, knowledge and ability of the trustees; the nature of the obligation and the business; the past success of trustees; trustees loss occasioned by holding that office; parity between individual trusts in the area; ability of the trust to pay; efficiency of administration of the trust (eg no. of meetings held); views of the owners (here a meeting ratified an increase, but less than 5% of the owners by number (2500) were present).

[For all the criticism of the trust, the increase sought was from a mere $105 to $150 per meeting. Apart from its less successful "adventures" the trust was involved in mining and forestry ventures and commercial leases. The highest meeting fee for any trust known to the court was $250 for a successful farming operation]

In Re Proprietors of Mangakino Township Inc

Rotorua MB, 3 March 1995, Savage J

Section 254/1993 provides that Maori incorporations under the Act may not grant leases "for a term of more than 21 years" without a special resolution of shareholders. The MLC registrar at Rotorua was advised that the Mangakino incorporation was intending to enter a lease for a total period, including rights of renewal, exceeding 21 years. No special resolution had been passed. The court advised the incorporation it would, of its own motion under s280(3)(c)/1993, proceed to consider whether an investigation by a person appointed by the court should be made. A pre-hearing conference determined that while the intended lease would not proceed, the incorporation had granted other leases whose total term, inclusive of renewals, exceeded 21 years, in the belief that s254 referred only to the initial term of a lease.

Held: an investigation should be held. Applying statutory interpretation principles, most recently reviewed in Commissioner Inland Revenue, the Alcan NZ Ltd (CA 150/93, 31 May 1994), s254 on its face was capable of more than one interpretation, however the mischief Parliament sought to remedy was long term leasing without the owners consent. The incorporation s interpretation of the section would make it possible for leases without the owners consent to be made including renewal rights potentially alienating the land for hundreds of years. It had to be remembered that beneficial ownership remains vested in shareholders of an incorporation (s250/1993), and that s2(1)/1993 provides that the Act is to be interpreted to further the principles set out in the Preamble, which includes the principle of promoting the retention of Maori land in the hands of owners. Accordingly, "21 years" in s254 refers not only to the initial term but to any further terms in the form of rights of renewal.

A retrospective special resolution would not remedy the existing unlawful leases, nor an amendment to the objects of the incorporation. Section 2(2) provides that the court must further the objects of the Act when deciding whether to exercise any power under it. The objects of the Act include facilitating the retention, use, development and control of Maori land by the owners. Accordingly an investigation should be undertaken, with the Registrar as the investigating officer.

Waitangi Tribunal

Kiwifruit direction

Wai 480, 15 March 1995. Deputy CJ Smith

After a conference of parties, the tribunal gave directions for an urgent hearing of this claim, noting that urgency in the context of tribunal hearings should not be given its true dictionary definition but refers more to prioritising claims for hearing. A final report was required in time to remove uncertainty regarding marketing of the 1996 crop. The tribunal found difficulty fixing a hearing date. Budgetary constraints, including imposition by the government of a 3% saving requirement, had already resulted in a number of hearings in the current fiscal year (ending June 1995), being abandoned. In addition, the Federation of Maori Authorities and Wakatu Incorporation had notified that they were affected by the claim and required time to determine their stance in relation to it. A hearing date should be fixed at the earliest opportunity after 30 June 1995.

[ed: these directions, and other directions noted this month (see below and front page), suggest a trend for the tribunal to have its ordinary hearing schedule determined by consideration of urgency requests. Given this trend and limited tribunal resources, urgent hearing may have an entirely new meaning by the end of 1995]

Interesting claims recently filed

Wai 462: Joe Oneroa and others made a claim concerning the Crown acquisition of Maungataniwha and Raetea forests in North Auckland and also the aerial drop of 1080 poison for possum control. No request for urgency was received. The tribunal asked the claimants to advise if they wished to proceed, given that the aerial drop has finished.

Wai 467: Noel Akapita and another, descendants of Rangituhia, Rangiteauria and Uenukumanawawiri, claimed that a block of 5,180 within the Tongariro National Park, reaching to the summit of Ruapehu on the south eastern side, remains Maori customary land since it was never passed through the Native Land Court.

Wai 473: claim by Tom Hemopo on behalf of Te Taiwhenua o Whanganui A Orotu, objecting to a failure to consult Maori in the preparation of a taskforce report for Health Care Hawkes Bay Ltd, which recommended rationalising health care in the region by establishing a regional hospital in Hastings, with minimal services provided at Napier.

Wai 477: claim by Ian Proctor that various provisions in tax legislation concerning the keeping of business records either require English only records be kept, or otherwise make no provision for Maori language to be used.

Wai 480: claim by Sir Hepi Te Heu Heu that the draft Conservation Management Strategy for the Tongariro/Taupo Conservancy fails to give effect to the principles of the Treaty of Waitangi as required by the Conservation Act 1987. After a conference, the claim was afforded urgency. However, the fixing of a date for hearing is dependent on the Minister of Conservation s response to a request to extend the time for consultation on the strategy under s17F(j) Resource Management Act 1991.

Hikaia Amohia on behalf Ngati Haua, Tama Upoko, Hinengakau, Ngati Tupoho, Ngati Rangi

Wai 146, 20 February 1995. Deputy CJ Smith

The claimants filed a request for an urgent hearing of that part of this claim concerning a former marae site in Taumarunui, now the proposed site of a new police station. The tribunal stated "Notice is given that the Waitangi Tribunal has established a policy that no application before the tribunal will be heard while the applicants or any person claiming through them or supporting them are in adverse occupation of any land the subject of the application. It is a condition precedent to the hearing of a claim for urgency that the Maori occupants of the land vacate the land." Although the tribunal had no authority to impose an injunction to prevent building work it hoped all building would halt pending determination of the urgency claim. A date was set to consider whether urgency should be given. At the conference held on 10 March to consider urgency, the tribunal adjourned further proceedings until 27 March to allow time for Cabinet to consider giving approval to an agreement between the claimants and the police.

[ed: This stated policy has implications for other protests and any planned protests through the occupation of land. It would seem to rule out the tribunal presently hearing any claim concerning the Moutoa Gardens, currently under occupation in Wanganui, while that occupation continues, although it might still hear an application for a date to be set for an urgent hearing in such a case]

Memorandum re Fisheries Allocation Claim

Wai 447, 10 March 1995, CJ Durie

In the ongoing fisheries allocation saga, this memorandum arranges a conference to set an urgent hearing date for this claim and outlines the issues the hearing might address. The tribunal is proceeding to hearing in light of a High Court minute of 7 February 1995 in which Anderson J indicated that the High Court would not adjourn its proceedings pending the outcome of a tribunal hearing, but offered no other advice to the tribunal. Anderson J in his minute also commented "[t]his Court on various occasions has noted in the course of conferences and applications that the type of broad and important constitutional issues being raised by these proceedings might well be an indication for rules or statutory provisions allowing this Court to sit with assessors with mana and learning in matters Maori".

The tribunal memorandum notes that the issues and remedies sought before the tribunal are different in any event and can be heard in a comparatively brief timespan. However the tribunal urgent hearing, if it proceeds, will now have to consider a claim filed by the Manukau Urban Authority and other urban Maori groups, arguing, among other things, that there has been a failure by the Crown and the Treaty of Waitangi Fisheries Commission to establish a system to protect the rights of urban Maori (filed 22 March).

Other Jurisdictions

Taiaroa & Ors v Minister of Justice & Chief Registrar of Electors & Anor

CA 201/94, 9 March 1995. Cooke P, Richardson J, Casey J, Hardie Boys J, Gault J, McKay J, Sir Gordon Bisson

The Court of Appeal here rejected unanimously an application for conditional leave to appeal to the Privy Council the judgment in the electoral option case on 23 December 1994. In the opinion of the Court of Appeal, the Privy Council would not be considering a question of "great general or public importance" as required by Rule 2(b) of the Order in Council 1910 concerning Privy Council appeals. Rather, the Council would be examining only the reasonableness or otherwise of the steps taken to publicise and explain the option to Maori, which was a matter of fact and degree, not of law or principle. The court added however, "[i]t is preferable that their Lordships ... determine, if called upon to do so, whether they consider the question an appropriate one for them. Moreover the appellants should be able to apply to their Lordships for special leave relatively simply and relatively inexpensively, whereas the full costs of an appeal would be very heavy."

[ed: this seems to be an invitation to seek special leave directly from the Privy Council. In another application for conditional leave, Auckland Casino Ltd v Casino Control Authority and Others (CA 181/94, 7 March 1995), the Court of Appeal similarly found no question of general or public importance and rejected the application. The Auckland Casino Ltd consortium included a Maori partner, and allegations had been made in earlier proceedings of a failure by the control authority to properly consider Maori interests (see MLR August & October 1994)]

Ngati Rangatahi Whanaunga (Assoc) v Planning Tribunal & A-G (on behalf of the NZ Police)

CP31/95, 13 February 1995. Neazor J

The applicant association had applied for review of a Planning Tribunal decision to cancel an interim enforcement order preventing work commencing on the Taumarunui police station site (see MLR February 1995). The appellants sought to have the interim enforcement order reimposed and work halted until their full case for an enforcement order under the RMA could be heard by the tribunal. In these proceedings, they sought a declaration preventing work commencing while the High Court considered the application for review.

Held: the declaration should not be given. There was no certainty of the success of the application to the High Court, it not being readily apparent that the Planning Tribunal erred in its decision. Damage to the applicants interests would not be irreparable if the work proceeded in the meantime (if human remains were found it was agreed by the police that work would stop, other claims that the environment generally would suffer were broad and put too highly). The applicants were seeking to use the High Court to protect the efficacy of the Planning Tribunal process. The court should not intervene to broaden the battlefield of litigation in this way.

[ed: An interesting fact emerged in these proceedings. The police station is to be built on 3 parcels of land, one of which is subject to a memorial under s27B State Owned Enterprises Act 1986, which enables the Waitangi Tribunal to order the return of that land to Maori should it judge the claim to be well founded. This parcel, originally taken under old public works legislation, was not purchased by the police (from Government Property Services) till 1990, with the s27B memorial attached. While the police were entitled to purchase the land with the memorial, it is a pity the implications of the claim were not thought about in advance. If the claim is upheld by the tribunal, the government may be obliged to order that part of the police station complex should be returned to the claimants. One can therefore understand the claimants concern to have their claim dealt with before construction begins]

Purification Technologies Ltd v Taupo District Council

W10/95, 1 February 1995, Sheppard J

The tribunal was asked to consider whether certain groups and persons before it, not being parties to an appeal, nevertheless had standing to appear. One of the groups was a local marae committee claiming to speak for tangata whenua of the district.

Held: the RMA provides at s274 that persons having an interest greater than the public generally may appear in proceedings before the tribunal and that this regime is tighter than that applying under old planning law. If the marae committee had evidence to call bearing on the issue of the relationship of Maori and their culture and traditions with their ancestral land, that would give them an interest in the proceedings greater than that of the public generally.

[ed: reiterates again the special emphasis the RMA gives to Maori concerns. The ability for the Maori group to gain standing is the greater when it is considered that groups such as Greenpeace and Friends of the Earth were refused standing in this judgment. It is possible an appeal by those groups will be taken however]

General

Te Reo O Te Tini A Tangaroa. Newsletter of the Treaty of Waitangi Fisheries Commission. No 23, February 1995

In preparation for allocation of pre-settlement assets, the Commission (TOKM) is gathering information about iwi, and in the process laying down conditions defining iwi status and representation.

Iwi status: "TOKM has outlined the conditions necessary for validation of an Iwi. Increasingly, though, it is relying on the criterion, "an existence traditionally acknowledged by other Iwi as the final benchmark. So, if all neighbouring Iwi deny the iwi status of a claimant group, then TOKM will consider removing that purported Iwi from the final list of Iwi. (After four years consultation with Iwi, TOKM is confident that no "new" Iwi will emerge." Iwi representation: "it is not uncommon for more than one group to say it has the mandate to represent a particular Iwi. Usually this arises when a hapu or whanau group is set up in opposition to the current iwi organisation because its members, rightly or wrongly, do not believe that the existing group properly represents their interests. TOKM has been advising iwi for some time that the best way to resolve this issue is to convene a publicly notified hui, with the mandate agenda clearly spelled out. The hui must be open to all members of that Iwi, not just to some hapu.

While some Iwi members claim that such a hui would be "stacked" with supporters of the current executive, TOKM believes it is up to those who want to see a change in Iwi representation to attend the hui and put forward their representatives. TOKM will not reconsider claims from groups who boycott properly organised representation hui.

[ed: this process in part recreates the process which was available under the now repealed Runanga Iwi Act. It remains to be seen if this process will set the benchmark and also provide data for defining Iwi for other matters such as resource management and Waitangi Tribunal claims. TOKM is working with Statistics NZ to improve iwi data from the 1996 census]

Minerals Programme for Petroleum

1 January 1995. Energy and Resources Division. Ministry of Commerce

This document sets out a minerals programme for petroleum created and issued pursuant to s18 Crown Minerals Act 1991. The fundamental policy objective in managing petroleum is efficient allocation, a fair return to the Crown and "due regard to the principles of the Treaty of Waitangi". Consultation with Maori early in any allocation process is emphasised, and a procedure for consultation which must be followed is outlined. The programme, pursuant to s15(3)/1991 (iwi may request that areas of particular importance be excluded from the operation of minerals programmes or inclusion in any permit), identifies Mt Taranaki, Pouakai, Pukeiti and Kaitake ranges (as defined by the area of the Mt Egmont National Park - 33764 hectares), as areas unavailable for inclusion in any petroleum permit, being a fundamental source of tribal identity and mana for iwi of Taranaki, with the mountain regarded as an ancestor and the area generally as wahi tapu.

Mabo No 3 case and social justice proposals

The Australian 17 March & 18-19 March 1995

The High Court has upheld the Federal Government s Native Title Act and rejected a challenge to it from Western Australia s state government, finding that government's Land (Titles and Traditional Usage) Act 1993 to be invalid as contrary to the Racial Discrimination Act 1975. This federal legislation provides that laws concerning rights enjoyed by all may not deny one group on the basis of race. The Western Australian legislation restricted common law rights on the basis of Aboriginality ie denied the ability of Aborigines to properly pursue claims to traditional title under common law.

In the same week the Council for Aboriginal Reconciliation presented a report to the federal government titled Going Forward, making 78 recommendations to secure social justice for Aborigines in light of theMabo case. Recommendations included making compulsory the study of Aboriginal and Torres Strait Islander cultures in schools, guaranteeing 2-3 seats in the Federal Parliament for Aboriginal MPs, recognition in statute law of indigenous customary law, regional self government in the Torres Strait by 2001, official recognition of the Aboriginal flag, and adding a preamble to the constitution acknowledging Aboriginal ownership of Australia prior to 1788.

Aboriginal Law Bulletin and Alternative Law Journal. Joint Issue

Vol 3 No 72 February 1995

This issue includes, among other articles, "Stopping the rip-offs" by Catherine Hawkins, which comments on an issues paper recently released concerning intellectual property protection for Aboriginal and Torres Strait Islander peoples, and the Aboriginal Carpets case where imported carpets featured the work of Aboriginal artists without their permission. Clan ownership in the artists work was recognised by the court (also considered in a case review by Terri Janke, "The Carpets Case"). "Absent owners" by Mark Gregory examines comments from the National Native Title Tribunal that the continued existence of traditional title at common law may not require continued physical connection with the land in question.

Annual index

Māori Law Review Index December 1994 to November 1995

Not Just One Tree Hill

It is becoming abundantly clear that the proposals released in December 1994 have stirred a suppressed impatience among Maori about progress with claim settlements and that the fiscal cap aspect of the proposals will be generally rejected. The Government was given ample warning that this would be the case. In the Parliamentary debate following the announcement of the proposals, all non-Government speakers complimented the Government on its attempt to grapple with these issues, but warned that setting a fiscal limit would bring trouble. Helen Clarke said: Sometimes the Government may be in a position in which it can attribute Maori opposition to, perhaps, a small group of activists or radicals. This is not one of those times. The reservation about this concept stretches across Maoridom. .... The whole concept of settling is in danger of becoming totally discredited because of the attempt to confine it to a set sum of money and to imply that timetables are involved. If we discredit the concept of settling in a fair and just way, then I fear that it will not be just one tree on One Tree Hill that suffers, but rather the state of affairs in our country generally. (NZPD 8 December 1994)There are other concerns arising from the present debate. One is the nature of advice from the Treasury. If, as has been reported, Treasury advised that the settlement fund idea would reduce many claimants inflated expectations , one wonders how thoughtfully and thoroughly these issues were investigated. This phrase is more reminiscent of letters to the editor than carefully considered policy advice on a matter of constitutional importance. In policy documents produced in 1987, Treasury admitted It would be surprising if any settlement that might realistically be expected would extinguish all sense of grievance. What may be hoped for is that the level of settlements be a sufficient indicator of the sincerity and good intentions of the Government to satisfy most Maori and non-Maori opinion that justice had been done in a reasonable way (Government Management. Brief to the Incoming Government vol 1 p331). Is that central concern for justice evident in its advice today?

Another concern is the pressure the consultation process is placing on Maori bureaucrats. As Wira Gardiner, Chief Executive of Te Puni Kokiri, has put it, these officials are often prominent members of their tribes, and are having to carry a message which their tribes by and large are rejecting (Wanganui Chronicle 20 February 1995). The cost of doggedly continuing to promote the fiscal cap might be the loss of talented Maori policy advisors for the future.

 

 

Maori Land Court and Appellate Court

No cases available to report this month.

 

Waitangi Tribunal

Fisheries Allocation Claim: Determination of Preliminary Issues

Wai 447, 27 January 1995. CJ Durie, GS Orr, JR MorrisThis claim alleges that the Crown and the Treaty of Waitangi Fisheries Commission have breached the Treaty principles, both in appointments made by the Crown to the Commission and through the process to create proposals for the allocation of assets. The tribunal, as a preliminary matter, asked for argument whether (a) actions of the Commission could be actions by or on behalf of the Crown; (b) the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 (which amended tribunal jurisdiction) prevented consideration of this claim; (c) the tribunal should defer its inquiry in light of potential remedies available before the courts.

Held: s6(7) Treaty of Waitangi Act 1975 provides that the tribunal may not inquire into commercial fishing rights or terms of the settlement, but this privative clause does not restricthearing of claims concerning the allocation of benefits of the settlement, as opposed to the settlement itself. However, if the High Court were to determine it is precluded from considering further fisheries matters because of a private clause directed at it in s9/1992, which is worded in substantially the same way as the privative clause applying to the tribunal, the tribunal may be bound to revise its opinion.

As to whether the Commission acts on behalf of the Crown, the tribunal sees the claim as against the Crown and whether it has properly delegated its Treaty responsibilities to the Commission and ought to intervene in the current situation of apparent disagreement on allocation methods (noted that if it dealt with the substantive claim, the tribunal may need to do no more than consider whether an impasse has been reached and the Crown ought to intervene, ie it may not need to make any determination regarding mana moana ). The tribunal should however sensibly defer its inquiry because the High Court might provide a stronger remedy, and technical matters of administrative law were involved (noted that the tribunal continues to hold the position that it will not intervene where it might prejudice court proceedings. This upholds the constitution, and also the Treaty, in which the Queen promised necessary laws and institutions . Within this rule however, circumstances vary, and in the past the tribunal has proceeded with contemporaneous inquiries, and withheld reporting until court proceedings were completed, or reported on certain aspects of a claim only).

The tribunal also noted, in passing, that a scheme for pre-settlement assets allocation will require substantial agreement, if not consensus from a general meeting of Maori to be passed under the terms of the 1992 Act.

[ed: this last comment could be viewed as a strong hint that the mana whenua/mana moana allocation proposal, which appears to have split the commission down the middle, may not presently carry enough support legally to see it through. An issue of perceived bias was raised on the basis that several of the tribunal members sitting had been involved in the Fisheries Settlement Report 1992 which expressed opinions on the Sealord settlement. This issue was put to one side, it being noted that the composition of the tribunal sitting to hear preliminary issues might differ from that which might later sit to hear the substantive claim. On a matter of procedure, the tribunal had suggested that it simply state a case to the High Court, which would place all fisheries proceedings before one body. Claimant counsel argued against this approach since no appeal would lie from any High Court determination of a case stated. Having the tribunal first state its view, with a potential for review of that decision, would provide, in essence, an appeal process]

 

 

Ngati Awa, Tuwharetoa and associated claims. Memorandum following fourth hearing

Wai 46, 17 February 1995. CJ DurieThis memorandum deals, within the context of the broader Ngati Awa claim, with two areas of land taken for works associated with the Matahina dam, under public works legislation in the 1960s. In both cases, the tribunal listed a number of possible breaches of Treaty principles which seemed to have occurred, and noted that it had serious doubts that these required further investigation, and invited the Crown to expedite the settlement of these claims. It was noted that it is not readily apparent from the Te Maunga Railway Lands report (Wai 315, August 1994 - which allowed that land could be compulsorily taken in special cases, despite the Treaty) what is the basis for bending the Treaty s terms to suit modern convenience or principles of necessity . In any event, the Treaty would seem to be authoritative for the view that no Crown use or exploitation of Maori land could be contemplated without, at least, reasonable consultation with the owners and a free and informed consideration by them of appropriate terms.

[ed: this memorandum appears to be saying that the Treaty either forbids absolutely any compulsory takings (and the Te Maunga report ought not to have conceded this point (see MLR September 1994)), or that, at least, full consultation and informed consent are required in each case. The tribunal noted that the government is developing a policy on public works takings, and should make itself aware of these cases before that policy is considered. In another development in this claim, the Crown has filed a memorandum expressing concern about the tribunal determination of 11 November 1994 that a prima facie case had been made out in relation to the Rotoehu forest - a forest potentially affected by offer back provisions under the Treaty of Waitangi Act 1975 (as amended by the Crown Forest Assets Act 1989)]

 

 

Tribunal appointment

16 February 1995. Office of the Hon John Luxton.Te Ahikaiata John Joseph Turei has been appointed to the Waitangi Tribunal. He is a 76 year old kaumatua of Tuhoe descent with 17 grandchildren. As a child, he grew up speaking only Maori, and travelled with Maori MPs including Sir Apirana Ngata. He was a member of the Maori Battalion from 1937 to 1946. He performed the wero at the inaugural Waitangi commemorations in 1934. He has since escorted many dignitaries onto marae throughout the country and been a representative for cultural events, such as Te Maori , overseas. He has been active in many community programmes, being awarded the Queen's Service and Commemorative Medals in 1986 and 1990 respectively for those services, and the Sir Kingi Ihaka Award in 1993 for services to Maori in preserving Te Reo and Maori culture. He spoke at Waitangi in 1995, saying that he has been outraged and affronted by recent protests, and commending the Government on its efforts in producing Treaty claim settlement proposals, but also expressing the view that the complexities of Treaty issues have no simple solutions, certainly not contained within a fiscal envelope. Mr Turei's appointment gives the Tribunal its full complement of 16 members.

 

 

Claim by M Norman and W Te Kani re kiwifruit marketing

Wai 449, 19 December 1994The claim states that at 6 February 1840, Maori were trading internationally. The Kiwifruit Marketing Regulations 1977 established under the Primary Products Marketing Act 1953 now regulate the sale of kiwifruit overseas. In 1988 and 1994, reviews of these regulations recommended changes to enable greater grower choice. The Crown through its delegate, the Kiwifruit Marketing Board, has pursued a policy of export to Japan without considering various matters, including trading rights of Maori guaranteed under the Treaty. The claimants seek recommendations that Maori growers be compensated for loss of earnings, the Kiwifruit Marketing Board grant to Maori kiwifruit producers an export licence, and in the interim Maori kiwifruit growers be granted rights to market direct to Japanese importers.

[ed: although it is attracting some business attention, because of implications for the industry and other similarly regulated industries (apple and pear and dairy), the tribunal has no plans to hear this claim in the near future. Maori growers make up 10% of the kiwifruit industry (The Independent, 10 & 17 February 1995)

 

Other Jurisdictions

In Re Green (deceased) and Green v Robson

M366/90 HC Hamilton, 16 December 1994 Hammond JThe plaintiff claimed under the Family Protection Act 1955 that he was entitled to all of a block known as Awaroa, which the deceased had left in part to the plaintiff, but also to foster children and grandchildren. The family of the deceased had raised many foster children. The plaintiff alleged that he had a claim because of need, but also because of a desire to keep the block, which had come to the deceased through her spouse, in the male side of the family. At an earlier period, the plaintiff had also worked on the block for several years. The estate overall was a small one, (around $34,000) composed almost entirely of interests in Maori land.

Held: The 1955 Act requires an assessment whether there has been a breach of moral duty, judged by the standards of a wise and just testator (Little v Angus [1981] 1 NZLR 126 (CA) cited). Competing claims of Maori custom cannot override a claim which has been made out in terms of the Act (Re Stubbing [1990] 1 NZLR 428), but whether such competing claims would be termed moral claims which would reduce the amount the successful claimant gets is unclear. The courts would probably recognise a moral duty of a testator towards children adopted customarily even though they could not themselves bring a claim under the Act. When dealing with Maori families regard is to be had to the strong attachment of Maori to the land and deeply held family feelings in that respect (Re Ham (1990) 6 FRNZ 158). Parliament has begun to adjust further the position of Maori in relation to the 1955 Act by providing in Te Ture Whenua Maori Act 1993 (s 106(4)), that Maori customary marriages before 1 April 1952 will be recognised for the purposes of the 1955 Act.

As a general principle, freedom of testamentary disposition is important in New Zealand, to which the 1955 Act is an exception. Without evidence on the matter, the best solution for Maori land is to respect the judgments of those making decisions about the land, unless there is a very good reason to interfere. There being no particular evidence presented of Maori custom in this case, it should be dealt with on conventional and well established principles. The plaintiff should have all of the block. He had established a breach of moral duty, being the only natural child of the deceased, living in modest circumstances, had helped to maintain the land, and there were no competing claims of economic need. Moral claims of the foster children, if any, were outweighed by these circumstances.

[ed: the judgment might have noted that Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Wills made after 1 July 1993 purporting to dispose of interests in Maori land beyond specified groups are voided by the Act (s108(5)). Provision for customary marriages under the 1955 Act has existed since 1967 (Maori Affairs Amendment Act 1967 s80(3)].

 

 

Ngati Rangatahi Whanaunga (Association) v NZ Police

W5/95 PT, 3 February 1995. Treadwell JThe applicants had obtained an interim enforcement order under s320 Resource Management Act 1991, preventing work on a new police station at Taumarunui. The site concerned had long been under dispute by local Maori, being taken under the Public Works Act 1908 in 1911 (compensation was paid to the District Maori Land Board). A claim was made to the Waitangi Tribunal about the land in 1990. The Police applied to cancel the order.

Held: the order should be cancelled. There was a need for a new police station (the old one had been demolished in anticipation of the new building), substantial damages would result to contractors if work was delayed at this late stage. The Crown had put itself under an obligationto stop work immediately should human remains be found on the site. An undertaking as to damages should the order be issued would be critical, yet no undertaking had been offered. His Honour rejected submissions that public interest issues represented by Treaty of Waitangi obligations required issuance of an interim order without an undertaking as to damages, and that the Crown as a Treaty partner ought not to require such an undertaking. The Crown did require such an undertaking and believed that it had carried out any Treaty obligations (there had been ongoing discussion with the applicants about the proposed construction). Waahi tapu issues had been raised at the very last moment. Accordingly the interim order would be cancelled and an urgent hearing date of the substantive matter set.

[ed: Ngati Hauaroa hapu have since made a very public occupation of the site. They also appealed this decision to the High Court and lost. That judgment will be reviewed in next month s issue. Given that the land was taken under early public works legislation, and that the District Maori Land Board in 1911 consisted of 3 persons, of whom only one was required to be Maori, and had a Pakeha chair, then comments of the Waitangi Tribunal regarding adequate consultation and negotiation prior to public works takings in the Te Maunga Railway Lands report, and in a memo re Ngati Awa claims (reviewed above) might well be applicable to this case. As further background, Taumarunui was declared a native township under the Native Townships Act 1895. This heavy handed legislation provided that up to 500 acres of Maori land could be brought under Crown control, for lease to Europeans for periods up to 42 years, with rents being distributed to Maori, minus survey and other costs for bringing the township into being.]

 

General

Maori Reserved Lands Government Policy Decisions 1994

Minister of Maori Affairs & Minister of Lands. Te Puni Kokiri January 1995. 19ppThe government is urging owners and lessees to reach their own arrangements for ending the perpetual terms of leases, revising rentals, etc under the Maori Reserved Land Act 1955. They will do this against a bottom line position provided by an amendment to that Act which the government hopes to pass in 1995. This will provide:

Term of the leases: All perpetually renewable leases will terminate at the end of the current term plus two further periods for 21 years. This will see the last leases terminating in 63 years, and the earliest in 42 years. Where any house on the land is a principal place of residence, lessees and their spouses will retain lifetime occupancy rights expiring 3 months after death. Lessees at the time the amending legislation is passed will be the final lessees, ie they will not be able to transfer their interest by will, gift or sale of the lease.

Improvements: On termination of a lease, the owners will pay the market value of improvements, or come to some different arrangement by mutual agreement. The consultative working group (see below) will advise on the procedure to be followed if the owners cannot afford the improvements.

Rent: 3 years after the amending legislation is passed, rent reviews will begin on the first batch of leases, with the aim of establishing market rents for all leases over the next 4 years. After this first review, rents reviews will be every 7 years. The Valuer General will, at government expense, establish for each property a benchmark ratio between the owner s and lessee s interest in the land around which the new market rents can be negotiated. Workshops held by the government will explain this benchmark approach to owners and lessees. The government expects that Maori owners will use the new market rents to establish a fund to assist in purchasing the interests of lessees. Rights of first refusal: the Maori owners will be given the right of first refusal to purchase a lessee s interest where the lessee wishes to sell (except where sale is to a family member). Lessees will have the right of first refusal where the Maori owners wish to sell general land. But if the land is Maori freehold land, the provisions of Te Ture Whenua Maori 1993 as to sale apply unaffected (these require a right of first refusal be offered to specified groups related to the Maori owners). Compensation to lessees: Lessees will be compensated for the loss of their perpetual right to renew at between 1.85-2.9% of the unimproved value of the land. This compensation will not come out of the fiscal envelope for Treaty settlements. Compensation to Maori: Maori owners must pursue claims before the Waitangi Tribunal for compensation. Implementing the policy: A consultative working group will be established by the Minister of Maori Affairs in early 1995 to advise on issues surrounding the proposed legislation. [ed: most of the recommendations of the 1993 report of the Reserved Lands Panel have been followed. However, that Panel recommended against compensation to lessees, as they had enjoyed the benefit of cheap leases for many years. It also recommended financial assistance to Maori to purchase improvements where normal commercial facilities were not available. Maori claimants, whose petitioning about the injustice of perpetual leases over 100 years has finally led to this review, are given no certainty of compensation, only a right to continue their claims before the Waitangi Tribunal, where the Crown is resisting any argument that the system of perpetual leasing was unfair as conceived in the late nineteenth century (This was most recently argued in Wai 145, doc D2, 8 December 1994). Compensation to Maori for a system which the 1993 Panel described as significantly unjust and evil may best come through land swaps involving surplus Crown lands which are under discussion in some areas. As a historical comparison with these proposals, the Maori Vested Lands Administration Act 1954 is worth a look, see NZPD (1954) vol 304 p1970]

 

 

Te Puni Kokiri - Ministry of Maori Development reorganisation

Replies Supplement 13 December 1994. Hon John LuxtonTPK is being re-organised internally (without impact on its outputs) into 5 branches: Compliance: policy advice on management of the Crown-Maori relationship; legislative reform; monitoring; Assets: policy advice on the access to, ownership, development and management of assets; income generation, economic development; Sectoral: policy advice on intersectoral linkages; focusing in particular on education and training, employment, and health; Regions: policy advice on facilitation of services at the local level; consultation; local level risk to the Crown-Maori relationship; Corporate: provision of support services to the organisation.

 

 

Address to "The Unfinished Business Conference

Institute of Advanced Legal Studies 9-10 February 1995. CJ DurieThe focus of Maori claims settlement has now shifted to policy. The Sealord and proposed Tainui settlements are encouraging. The main issues before Maori now are representation and equity between tribes. These are particularly Maori policy matters to be resolved by Maori, not government. A democratic structure in which to do this is lacking, consequently, those who shout loudest in the media are heard. The Aboriginal and Torres Strait Islander Commission is one illustrative model which could be looked to. The word settlement in Australia refers more to settling a process for the future, than making payment for the past. The Council for Aboriginal Reconciliation, which promotes informed public debate, is particulary important in the Australian scheme. Aboriginal land councils provide evidence that self determination within a national framework is both feasible and non-threatening. The proposal for a perpetual land fund in Australia also looks to the future.

In New Zealand the disparity between Maori objectives and public understanding (Maori are not locked into the past nor out to bankrupt the country), calls for more informed debate. A council of leading Maori and Pakeha New Zealanders might achieve this. The issue is primarily about the management of race relations in the coming years. Equity between tribes, and between traditional and urban groups are demanding issues at the moment, as well as equity between Maori and Pakeha.

 

 

He Matariki: A Strategic Plan for Maori Public Health. He Kaupapa Whainga Roa Mo Te Hauora Tumatanui Maori. The Public Health Commission s Advice to the Minister of Health 1994- 1995

Public Health Commission. Rangapu Hauora Tumatanui. February 1995.This document recommends a strategic plan for Maori public health. It states that increased health risks for Maori adults are a result of relative social and economic disadvantages ... coupled with unhealthy lifestyle patterns . Car crashes are the leading cause of death among Maori males aged 15-44 and also among females aged 15-24. Looking to the future, the report predicts there will be more kaumatua than ever before after 2000, and that, provided there is a transmission of cultural knowledge, this will considerably strengthen the pool of traditional leaders. Recommendations for the outcomes to be achieved by public health initiatives are specific. For eg; to reduce Maori deaths caused by motor vehicle crashes from 84 in 1990 to 64 or fewer by 1995, and to 44 or fewer by the year 2000 and reduce hospital admissions from crashes from 1,612 in 1991 to 1,312 or fewer by 1995, and to 1,012 or fewer by the year 2000. Also to reduce the number of all Maori who smoke from 54% (1992) to 40% or less by the year 2000.

[ed: the outcomes are concisely stated, but the document assumes that the commission will take the lead in purchasing the public health services required and monitoring the outcomes achieved. The recent announcement that the commission will be disbanded therefore makes the future of this report uncertain. The commission s advisory role will be absorbed within the Health Ministry, and Regional Health Authorities will purchase public health services such as training programmes for health workers, immunisation programmes, health advertisements etc to produce the outcomes the report recommends. The question is whether there will be a loss of focus and commitment on Maori public health issues which the small, independent commission seems to have provided]

 

 

Parliament, the Treaty and Freedom: millennial hopes and speculations

NZLJ December 1994 pp462-468. Professor FM BrookfieldIn this valedictory lecture Professor Brookfield argues that it is impossible to believe that the chiefs who signed the Treaty consented to the absolute and unlimited power of parliamentary sovereignty, since this would have included a power to destroy the tribal autonomy guaranteed under Article 2. Consequently, when we look today to better performance by the government of its obligations to Maori, we depend to a large extent on action by a parliament which is itself the product of a partly revolutionary seizure of power. The idea of a counter-revolution to restore Maori autonomy is rejected, but it is argued that the courts should now adopt a general principle that, except where Parliament expressly legislates to the contrary, all statutes should be interpreted against the background of the Treaty. This principle could be reached by emphasising the changed constitutional position and views of the Treaty since the Privy Council judgment in Te Heuheu Tukino s case in 1941. [ed: just such an argument was raised, and rejected, by the High Court in Ngai Tahu Maori Trust Board and others v Director-General of Conservation and others CP 841/92, 23 December 1994 (reviewed in MLR Dec94-Jan95 issue). The argument might however be raised directly before the Privy Council if the Maori plaintiffs in the electoral option case appeal the Court of Appeal decision in that matter]

Annual index

Māori Law Review Index December 1994 to November 1995

Editorial

As the year started (see MLR January 1994) so it ended, with discussion about the best means of achieving settlements to Treaty claims. Now however, there is up for debate a detailed government settlement policy, a Labour party response, and the proposed Tainui deal. Given that the government and opposition parties are far apart in their approach to Treaty settlements (the government is interested in a fiscal cap, Labour and the Alliance are not, the government seems scarcely interested in the Waitangi Tribunal, Labour wants to boost its resources), perhaps the determining factor in the debate will be the practical results from the fisheries settlement assets allocation row, and the proposed Tainui deal. These will decide whether full and final settlements, mechanisms for determining tribal representation and fiscal caps are practical or not.

The National Government has ensured that one major tribal group has an interest in supporting its settlement policy proposals. The agreement signed with Tainui in many of its details follows the proposals. Other tribes, looking nervously at the 17% of the fiscal envelope already committed in the Tainui deal, have indicated that they have many reservations and questions which will need to be answered. Whether this will be the year of deal-making remains to be seen.

In the current excitement, it is perhaps worth remembering that, for many Maori, unemployment will be their greatest challenge in 1995. The Task Force on Unemployment has suggested a goal which, beside the Treaty claims debate, seems relatively modest. It is to have the major political parties, by mid-1995, agree on a comprehensive strategy to eliminate Maori disadvantage in the labour market.

This being a year celebrating Maori language, the Review will be improving it's use of Maori, including the use of macrons from the next issue. If the English explanations of Maori terms seem a little obvious at times, please bear with us, there is a small but growing international audience for the Review. I would like to record my thanks to those who helped launch this publication, in particular the support from the Waitangi Tribunal and from the Judges of the Maori Land Court.

Maori Land Court and Appellate Court

In Re Tuaropaki E Geothermal Test Wells and the A-G

(1994) 1 Waiariki Appellate Court B 24, 20 December 1994. Chief Judge Durie, Carter J, Savage J An appeal by the A-G from a final order of the MLC determining ownership of certain geothermal test wells situated on Maori land. Held: the matter should be referred to MLC for a rehearing because the Crown was given insufficient time to prepare its case (5 clear working days only). The MLC had wrongly failed to use its discretion to grant an adjournment, giving insufficient weight to the capacity of the Crown to prepare for hearing. Further injustice would result if the MAC did not intervene (the circumstances in which the MAC will intervene in MLC discretion and matters to consider in granting an adjournment were briefly discussed).

Noted that s18(2) and s56(2)/1993 do not give authority for MAC to transfer an unheard appeal to the High Court. Transfer of this appeal (now heard) declined in this case.

Also noted that where an application for adjournment is disputed, both parties must be given an opportunity to hear the arguments and respond. Finally, s18/1993 extending jurisdiction to claims in contract, tort and equity, with no monetary limit, will raise complicated matters such as this case and a more measured and structured approach to pre-trial matters is contemplated in s67/1993.

In Re Ngati Toa Rangatira

(1994) 21 Nelson MB 1, 8 December 1994. HK Hingston J, T Adams & W Mauriohooho as additional members

This was an application under s30/1993 to determine, between two competing groups, the appropriate representatives of Ngati Toa Rangatira to receive certain fisheries quota, consult with the Malborough District Council on various matters and negotiate with the Crown concerning the disposal of surplus Crown lands in the South Island. A runanga based in the North Island (Te Runanga O Toa Rangatira Inc) claimed to represent all Ngati Toa and stressed continuity with the past tradition of acceptance of North Island leadership. A South Island trust (Ngati Toa Rangatira Manawhenua ki te Tauihu Trust) claimed to represent Ngati Toa of the northern South Island (Wairau) region, arguing that a separate identity for southern Ngai Tahu had developed over time. Held: neither body adequately represented Ngati Toa in traditional terms. Both were of relatively recent creation, and the South Island trust represented a community of interests, but not a traditional authority. A representative body of kaumatua (elders) were the only appropriate representatives for the present. Accordingly, the hearing was adjourned to allow the selection of kaumatua rangatira of Ngati Toa, not currently holding office in either body, 5 from the North Island and 2 from the South, with terms of appointment limited by the court to three years.

It was also noted that mana moana is not a concept from tikanga Maori but is a construct "rooted in greed and ignorance" arising from contemporary fisheries settlements. Mana whenua in Tainui tikanga (different meanings might apply for other iwi) refers to "mana-o-te-whenua", a "traditional veto mechanism" whereby owners gave authority to the Maori King to veto all offers to purchase the land. Also held that, in accordance with s66(1)(a)/1993, marae kawa should be followed and whakapapa should not be read out before the court.

[ed: on the basis of this and the Tararua decision (138 Napier MB 85, 1 November 1994 see MLR November 1994), where there is conflict over representation, the court seems to be wary of recently formed organisations lacking kaumatua involvement. The comments on mana whenua and, more particularly, mana moana, which seem to attack the heart of the proposed distribution scheme for the fisheries settlement assets, will almost certainly generate further discussion. The decision also made critical comments on the partiality and conduct of a key witness (whether these will be challenged remains to be seen).]

In Re Karu O Te Whenua B2B5B1 Block

108 Otorohanga MB 227, 21 November 1994. GD Carter J

This concerned an application for confirmation of a resolution to sell a block which was objected to by minority shareholders on several grounds.

Held: the right of first refusal under s152/1993 (and s147(2)) refers to the whole of the land subject to an application for confirmation. In this instance it did not provide an opportunity for dissenting owners to have first preference to buy individual shares of other owners. The court also noted that if a partition is sought solely to allow a sale of shares this might be argued not to have the objective of facilitating the effective operation, development and utilisation of Maori land as required by the 1993 Act. However, if dissenting owners to a sale seek a partition to retain land then ss2 (promoting retention of land in Maori hands) and 17 (protection of minority interests) apply, and a partition order may be appropriate.

In Re Oparau No 1 Block

76 Waikato MB 210, November 1994. GD Carter J

A major shareholder in a block of land administered as an ahu whenua (formerly s438) trust, because of personal financial difficulties, entered into an agreement to sell his shareholding to 2 minor shareholders in the block at a price below the market value. The shareholder died shortly after entering the agreement. The minor shareholders sought a vesting order under s164/1993, which was opposed by the trust and other parties.

Held: under the 1953 precursor to s164 (s213(7)), the court had allowed an alienor to withdraw at any time prior to a vesting order being made (see In Re Tikouma 3B2 Whareraumati Development Ltd v Ruha and Ors (1975) 14 Waikato-Maniapoto ACMB 362, Tai Whati p171). Consent at the time of hearing (not at the time of making the agreement) is assessed. Other owners have the right to object to the order (s164(8)). Section 164(7), which provides that where a party to an agreement has died the court must be satisfied a "proper agreement" was reached before death, is new in the 1993 Act. This can include consideration of extrinsic circumstances relevant to the agreement. The section does not necessarily pass the right of withdrawal of the deceased alienor to their successor, but where questions of adequacy of consideration arise, the views of any successor on the agreement may be taken into account by the court. Because adequacy of consideration was in issue in this case the consent of any successor would be required. Successors had not yet been determined. The court questioned whether a codicil concerning the deceased's Maori land interests made after the 1993 Act came into effect could be affected by s108 (land to be left to certain preferred classes only), where the will itself, being executed earlier in time, was not subject to that section.

As to whether under s152 consideration was adequate - although the price was low, the deceased had legal advice and had not rushed into the sale. Noted that generally parties without a pecuniary interest in a sale may not oppose it for inadequacy of consideration. However, having regard to broader factors, in particular the Preamble and s2/1993 which suggest group interests in Maori land should be promoted over individual interests, no vesting order should be made if the trust was willing to purchase the shares at the price the deceased had agreed with the minority shareholders.

In Re Mahimahi E5

(1994) 4 Tokerau ACMB 51, 13 December 1994. Deputy Chief Judge Smith, Marumaru J, McHugh J

The appellant had filed an application under s240/1993 seeking the removal of 2 trustees for alleged mismanagement of a section 438 trust in which he was a trustee. A "mirror" application under the same section was filed by the 2 trustees named in the first application, seeking removal of all trustees except themselves. After a hearing and discussions in chambers the court noted that both s240 applications were dismissed by agreement. The appellant wrote to the court arguing that he had not agreed to the dismissal of his application. The Deputy Registrar advised that the dismissal could either be appealed, or the court would accept a fresh application. A fresh application was filed. After a brief hearing at which neither party appeared the court dismissed the fresh application saying the matter had already been dealt with and was res judicata. The appellant brought the present action arguing that the first dismissal was made without jurisdiction, and the second dismissal was in breach of natural justice and court rules and a wrong use of the res judicata doctrine. Held: as to the first dismissal, although this had been made after a chambers conference, there had been a hearing, the court was prepared to hear the matter further, and s17(2)(c)/1993 (court to facilitate settlement of disputes) and s66(2)/1993 (avoidance of undue formality) indicate that promoting resolutions through discussion between parties is desirable, and rule 42(5) (MLC Rules 1994/35), which gives an unfettered discretion to dismiss, could be invoked in the circumstances (there being no specific rule for discontinuance of actions as in the High Court). Noted, but not decided, that rule 70 might also be invoked where parties consent to a dismissal, since this might amount to "want of proper jurisdiction" which that rule specifies. Noted that the court could have adjourned rather than dismissed the applications and later cleared them from the court record using rules 79 or 38. The dismissal by the court could not be attacked for failure to consider the seriousness of the allegations made since there had been consent from both sides. Noted however that it is useful if the lower court records under what provision dismissal is made.

As to the second dismissal, this had been wrongly made without notice to the parties as required by MLC rules. The lower court should have treated the appellant's letter to the Deputy Registrar as an application for rehearing under s43/1993 and rule 71.

Waitangi Tribunal

Allocation of Fisheries Settlement Assets

Wai 447. Filed on 8 December 1994

The claim is by Rima Edwards and others and groups including Te Runanga o Muriwhenua, Te Runanga-a-Iwi O Nga Puhi, Tainui Waka Fisheries, Ngati Ranginui Iwi Society Inc, Te Kotahitanga-o-Te Arawa. It alleges that the Treaty of Waitangi Fisheries Commission has promoted the final allocation of fisheries assets and in particular pre-settlement assets without considering at all or adequately the matters prerequisite to such a decision including:

- Identifying the persons or groups beneficially entitled - in particular, how persons from the 1991 census claiming to be Maori, but not identifying a tribal affiliation, should be provided for;

- Whether Treaty grievances of such beneficiaries will best be addressed by final allocation or delayed allocation or no decision to allocate for now;

- Using a model substantially based on mana moana, which is "manifestly not a tradition based concept", and which ignores "large populations of northern tribes whose rights to develop extend to exploitation of the deep fishery to a substantial degree in order to provide for their populations". - Failure to have sufficient regard to the Waitangi Tribunal Fisheries Settlement report, Wai 307.

It is also alleged that the commission has been biased in promoting one model to the exclusion of others, and if not topped will exacerbate Treaty breaches supposed to have been settled by the fisheries agreement and legislation, and those aggrieved will have no recourse against the Crown. The claimants seek findings that the mana moana concept and the consultation process adopted by the commission are not in accordance with principles of the Treaty. They ask that the Crown in consultation with Maori and pursuant to guidelines recommended by the tribunal appoint a royal or other commission or other body to inquire into these matters and that in the meantime no allocation should take place.

[ed: The tribunal, after a preliminary hearing, is preparing a decision on whether it has jurisdiction to hear the claim, in particular, whether any actions of the commission are actions of the Crown, whether the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 prevents the tribunal from hearing the claim, and whether an alternative remedy exists in proceedings before the High Court. In addition to this claim, there are now at least 3 actions in the High Court concerning allocation by the commission, with the possibility of more being added. These are:

- Hauraki interests seek a case stated from the High Court to the Maori Appellate Court to rule on tikanga (customary) issues along part of their coastline disputed with Tainui (Hauraki Maori Trust Board & Anor v ToW Fisheries Commission CP 562/94);

- A Te Arawa group which has already obtained a case stated on tikanga issues from the High Court to the Appellate Court, now faces an injunctive action in the High Court to prevent the Appellate Court proceeding (Te Waka Hi Ika o Te Arawa v ToW Fisheries Commission CP 395/93);

- Muriwhenua interests seek to challenge the consultative process by which the commission is determining which allocation model to follow (Te Runanga o Muriwhenua & ors v ToW Fisheries CommissionM 1514/94);

Counsel instructed by 6 commissioners has informed the High Court that they may become involved in proceedings because of concerns about the legality of commission decisions, particularly in terms of consultative processes, and possible inconsistency with principles of the Treaty (Conference minute 9 December 1994, Anderson J, High Court Auckland). The commission does not now expect to report its final allocation model to the Minister of Fisheries until mid June 1995, depending on progress with litigation (letter to iwi 10 January 1995).]

Other Jurisdictions

Atawhai Taiaroa and others v Minister of Justice and others

CA 201/94, 23 December 1994. Cooke P, Richardson J, Casey J, Hardie Boys J, Gault J, McKay J, Sir Gordon Bisson

An appeal from the judgment of McGechan J in the High Court dismissing an application challenging the lawfulness of the conduct of the Maori electoral option (Atawhai Taiaroa and others CP 99/94, 4 October 1994, reviewed in MLR October 1994).

Held: the appeal should be dismissed. Criticisms of the flawed postal delivery of option forms, and the content of explanatory material, were "hypercritical". Reasonable steps were taken to notify the option to Maori voters already on the electoral rolls. As to Maori voters not enroled, such an important option, affecting the constitution of the state, of itself gives rise to an implication that reasonable notice of the option must be given, regardless of the Treaty of Waitangi and any special obligations to Maori. Special obligations are relevant however in determining what is reasonable, given the position of Maori in NZ society and the unsatisfactory Maori enrolment numbers. Overall, depite some problems, the option did receive considerable publicity, and Maori enrolments increased significantly during publicity campaigns leading up to and during the option period. While what was done was "far from perfect", it passed the test of reasonableness.

[ed: the decision was a unanimous one of the full bench of the court. Nevertheless, an application for leave to appeal to the Privy Council has been filed by the appellants]

Davis and another v Morgan and another

M 51/94 High Court Whangarei, 21 November 1994. Barker J

An application to the MLC to confirm a transfer of land was challenged on the basis of certain alleged irregularities. Concurrent proceedings alleging forgery, conflict of interest of the solicitor involved, inadequate consideration and other matters were commenced in the High Court. The MLC adjourned its proceedings pending the High Court determination (quite rightly in the High Court's view), and questioned whether it had jurisdiction to determine issues such as forgery and conflict of interest within the context of an application for confirmation. The High Court was asked to determine whether the MLC had jurisdiction to consider the same equitable issues raised before the High Court, and grant appropriate relief, in which case a stay of proceedings in the High Court was sought pending an MLC determination.

Held: s18(1)/1993 providing for the MLC to hear and determine claims at law or equity to the ownership of Maori land confers sufficient equitable jurisdiction for the MLC to consider the matters at issue, although such jurisdiction is not mentioned in s227(1)/1953 or s152(1)/1993 (virtually identical provisions dealing with applications for confirmation). Where there are two proceedings in different courts, one should be stayed (Railex Services Ltd v Chemoil Machinery Ltd A1220/85, 20 December 1985, Auckland registry, referred to). It would be "sensible" for the MLC proceedings to continue because of its expertise, the limited means of the parties, and procedural efficiency (the matter would have to go back to the MLC anyway if the defendants succeeded before the High Court).

Proprietors of Mawhera and another v The Maori Land Court and another

CP 173/92 High Court Christchurch, 19 December 1994. Tipping J

The Mawhera incorporation sought judicial review of comments by the Maori Land Court that land sales and purchases by the incorporation might be ultra vires the law governing the corporation's activities. Arising from the same judgment, a former chair of the incorporation applied for certiorari and the striking out of comments derogatory of him. Held: the privative section 64/1953 (orders and proceedings of the MLC not removable to the High Court) does not prevent High Court consideration of ultra vires proceedings of the MLC (Anisminic Ltd [1969] 2 AC 147, Bulk Gas Users [1983] NZLR 129 and other relevant cases on privative clauses considered). In principle, and subject to the discretion of the court, comments by a court about a person ought to be reviewable even if comments (as opposed to orders or determinations) do not fall easily within the normal requirements for judicial review, certiorari or declaration. The comments in this case were made in breach of procedural fairness and were therefore ultra vires. The MLC was wrong to rule that sales of land by the incorporation were ultra vires, the incorporation having power to do so either under s48(1)/1967 which gives the power to sell land without the need for this power to be specified as an object of the incorporation (Ngati Whakaue Tribal Lands v Rotorua District Council M436/80, 11 February 1982 distinguished), or by an order listing land selling as a specific object which had here been validly made under ss27 and 28/1967. The MLC was however correct in its view that, in the case of purchase, any purchases must beincidental to lawful independent objects (eg farming) of the incorporation. Section 50/1967 providing for the purchase of lands does not, in similar terms to s48, provide that purchases may be made even though this activity is not specified as an object. Sections 27 and 28 which provide for amendments to objects do not allow an amendment to make land purchase an object. Orders amending the incorporation objects under ss27 and 28 which purported to make land purchasing an object were therefore ultra vires.

[ed: the determination that the purchasing powers of an incorporation may be limited will probably have little practical impact since the 1993 Act provides incorporations with very broad powers to enter into transactions, and pre-existing incorporations may broaden their objects on application to the court after a general meeting of shareholders - ss253(a) and 358A. It was noted in this case that a s452/1953 (now s44/1993) application to have the Chief Judge of the MLC review the MLC decision was not pursued because the solicitor for one of the parties was the Chief Judge's wife. Because of work in the Waitangi Tribunal, the Chief Judge has delegated the hearing of s44 applications and many other MLC matters to the Deputy Chief Judge under s8/1993 - see Memorandum 7 June 1994. [1994] Chief Judge's MB 231]

Ngai Tahu Maori Trust Board & ors v D-G of Conservation & ors

CP 841/92 High Court Wellington, 23 December 1994. Neazor J

The applicants, including 2 companies, who held permits under the Marine Mammals Protection Act 1978 to take tourists by boat to observe whales at close quarters, challenged the proposed issue by the D-G of a further permit for whale watching, and the issuing of a permit allegedly in breach of an interim order of the court when these proceedings were first brought. The applicants, representing Ngai Tahu people who are tangata whenua of the region, argued that the Treaty of Waitangi was relevant to the D-G's decision in that he should have regard to the likely economic impact on them, and that they had a legitimate expectation that no further permits would be issued until they had had sufficient time to repay capital development costs of their commercial whale watching enterprises.

Held: the Treaty is not legally enforceable except insofar as it is incorporated into municipal law by statute (Hoani Te Heuheu Tukino [1941] AC 308 followed), and a comment of the Privy Council in the recent Maori broadcasting case (NZ Maori Council v A-G [1994] 1 NZLR 513) that this was only "normally" the case did not affect that position. Although s4 of the Conservation Act 1987 requires that that Act be interpreted and administered so as to give effect to the principles of the Treaty, and the Marine Mammals Protection Act 1978 is, by inclusion in a schedule to the Conservation Act, administered under it, s4 was not thereby imported into the 1978 Act. The D-G was required only to administer the 1978 Act in accordance with the principles of the Treaty, which meant consulting if a particular Maori claim arose, but otherwise, in his substantive decision, he might only take into account matters in the 1978 Act (which made no mention of the Treaty or Maori issues). Nor did the evidence show that Ngai Tahu had historically exercised a right to the catching of large whales in this region (Kaikoura) which the Treaty would have protected (Waitangi Tribunal Muriwhenua Fishing and Ngai Tahu Sea Fisheries reports referred to). A claim to a right based on aboriginal title also failed, the historical evidence did not support it, and access to the resource was now wholly governed by the 1978 Act (without however necessarily extinguishing any aboriginal right). Noted that there may be a question whether a company under the Companies Act (2 of the applicants in this case) can claim rights for Maori under the Treaty or aboriginal title - but this was not contested by any party.

The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, preventing future claims to commercial fisheries, was not relevant, because it concerned mammals andnot fish. The argument that there was a legitimate expectation based on Treaty principles also failed. With regard to the permit issued without consultation while the interim order was in force, the consultative process was flawed and Ngai Tahu interests should be consulted when the permit came up for renewal in a few months. Consultation should not just be on "major issues" as the D-G contended, but should occur "when a reasonable partner would consult."

[ed: the judgment seems to require that in some situations the D-G must consult and note Maori concerns even where he is unable to take them into account in a final decision. This places the D-G and Maori in a difficult position, and may encourage cynicism about the consultation process. Perhaps some clarification by Parliament is required]

Worldwide Leisure Ltd & Ngati Rauhoto v Symphony Group Ltd & Taupo District Council

M No 1128/94 High Court Auckland, 22 November 1994. Cartwright J

Review was sought by a private tourist company and Ngati Rauhoto of a district council decision not to notify an application for a resource consent for a tourism development on the banks of the Waikato river. The council made the decision under s94 Resource Management Act 1991 believing that any adverse effect on the environment would be minor and that it had adequate information of concerns of any affected groups, including Ngati Rauhoto. Ngati Rauhoto alleged that a sacred spring would be affected by the development (of which the council was aware, although its location had not been precisely ascertained at the time of hearing). Held: following the general approach to judicial review, the court will intervene where effectively no weight has been given to a relevant factor or it has been ignored, but not where there are merely opposing views. The tourist company action failed, but Ngati Rauhoto had not had the opportunity to pinpoint the spring site or discuss concerns about the impact of the development on the mauri of the river. This failure to adequately consult was unreasonable and written consent would be required under s94, or failing this, public notification.

Brown and others v Pourau and others

CP 53/88 High Court Hamilton, 23 November 1994. Hammond J

A kuia (elderly Maori woman) with a large immediate family had, by will, left the property lived on by the family absolutely to her eldest child. This child in turn left the property absolutely to her son who wished to sell it outside the family. The children of the kuia challenged probate of her will, arguing that she had lacked testamentary capacity, or that the absolute bequest to the eldest child was impressed with a secret trust "for the family" The land was general land, not Maori land. Held: it was accepted that key institutions of Maori culture were associated with the property, including birth of the children on it and burial of the pito (afterbirth), the holding of tangihanga (funerals) there; and the property was regarded as turangawaewae (lit. a "place to stand"). Although the kuia was a noted "spiritualist" who would sometimes be in a trancelike state called "wairangi", neither this (which was episodic only) nor her failing eyesight had affected her testamentary capacity. Nor had a secret trust (a form of constructive trust) for the family been established on the balance of probabilities. The evidence, including a failed application to have the land declared a s439 papakainga reservation, supported the existence of a moral obligation only with regard to the family. Cases regarding testamentary capacity and secret trusts were fully discussed. The existence of ohaki, a form of oral will, was noted. It was also noted that under s145/1953 the Maori Land Court had vested the land absolutely in the kuia even though her husband had left it to her in trust for the family. This aspect was not however challenged. Mot of the children had consented to the vesting order.

Registrar-General of Land v Marshall

AP 30/94 High Court Hamilton, 19 December 1994. Hammond J

A District Land Registrar accepted a transfer of Maori land and registered it without it having been produced to the Maori Land Court for noting and endorsement as required by s83/1967. The respondent in this case, who was noted as the owner in land transfer records, was challenged by the Maori owners recorded in MLC records. The respondent also faced problems obtaining finance from the Maori Affairs Department to use the land as security because of the state of the title. He applied to the MLC for a ruling as to ownership. The MLC found in his favour. The respondent claimed against the DLR the cost of proceedings before the MLC and was awarded part costs in the District Court. That decision was appealed.

Held: despite an assurance from the DLR that he had an indefeasible title (Housing Corporation of NZ v Maori Trustee [1988] 2 NZLR 662 confirms that failure to comply with noting requirements in the MLC does not affect a registered title), the respondent was entitled to compensation under s172 Land Transfer Act 1952 because he had suffered loss through an omission of the DLR, even though that loss was not deprivation of any estate or interest in land (the policy principles behind the insurance provided by s172 were discussed). Even if a solicitor has been negligent in seeking an endorsement from the MLC before applying for registration, a responsibility remains on the DLR, where he is aware that the land is Maori land, to check that all laws have been complied with (reg 16 Land Transfer Regulations 1966). No policy reason existed to restrict liability of the DLR, since DLRs are aware that MLC records are extensively used by Maori people and the (former) Maori Affairs Department. The lower court had been correct however to apportion liability for contributory negligence by the solicitor who had sought registration of the transfer, since the heaviest responsibility lay there. The comments of the MAC in Pakiri R Block (Case Stated 1/93, 23 March 1993 see MLR April 1994) that there may be a "cavalier" attitude to MLC noting requirements were noted.

[ed: if there is a "cavalier" approach to noting requirements, it will no doubt be tempered in future by the knowledge that there may be financial repercussions for DLRs in some cases. His Honour several times reiterated the policy importance of the indefeasibility principle remaining paramount. Yet the MAC in Pakiri R queried whether registration requirements of Te Ture Whenua Maori 1993 may in certain cases affect that principle.]

General

Crown Proposals for the Settlement of Treaty of Waitangi Claims

8 December 1994. Office of Treaty Settlements, Department of Justice

A "Settlement Envelope" totalling $1000 million will be set aside over "about" a 10 year period to settle all "historical" claims, ie, claims about Crown actions prior to 21 September 1992 (the date on which Cabinet agreed certain principles for settling claims, and two days before the Sealord Settlement was signed). The amount in the envelope is not negotiable, although the concept of the envelope is. Some expenditure already incurred in settling claims will be deducted from the envelope (including $170 million for the Sealord Settlement but not including research funding from the Waitangi Tribunal or Crown Forestry Rental Trust). Maori do not have to accept the envelope concept to enter negotiations (although they will be bound by it). As the envelope is used, the residual amount will be updated by the Consumer Price Index. Current programmes for Maori development generally ("article II" expenditure) are not affected. The current land bank system managed by DOSLI for surplus Crown lands is continued and falls within the envelope policy.

Settling particular types of claims

Conservation estate: this includes all lands administered by the Department of Conservation. Because of the public interest in them, they will be used only sparingly in settlements, and current levels of management and access retained. Properties which might be returned include waahi tapu, other sites of special importance (certain lake and river beds and mountains) and other "discrete parcels". Consultation with conservation groups will proceed on a case by case basis. Natural resource claims: the Crown will admit only claims to use rights (not ownership rights) and "cultural and spiritual values" in "natural resources" (ie natural resources other than land). Further, claims concerning the use of resources "substantially unknown or unused" at 1840 will not be admitted by the Crown.

Gifted lands: lands gifted by Maori to the Crown, or where the Crown arranged a gift to a third party (often for schools) will be specially considered, and Maori conceptions of gifting will be taken into account. Claims to gifted lands where current legal obligations (eg Public Works Act procedures) or common law obligations apply will be dealt with outside Waitangi Tribunal procedures.

The Negotiations Process

Revised negotiations procedure: a "Negotiations Work Programme" would modify the current process, placing greater emphasis on the work needing to be done before a claim is accepted for negotiation, so that, once accepted, settlement quickly follows. Claims must be fully researched and proved before they will be accepted onto the work programme. Even if the Waitangi Tribunal believes a claim is well-founded, the Crown will develop its own view. Claimant representation: claimants will be required to present a "deed of mandate" before negotiations commence. A proposed law change would allow the Waitangi Tribunal to decline to hear claims where a sufficient mandate was lacking.

Ensuring finality: the deed of mandate would be publicly notified to help define the beneficiaries of a claim settlement. Where there is substantial disagreement, either the Waitangi Tribunal or the Maori Land Court would assist in resolving the issue. Claimant groups would also be asked to formally endorse the legal body receiving settlement assets. This endorsement would set out how the legal body will be structured to ensure settlement benefits are properly distributed. The jurisdiction of the Waitangi Tribunal and the courts to consider claims would be gradually wound back as settlements are concluded. Views are also sought on changes to the current system of memorials on Crown forest lands and assets transferred to State-owned enterprises which hold those lands for future settlements. The government would like these memorials removed before final settlements are reached. A law change is also proposed to provide that the Tribunal not hear claims settled since September 1992.

Consultation over the proposals

A series of regional hui will be held, followed by a national hui in April 1995. There is no structured negotiation with non-Maori groups, but submissions may be made until 19 May 1995. Beyond that, no process is outlined.

[ed: this envelope proposal was foreshadowed in the Sealord fisheries settlement. Exactly how its size was determined is, perhaps understandably, not stated (the documents make only general comments on this point). No cut off date for lodging claims has been set, but the Crown seeks submissions on this issue. June 1996 had been proposed, but is now considered unrealistic.

The Crown has presented only proposals and not firm policy (the size of the envelope is not debatable - but the concept is!). This might preven claims about the proposals being considered by the Waitangi Tribunal (claims must be about "policies" not proposals).

The revised negotiations process, requiring claims to be better proven before negotiations even start, may improve on the present situation, where claimants can undertake years of negotiation before knowing if their claim has been accepted as valid. However, a greater load would be placed on the claimants to organise and research claims before coming to the Crown - they must also establish their "deed of mandate", in itself a difficult task. There is a further hurdle in the suggestion that, even where the Waitangi Tribunal has heard and reported on a claim, the Crown will form its own opinion of how well-founded the claim is. This sounds remarkably like the Crown judging its own case. What purpose then, does a tribunal report serve?

Statements about claims concerning ownership of "natural resources" are controversial. In ruling out some of these claims, the Government is relying on a brief comment of the Court of Appeal in Te Runanga o Te Ikawhenua v A-G (CA 124/93, 17 December 1993) to the effect that Maori cannot make claims concerning electricity generation because they did not contemplate this use of water in 1840. The Court of Appeal may not have intended its comment to be read so broadly, and may have different views for different resources. Conservation groups may be disappointed that consultation with them remains ad hoc. The many suggestions on this aspect in the Parliamentary Commissioner's recent report on consultation, Environmental Information and the Adequacy of Treaty Settlement Procedures, seem to have been overlooked]

Heads of Agreement between HM the Queen and RTK Mahuta and the Tainui Maori Trust Board and others

21 December 1994. Office of Treaty Settlements, Department of Justice.

This document, signed by Tainui claimants and the Crown, records on a without prejudice basis matters agreed in principle to be contained in a later deed of settlement. No legal obligations between the parties or affecting any third party are created. Legislation will be required to give effect to the settlement. The agreement records that, among other things, the deed of settlement will contain:

- A public apology from the Crown for confiscating Waikato-Tainui land, and an estimate of the claimants that the raupatu (confiscated) lands have a minimum modern value of $12 billion.

- Confirmation of the return of the Te Rapa Air Force Base (value $4.123 million)

- Provision for the transfer, within 5 years, of 35,787 acres Crown controlled properties (of which 33,984 acres will be transferred without improvements). If the Crown elects, commercial leases in favour of the Crown will be negotiated over lands before they are transferred. The lands will have a market valuation. The Crown and claimants reserve rights, after consultation, to change lands offered or accepted in the package. On transfer, the lands will be held in the name of Potatau Te Wherowhero (the first Maori King) for the benefit of Waikato-Tainui people.

- Transfer of the rentals accumulated from forestry licences granted over the Maramarua and Onewhero forests under the Crown Forest Assets Act 1989. This will be achieved by a joint application to the Waitangi Tribunal, which will have to rule on a competing claim to the Maramarua forest by the Hauraki Maori Trust Board (Wai 373). The land in these forests is included in the 35,787 acres to be transferred to the claimants

- Reimbursement of $750,000 costs for research and negotiation of the claim

- The establishment of a land acquisition trust fund of $170 million, minus the value of lands transferred, and the $750,000 reimbursement of costs. Trustees will be appointed by the claimants after consultation with the Crown, capital and income are to be applied to acquisition of further land and improvements, including land for endowed colleges and provision of educational facilities, grants or scholarships

- An acknowledgement that the Treaty of Waitangi and its articles are not affected by the settlement and that an ongoing relationship in Treaty terms will continue to exist. Claims to the Waikato river and West Coast harbours will also remain unaffected.

The agreement notes that legislation will be required to implement the settlement to provide for the end of the scheme of resumptive clauses on the titles of state enterprise and former state enterprise lands in the claim area, the end of the scheme for returning forest lands under the Crown Forest Assets Act 1989 in the claim area, the end of annual payments to the Tainui Trust Board, and provision for the Head of Kahui Ariki recognised by the Tainui tribes (or nominee) to be a permanent member of any conservation board in the claim area, as well as "other provisions to achieve certainty, finality and durability" of the settlement.

Tainui in exchange will give up within the claim area (excluding the Waikato River and East Coast harbours), all claims concerning confiscation, claims to lands under the state enterprises and Crown forest resumptive schemes, claims to any minerals and forests and claims to 47,000 acres of land administered by the Department of Conservation (this last relinquishment is said to be a "free gift" from Tainui to the nation).

The agreement may be reviewed by the parties and terminated if they have not entered into a deed of settlement within 6 months. The claimants undertake to provide a deed of mandate authorising them to sign the deed of settlement. Finally, the agreement notes that the Waikato-Tainui confiscation was the largest by area, and that the redress outlined represents 17% of the total redress available to settle all historical claims (including the existing fisheries settlement) and "approximately 20% of the redress for all claims" excluding the fisheries claims.

[ed: in whatever terms it is measured, this is surely the largest offer ever made to settle a claim with a single iwi. There is much to be done before it is finalised. Many properties to be returned are subject to the "offer back" provisions of public works legislation, which have to run their course before the land is free for return. The claimants face hard a task of first achieving a deed of mandate, then ensuring that groups outside and within Tainui will live with the settlement. The Crown proposal, contained in its broad settlement package, to give the Waitangi Tribunal jurisdiction to "screen out" unrepresentative groups who make claims, may soon be required by these Tainui claimants. It is well known that "full and final" settlements in the past have failed to live up to their promise. This proposed settlement follows that same path and contains no provision for ongoing review. Perhaps the Crown is hoping this time that the scale of the redress and the ongoing activities of the land acquisition fund (which may have up to $65 million to work with) will prevent an erosion of the value of the settlement in years to come]

Te Tau O Te Reo Maori - Year of Maori Language

Te Taura Whiri i Te Reo Maori (Maori Language Commission)

This was launched on 13 December 1994 as He Taonga te Reo - 1995 A Celebration of Maori Language. Patrons of the year will be Dame Te Atairangi Kaahu and Sir Paul Reeves. With the help of corporate sponsorship (including TVNZ), activities will include a Pacific languages conference, a national Maori language survey, media events and the production of educational resources. MP Koro Wetere has promised more questions in Maori in Parliament. Each session will open with a prayer in Maori. For MPs, correct pronunciation will be encouraged.

Launch of the Decade of the World's Indigenous People

hrdesk@igc.apc.org

The decade (1995-2004) was launched on 8 December 1994, at a special ceremony in the UN General Assembly. Indigenous representatives of six different regions of the world (Arctic, NorthAmerica, Latin America, Asia, Pacific and Africa) addressed the meeting. Under the theme "Indigenous people: a new relationship - partnership in action", the decade is intended to be a time for the UN, governments and other organisations "to give priority to the new role of indigenous people as decision makers and beneficiaries of national, regional and international development activities" and to "commit themselves fully to promoting and protecting the human rights of indigenous people, reflecting those concerns in relevant programmes and activities." The full participation of indigenous people in the planning, implementation and evaluation of development activities affecting their lives should be the basis of this partnership. This decade arises from a UN resolution adopted in 1993 (48/163, 21 December), the International Year for the World's Indigenous People. One initiative is a proposal that 9 August each year be declared the International Day of Indigenous People. NZ lawyer Donna Hall, speaking for the NZ Maori Congress at the 8 December launch, commented on Maori disappointment over resourcing of the electoral option process, policy making about the settlement of claims without early Maori input, and inadequate facilities for Maori to independently prepare and debate policy. She urged the establishment of international standards so that the commitment of the state and indigenous peoples to each other can be fully and visibly debated.

Indigenous Claims and the Process of Negotiation and Settlement in Countries with Jurisdictions and Populations Comparable to New Zealand's

Background report for Environmental Information and the Adequacy of Treaty Settlement Procedures. Caren Wickcliffe. Office of the Parliamentary Commissioner for the Environment. September 1994

A 115 page report examining claims settlement procedures in Australia, Canada and the United States, from which Canada emerges as the nation "the most advanced in terms of developing a well-structured and open consensus negotiation and settlement process." The author suggests that the resolution of all outstanding claims in NZ will be assisted by the avoidance of national generic settlements, instead seeking "consensus" settlements taking early account of all affected interests, better addressing (following Canadian experience) of representation and self government issues, acknowledgement of indigenous ownership of claimed natural resources (a feature in all 3 countries examined), giving priority of rights to Maori over natural resources, and use of models of joint management over claimed natural resources.

[ed: This report is a useful and up to date summary, including for each country a brief summary of the constitutional background. Given that the title refers to "Populations Comparable to NZ" a quick description and census of the indigenous populations affected in each country would be of interest for comparison purposes]

Case Law on Consultation. Case Law under the Resource Management Act 1991, regarding the issue of consultation with tangata whenua, to 30 November 1994. Working Paper 2.

Ministry for the Environment Manatu Mo Te Taiao. November 1994.

This is an internal working paper and concise summary of the present law, released by the ministry in the hope that it will be useful to practitioners. 21 pages.

Employment. Addressing New Zealand's Biggest Challenge: Proposals for Action.

Prime Ministerial Task Force on Employment November 1994

The Task Force came up with 120 proposals, many of which focus on Maori unemployment. It suggests that the major political parties sign an accord which would include the objective of agreeing, by mid-195, on a comprehensive strategy to eliminate Maori disadvantage in the labour market. The key structural change suggested is the appointment of Local Employment Commissioners to chair local action groups liaising with Maori and other groups to devise local solutions to unemployment. A National Employment Commissioner and National Action Group would focus on national policies. These would include removal of impediments to development of resources in the Maori Trust Boards Act 1955 and reserved lands legislation, providing targeted business advice to Maori (particularly Maori women), and the possible appointment of Maori Employment Commissioners. It is also proposed that the parents as first educators scheme be piloted in a Maori context immediately, and that more resources be provided for language at kohanga reo and kaupapa Maori levels, particularly through the provision of more teachers. The number of Maori career advisors in schools should be increased. Research should be undertaken on the reasons for the career choices of Maori youth (to be completed by August 1995).

He Putahitanga. A True Partnership

NZ Labour Party. 14 December 1994

This Maori policy framework from the opposition party proposes, among other things: a face to face campaign to ensure more Maori are enroled for the next Maori option, a return to the former policy of devolving resources to Maori groups, and the establishment of an independent Maori Development Commission to monitor the work of Te Puni Kokiri (Ministry of Maori Development) and recommend policy initiatives. The continuation of the present claims resolution processes is advocated, including more support for the Waitangi Tribunal and a rejection of the "fiscal envelope" approach, which it is said will pit Maori against Maori. Other suggestions include the establishment of a Maori Cultural Foundation to handle all funding of Maori arts, piloting of a scheme allowing income support payments to be made by Maori trusts to beneficiaries, an increase in resources to early childhood education, the establishment of a Maori Education Authority to promote Maori education, encouragement of Maori sport, encouraging the use by Maori of resources to develop small businesses, providing funding for community based employment enterprises (COMBEES), and a review by the Law Commission of all legislation to identify provisions potentially discriminatory against Maori

[ed: some of the ideas need further work. An independent Maori Development Commission seems like a sound idea, but, as proposed, it would double up on the monitoring role of Te Puni Kokiri, and having it serviced by Te Puni Kokiri while it monitors that organisation may not make for the most rigorous examination. Labour will be seeking comment on these proposals through hui and informal discussion on marae in the coming months, but no definite timetable is set]

"The Queen's sovereignty must be vindicated": The 1840 rule in the Maori Land Court

NZ Universities Law Review vol 16(2) December 1994 p136. Bryan D Gilling

This article examines the origin of the 1840 rule in policy statements prior to 1865, and its formulation in the Native Land Court and Compensation Court hearings of the 1860s, where maintenance of British rule (Pax Britannica) and administrative convenience (certainty for settler titles) were paramount considerations. It is argued that there was and is no legislative authority for the rule, legislation seems rather to have envisaged a case by case approach to determining Maori custom. The rule was in any event inconsistently defined and applied. Its application in various parts of the country is examined.

Taumauri. Waikato Law Review

Vol 2, 1994

This isue contains: "The Challenge of Treaty of Waitangi Jurisprudence" (p1) by the Rt Hon Sir Robin Cooke, "Maori Women: Caught in the Contradictions of the Colonised Reality" (p125) by Annie Mikaere, "A Fiscal Cap on a Full and Final Settlement of all Maori Claims is Illegal and Inappropriate" (p171) by Martin Williams.

Annual index

Māori Law Review Index December 1994 to November 1995

Who represents Maori groups?

The Government is preparing to announce new proposals for the resolution of claims, but there is no sign that the fundamental issue of representation has yet been considered in a comprehensive way. According to the newspapers, Cabinet papers provide that tribes will be required to file a "deed of mandate". This has some similarity with proposals of the Treaty of Waitangi Fisheries Commission (Discussion Material on Allocation Models for Consultation with Iwi Te Ohu Kai Moana August 1994) which would require iwi to undergo a registration procedure before fishing quota would be allocated to them.

The procedure to determine representation attracting most interest is section 30(1)(b) of Te Ture Whenua Maori 1993, which provides that any person may apply to the Chief Judge of the Maori Land Court for him to request the Court to determine "the most appropriate representatives" of any group of Maori for the purposes of any consultations, negotiations or other matter. The latest decision under that section,In Re Tararua District Council (138 Napier MB 85, 1 November 1994, reviewed in this issue), has laid out some important principles for considering modern representation. The court has indicated it will not rely heavily on the disposition of iwi at 1840, or on Native Land Court determinations in the last century, but will rather look to recent arrangements which have developed from old principles. In addition, the court will place a premium on unity. Until now, divisiveness has had legal "rewards"; in claimant status before the Waitangi Tribunal, research funding, hearings before local authorities and the like, although the ultimate result has been the present confusion and gridlock over representation.

However, s30 may face a conflict with the Treaty of Waitangi Act 1975, which allows any Maori to bring a claim (s6). If a group secures a s30 order for negotiations over a claim and the right to lay future claims, what happens if another group from the same iwi lays a claim before the tribunal? The Government is said to be considering an amendment to the 1975 Act, allowing the tribunal to determine whether claimants before it adequately represent those on whose behalf the claim is made. Hopefully there will be some tie up with s30 to prevent overlap, or worse, conflicting decisions.

Ultimately, given the dynamic nature of Maori society and institutions, a policy for determining representation which is too rigid would be undesirable and might even be regarded as a breach of the Treaty. There should always be an allowance for new situations to produce new models and leaders, as the experience of the past few decades have shown.

Maori Land Court and Appellate Court

In Re Tararua District Council

138 Napier MB 85, 1 November 1994. Hingston J, with H Hohepa, S Jones as additional members

The district council applied under s30(1)(b)/1993 for a determination of the appropriate representatives of Maori in the district with whom it should consult over any matters requiring consultation, notice, negotiations etc. The request stemmed from a difficulty in determining between two groups, Tamaki Nui a Rua (Kahungunu), and Rangitane O Tamaki Nui A Rua, each claiming primacy in the district.

Held: neither group could claim to exclusively represent tangata whenua in the district. Both Rangitane and Kahungunu descended from common ancestors and had enjoyed historical rights of occupancy and use in the area. The matter should be adjourned to allow discussion between the groups, with the assistance of a facilitator if required, with a view to suggesting a common list of persons to be appointed as representatives. The court laid out principles it believed should be adopted in such proceedings:

- He ritenga ano: Maori society is not uniformly endowed with cultural resources. History has not had a uniform effect on Maori society, language and traditions, which in some areas are stronger than in others or have been adapted through the influence of religion. Historic circumstances of the claimant seeking representation rights need to be assessed.
- He rourou: Representation is about obligations rather than being simply an assertion of rights. The Court will seek to avoid models which lead to a growth in adversarialism, instead using those that provide scope for all parties to find that their interests have been addressed and acted upon.
- He au rere tonu: The court should not consider itself bound by the exact manner in which title was determined in the 19th century. Ascertainment of tangata whenua status requires a far more dynamic approach.
- Marae: The court should look to local marae in matters of customary authority, because it is probably the single most enduring institution in Maoridom. Change has not seen the creation of new tribes, but marae have continued, and new marae have been established and flourished in cities. The functioning of the marae can be seen as the expression of authority through customary practices.
- Customary authority: Authority which loses a legitimate basis becomes naked power or pokanoa, unsanctioned. Too much discussion about the future is focused on the situation of Maori during the 1840s (ahikaroa and customary take, while important, were not and are not definitive). The Maori politico-social structure was never static. The Maori Appellate Court in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673) determined that changes in tribal boundaries could not be brought about by warfare or force after the Treaty had been accepted, but other incidences of traditional change remained intact. Many hapu were assimilated or integrated with other hapu and their separate identity submerged by Crown dealings and actions of the Native Land Court. Some now seek their former status. The court will accept this re-emergence only when there is acceptance by all, particularly the hapu which have harboured them. In the absence of war, re-emerging hapu should adopt a consensual process relying on customary concepts such as whanaungatanga. There should be a deliberate process to ascertain the reasons for contemporary divisions. Existing entities, which have provided in the past for emerging groups, need to be part of any process leading to new groups.

Accordingly, the court found it odd that Rangitane people, claiming tangata whenua status in the area, failed to acknowledge their whakapapa links with Kahungunu. Inclusiveness ought to characterise strategies for iwi development such as those being pursued by the Rangitane group. For the Kahungunu group, which relied on current land ownership and argued that Rangitane were seeking to overturn longstanding arrangements, the court observed that Native Land Court determinations presented in evidence would not be seen as the sole or even major arbiter of current tangata whenua status. Existing marae are a more important factor which show a willingness to uphold the obligations that go with authority. Legal body corporates created in response to the government's iwi devolution policy and accompanying transfer of funding to iwi, do not necessarily have customary authority. Rather, authority is rooted in institutions which continue to exist such as marae.

Rangatiratanga should not be used as a weapon to exclude others, the emphasis should be on duties and obligations involved in the concept. Underpinning rangatiratanga are values such as whanaungatanga, manaakitanga and kaitiakitanga which raise the importance of reciprocity, stewardship and cohesiveness.

[ed: this is the first judgment to set out principles which may be followed in making s30(1)(b) determinations. It will be interesting to watch the further development or adoption of these principles in forthcoming judgments. The court noted that it retained the ability to appoint a mixture of representatives in an effort to force unity if the parties fail to agree a common set of representatives]

Waitangi Tribunal

Directions, memoranda on procedure, evidence and issues in the inquiry into the Ngati Awa, Tuwharetoa, and other claims of the Eastern Bay of Plenty as at end October 1994

Wai 46 & Ors, Doc #2.59, 11 November 1994

A lengthy memoranda concerning procedural and research issues affecting 11 claims and 9 other parties. Matters dealt with were:

- Order of hearing: where there are conflicting claims the tribunal seeks to have each group first appear to outline their claims on their own marae or other places of their choosing in order to satisfy the need to present claims in their own way and clarify issues and any conflicting interests. The alternative procedure of seriatim presentations by rival groups at the one place has been tried but found wanting. Statements of claim may be altered and the degree of support for any claim sounded out by preliminary hearings. Those groups with research completed first and otherwise ready to proceed will be the first heard.
- Procedure at hearings: extensive cross examination is discouraged, particularly in relation to historical evidence (which can be dealt with by written questions) and kaumatua evidence. The right to recall witnesses at a later stage after issues have been defined may be exercised. Where "binding recommendations" are sought a higher standard of proof will be required and a more court-like process adopted. The tribunal appears to have a power to adjourn its inquiry while parties undertake private mediation between themselves (this is apart from the mediation power provided in the 2nd schedule, Treaty of Waitangi Act 1975). Attempts to secure agreements on boundaries by mediation have not been successful in the past, but the tribunal encourages private mediation on selected issues and will give serious weight to agreements reached. Compulsory settlement conferences (a court practice) are not favoured as the 1975 Act contemplates that groups should air their grievances fully in the manner and place they choose unless special circumstances suggest otherwise.
- Referral of a "boundaries question" to the Maori Appellate Court: the tribunal "is not entirely convinced that iwi were [historically] arranged as state-like institutions with borders of approximate definition fuzzed only by contestable zones." Overlaps between groups could be extensive. The meanings of mana and mana whenua are also not certain. Loss of mana, and not just land, may have been a key factor in the impact of confiscations. There are doubts whether the issue for the MAC to consider under s6A/1975, which assumes the existence of definite boundaries, is the correct one in any event.
- Other matters: past settlement precedents suggest Maori groups are not limited to seeking reparation from Crown lands in their own area (assuming no competing claims on Crown land elsewhere).

Prima facie claims had been made out in respect of the Rotoehu forest and Te Mahoe village lands.

[ed: this lengthy memo is the most current and detailed statement on tribunal procedure for dealing with complex overlapping claims. The tribunal re-iterates its preference for limited cross-examination and a less court-like procedure generally. How far this preference can be realised remains to be seen. As an example of the adversarial nature of the proceedings, the memo also dealt with an allegation of bias on the part of one tribunal member (it found no real likelihood of bias and that any right to object had been waived). For a discussion of recent tendencies in tribunal procedure see R Boast "The Waitangi Tribunal: `Conscience of the Nation', or Just Another Court?" Uni NSW Law Journal vol 16 1993 p223]

General

Hazardous Substances and New Organisms Bill

No 48, 1994

This bill is intended to provide a comprehensive and consistent approach to the management of all hazardous substances and new organisms (including genetically modified organisms). It proposes that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga, and kaitiakitanga are matters which must be recognised and provided for by all persons exercising functions and powers under the Act (cl5). The principles of the Treaty of Waitangi are also to be 'taken into account' when exercising power under the proposed Act (cl6). When choosing members for the 5 to 7 member Environmental Risk Management Authority, which will control the manufacture or importation of new hazardous substances and new organisms, the Minister may consider, among other things, knowledge and experience of the Treaty of Waitangi or kaupapa Maori to be relevant (cl10). Not only must the authority consider the impact of new and existing substances or organisms on native organisms (which includes organisms introduced by Maori before European settlement), but also on exotic species valued for Maori traditional harvest or recreation (cl27).

[ed: a special select committee will hear submissions on the bill. Closing date for submissions is 3 February 1995. The pesticide sodium fluoroacetate (also known as 1080), is covered by the Bill. It is interesting to speculate how this proposed Act might have affected the current debate among Maori groups over the use of 1080 in Northland]

Deed between Her Majesty the Queen and Ngati Koata No Rangitoto Ki Te Tonga Trust and James Hemi Elkington

29 November 1994

This island, gifted by Ngati Kuia to Ngati Koata in 1824, was taken by the Crown for a lighthouse site in 1891. Compensation was ordered to be paid to the native owners in 1895. This deed records the settlement of a claim to the Waitangi Tribunal (Wai 95) complaining about that taking.

Ngati Koata and the Crown agree that the protection of the island and the conservation interests of Ngati Koata will be best achieved by declaring the island (currently a wildlife sanctuary) a reserve under the Reserves Act 1977. The Crown undertakes to consult Ngati Koata over management of the reserve. A remnant area of lighthouse reserve remains outside these consultation arrangements. In exchange, Ngati Koata, in exercise of their mana over the island and their role as kaitiaki, "as a free gift and symbol of partnership with the Crown" agree that their claim is satisfied by the deed and will withdraw it from the Waitangi Tribunal. The Crown does not admit the claim, but entered the deed to protect threatened species living on the island and to acknowledge Ngati Koata mana.

[ed: this settlement has been represented as "in effect" the return of the island to Ngati Koata who have gifted it to the Crown (Dominion 30 November 1994). The wording of the deed suggests something quite different. The Crown has agreed to create a nature reserve of what was formerly a wildlife sanctuary. The Crown will consult Ngati Koata about management - something it would have done in any event. Under the Reserves Act 1977, Ngati Koata preferences for management may not, as of right, be given any greater weight than those of, say, the Royal Forest and Bird Protection Society. In addition, the deed greatly simplifies future Crown consultation with Maori over the island. It is therefore difficult to see that Ngati Koata have gained from the Crown any tangible legal rights to better protect their interest in the island in exchange for relinquishing the legal right to pursue their claim]

Appointment to Office of Treaty Settlements

Department of Justice, 14 November 1994

Belinda Clark, presently a policy manager at Te Puni Kokiri, has been appointed to head the Office of Treaty Settlements, now being formed out of the Treaty of Waitangi Policy Unit.

Law Commission Annual Report 1994

NZLC R32, Parliamentary Paper E31

The commission has adopted a Maori name, Te Aka Matua O Te Ture, derived from the legend of Tawhaki who was exhorted to climb to the heavens by a main vine (with its roots in the earth) and not by the less secure tendrils. The commission has established a standing Maori committee of Bishop Manuhuia Bennett, Judge Michael Brown, Professor Mason Durie and Whetu Wereta to assist it in the "development of a bicultural framework for the law of New Zealand". A consultation strategy with Maori which has been developed is outlined, which may include limited financial assistance to assist groups to collect and present material. Guidelines for applications for this assistance are available on request. Two projects where Maori input will be sought are reports on reforming the laws of succession and the law of tenure and estates.

The Sealord Fishing Settlement. An International Perspective

Michael Robinson. Auckland University Law Review 7(3) 1994 p557

This article considers whether or not Maori who are aggrieved by the Sealords settlement could successfully make a complaint to the Human Rights Committee of the UN that, by passing legislation which extinguished Maori fishing rights, the NZ Parliament acted in breach of its international obligations as expressed in the International Covenant on Civil and Political Rights. Article 27 of the Covenant provides that "persons belonging to ... minorities shall not be denied the right in community with other members of their group, to enjoy their own culture". The complaint would be made to the Human Rights Committee under the "Optional Protocol" procedure which allows complaints from individuals where domestic remedies have been exhausted. The article concludes that it is difficult to predict the likelihood of success of such a complaint, but the potential for success exists. Notes that the Optional Protocol makes individuals subjects of international law, where formerly only states were, but that indigenous groups have yet to be recognised and presently must rely on "hybrid rights" such as those in article 27.

The Phenomenon of Agreement: a Maori Perspective

Mina Wharepouri. Auckland University Law Review 7(3) 1994 p603

Quotes Macneil (The New Social Contract 1980); "never has contract occurred without society; ... and never can its functioning be understood isolated from its particular society", as the background to a discussion of koha or the "gift exchange process" as underlying transactions between Maori and early Pakeha settlers. Utu and tika (etiquette) are important concepts underlying koha exchanges. Features of koha are; an obligation to give, an obligation to receive, and an obligation to repay. The concept of hau, which holds that possessions contain part of the essence of a person, underlies the obligation to repay. Although possession may be ceded, hau means that a portion of ownership of the good is retained. Repayments accordingly acknowledge and strengthen links between people. Before 1840 Maori did not have a word meaning full and permanent extinguishment of all rights for consideration amounting to a sale. This affected the understanding of early land transactions in the Muriwhenua region. The Treaty of Waitangi can be considered as a special contract, with Maori transferring the hau of their lands, but not the mana.

[ed: the view that different expectations existed for early land transactions in Muriwhenua is presently under consideration by the Waitangi Tribunal in its hearing of the claim Wai 45]

Australian National Native Title Tribunal ruling

Aboriginal Law Bulletin, October 1994

The tribunal has made its first decision under the Commonwealth Native Title Act 1993, ruling that native title does not exist on 3.7 hectares of land in a proposed residential subdivision 165 km north of Brisbane. This was an unopposed non-claimant application brought by the owners of the affected land. The decision was on the basis that Crown dealings with the land have been wholly inconsistent with continued aboriginal title (it was designated as a roadway). The land is in the traditional country of the Gubbi Gubbi people, whose other claims are not affected.

Restitution of Land Rights Act (South Africa) 1994

South African Financial Mail 18 November

The Act allows any person or community to claim restitution for dispossession of land rights under apartheid laws since 19 June 1913. However, restitution will not be given in cases of "bona fide" expropriation under the Expropriation Act where "just and equitable" compensation was paid. Claims are advanced by a 2 step process. A Commission on the Restitution of Land Rights will investigate the merits of claims and may mediate a settlement. Where claims remain unsettled, the commission will present evidence to a Land Claims Court which may order the State to restore the land where this is "just and equitable". This can be achieved by handing over land if it is in State hands or purchasing the land if it is in private hands. Where restoration is not feasible (the interests of all parties, including any private landowner, and present use, are considered), equivalent State-owned land or compensation may be ordered. Ninety five rural communities and about 110,000 urban families affected by apartheid laws are expected to have claims. Claims must be lodged within 3 years, and it is hoped to complete the entire process within 5 years.

[ed: in South African terms, the Act affects few people and is expected to cost little to implement, but is seen as an important symbolic gesture. Experience with claims processes here and in other countries suggest the estimates as to cost and time are optimistic]

Proposed Maori Electoral Districts

1994 Representation Commission

The Maori seats proposed by the commission, Te Tai Tokerau, Te Tai Hauaru, Te Tai Rawhiti, Te Puku O Te Whenua, Te Tai Tonga are based on existing Maori electoral boundaries, the community of interest among Maori people and members of Maori tribes, communications, topographical features, projected population changes (these criteria are in the Electoral Act 1993). Te Puku O Te Whenua district is said to be "a symbolic reference to the centre", and "in spite of an apparent diversity of Iwi within this electorate the territorial integrity of each has for the most part been accommodated." The Maori electoral population of the Chatham Islands is included in Te Tai Tonga. Boundaries go to the limit of the territorial sea to avoid questions regarding eroded or accreted or reclaimed areas. Maori members of the Commission are W Gardiner (TPK), J Brown (government rep), W Wereta (opposition rep). Objections must be received by 21 November 1994. After hearings, the final boundaries are expected to be gazetted on 27 April 1995.

Maori Land Court and Appellate Court

Maioro lands Case stated

1990/1, Waikato-Maniapoto ACMB, 12 September 1994. Hingston J, Carter J, Marumaru J

While hearing a claim concerning Maioro lands on the northern side of the Waikato river mouth, lodged by a Ngati Te Ata group, the Waitangi Tribunal became aware of a "cross claim" from a group identified as Ngati Karewa/Ngati Tahinga. The tribunal referred a case stated to the Maori Appellate Court under s6A Treaty off Waitangi Act 1975 to determine which Maori according to customary law principles of "take" and occupation or use had rights of ownership in the area, and if more than one, what were the tribal boundaries. Held: Although not permanently occupied by any group, Ngati Te Ata held rangatiratanga and ownership according to customary law over the Maioro lands from 1840 to 1865, when the lands were Crown granted to Ngati Te Ata. The court rested its analysis on the classic grounds of discovery, take tupuna (ancestry), take raupatu (conquest) and take tuku (gift), used in the past by the court and most recently in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673). These principles were applied to whakapapa evidence from the claimants and historical reports about land dealings prepared by the Crown and Ngati Te Ata researchers. The case included discussion of kaitiakitanga and its relationship to ownership for the purpose of determining customary rights. The court was concerned that other hapu of Tainui might have an interest, but on receiving no submissions from other hapu determined the ownership in Ngati Te Ata. [ed: Judged by this and the Ngai Tahu Trust Board decision, the present land court judges are happy with the criteria developed by the old Native Land Court when determining customary issues, although recent research (most notably A Ballara Origins of Ngati Kahungunu) and comments of the Chief Judge (see below) suggest those criteria may need modification]

Section 30 applications update

Office of the Chief Judge, 1994

Seven applications received by the Chief Judge under s30(1)(b)/1993 have now been referred to the Maori Land Court to determine who are the appropriate representatives of Maori groups in particular areas for particular purposes. The purposes include consultation under the Resource Management Act, consultation over sacred sites and traditional fisheries, negotiations over Treaty claims settlements, receipt of benefits allocated by the Treaty off Waitangi Fisheries Commission. In the North Island, applications are from Whakatohea, Pahauwera, Ngati Paoa,, and Ngati Toarangatira groups (see Ngati Toarangatira Manawhenua case below), and one from Tararua District Council (seeking to know who to deal with between Kahungunu and Rangitane groups under the RMA). In the South Island, applications concern representation for the Arahura and Mawhera regions of Te Tai Poutini and the region between the Hapuku and Clarence rivers on the east coast. In two cases, Whakatohea and Ngati Pahauwera, final orders have now been made. The court did not issue a written judgment giving reasons in each case but simply issued orders naming the representatives. [ed: In comments made when referring these matters to the Maori Land Court, the Chief Judge has noted that s30(1)(b) confers a discretionary power and he must act extra judicially in making referrals, subject to the usual rules of administrative law. Accordingly, his discretion has been advanced by letters and inquiries (with copies to all parties, and an opportunity to respond etc) and not by formal memoranda or sittings. The major concerns at this discretionary stage have been: - Finalising the proposed terms of reference ie for what purposes the representatives shall act - Satisfying the Chief Judge that reasonable steps have been taken to determine representatives and that these have been unsuccessful (s30(2)) - Consultation over the skills required of additional members (not nominations) appointed by the Chief Judge to the court to hear the application (s33(3).]

Ngati Toarangatira Manawhenua ki te Tau Ihu Trust v Te Runanga o Toa Rangatira Inc & Maori Land Court

CP 228/94, 16 August 1994. Neazor J

Ngati Toa groups had sought a determination by the MLC under s30/1993 as to appropriate representatives off Toarangatira for the purposes of; receiving certain fisheries quota, consultation with territorial authorities, and negotiating with the Crown over surplus lands disposal in the South Island. The plaintiffs challenged, by way off judicial review, a decision of the MLC setting an early fixture date, arguing that they required further time for preparation. Held: the MLC in deciding on a date for hearing is exercising a statutory power affecting rights which is amenable to review. The power to fix dates is discretionary however. On the facts of this case the court had considered all relevant matters and natural justice was not denied by the court in fixing a date earlier than the plaintiffs desired. Waitangi Tribunal Maori Tertiary Education claim Wai 431, 23 September 1994. JR Morris After a conference, the tribunal deferred inquiry into this claim on the basis that the Todd report on the funding off tertiary education was not yet part of government policy, and it would not be possible to determine whether there was any likely prejudice to Maori when total arrangements as to tertiary funding changes have not yet been decided. Leave was given to reintroduce the claim if required when a government decision on funding is made (likely before the end of the year according to Crown counsel), or in 1995 if no decision has been made by then (at which time an inquiry might focus on the delay). Memorandum re jurisdiction in the Chatham Islands claims Wai 64 & others, 5 October 1994. CJ Durie, Prof G Orr Counsel for claimants sought a determination that the tribunal could consider, under s6 Treaty of Waitangi Act 1975, whether the "1840 rule", a judge made rule of the Native Land Court, was inconsistent with the principles of the Treaty of Waitangi, being a rule made by the court acting by or on behalf of the Crown. Held: the tribunal has yet to determine the precise content of the 1840 rule. As to whether the land court acted on behalf of the Crown, "the Crown" formerly referred to the monarch but now commonly means the executive government. It does not include Parliament. Past legislation establishing the land court reflected measures for the general courts which emphasised the doctrine of the separation of powers. If the land court were found to be part of the Crown, it would follow that other courts were also the Crown. The Crown when used in contemporary statutes without other embellishment refers to the executive and not to Parliament or the courts. Arguments that the Treaty of Waitangi Act 1975, because of the special matters it seeks to address, might use the term differently, were rejected. It was accepted however that the tribunal is not concerned with the legality of actions of the Crown, but whether they are consistent with the principles of the Treaty. It is unlikely therefore that the legal sufficiency of Crown actions alone will necessarily constitute Treaty compliance. Arguments were also rejected that this matter should be decided by reference to the Treaty itself and "kawanatanga". That word does not suggest that less than full sovereignty was ceded by Maori, as earlier tribunal reports make clear. The supremacy, if not the precise nature, of the new governorship was understood. The tino rangatiratanga retained by Maori was necessarily altered from that of olden times to allow for the Queen's pre-eminence. Read as a whole the Treaty does not describe a continuing relationship between sovereign states. It is arguable that since Maori at 1840 were unaware of the separation of powers they may have viewed any act of the British, including actions of the land court, as acts of the Crown. Passages in the Te Roroa report suggest this. However, the present issue must be determined by looking to the intention of the legislature in passing the 1975 Act, not the understanding of Treaty participants at 1840. It is significant that the 1975 Act specifically provides that the tribunal may consider statutes, which are not normally considered acts by or on behalf of the Crown, yet is silent about the courts. Submissions that the NZ Bill of Rights Act 1990 and international instruments are relevant were rejected. Agreeing with comments in the High Court in the Te Runanga o Wharekauri Rekohu Inc v Waitangi Tribunal (CP M8/94, 12 May 1994), the tribunal may however look at land court decisions to see if they are consistent with the Treaty, and where they are inconsistent, whether the Crown omitted to take action to remedy the situation. A finding that a decision of the courts is inconsistent with the Treaty in no way impugns the legality of the court decision. [ed: many of the arguments of counsel suggested that unless the tribunal could review land court judgments as Crown actions no remedy would exist for claimants. The tribunal believes that it may still provide a remedy by reviewing Crown actions pursuant to court decisions. The tribunal decision is not surprising. In the High Court it was suggested that this would be an appropriate finding, and a contrary approach may have carried an implication that the tribunal itself is an agent of the Crown] Preliminary views on the meaning of "manawhenua" for the Chatham Islands claims Wai 64 & others transcripts, 13 October 1994. Chief Judge Durie At the recent Chatham Islands hearing the Chairperson expressed preliminary views on the meaning off "manawhenua". The term may have 2 meanings; long term ancestral connections with the land, or status and authority held at any particular time. Historically it seems to have attached to persons. The operation of the land court may have distorted the concept so that it applied to the ownership of defined land areas by groups. There may be doubt whether the words "mana whenua" and "tangata whenua" as defined in the Resource Management Act accord with Maori custom. "Tangata whenua" may mean the home people of a marae, those with ancestral association with land, or those who have come into the land through intermarriage, or even "Maori people off NZ". Words must be used carefully so they do not develop a "tyranny" of their own, especially where the Maori thinking behind them is not explored. It is not certain that the land court in fact determined mana whenua and tangata whenua status or had any authority to do so. Moriori and Ngati Mutunga may both have manawhenua inn the Chathams but of a different type, and both may be tangata whenua.

Other jurisdictions

Atawhai Taiaroa and others v The Minister of Justice and others

CP 99/94, 4 October 1994, McGechan J

The plaintiffs claimed that the "Maori Option" exercise of February to April 1994, which permitted Maori in that period to choose between the Maori roll and General roll, was unlawful because it was held without adequate notice or Crown resources. Maori had in fact 3 options. To be on the General roll identified as Maori, on the General roll and not identified as Maori, or on the Maori roll. The option was conducted under ss76-79 Electoral Act 1993. Its outcome determined, by a technical calculation, the number of Maori seats. This calculation is particularly sensitive to Maori on the General roll and identified as Maori shifting to the Maori roll. A group off Maori making this shift would have more impact on the number of Maori seats than a similar sized group coming fresh on to the Maori roll (eg using present figures, 50,000 new electors on the Maori roll would result in 6 Maori seats, but 50,000 Maori switching from the General to the Maori roll would result in 7 seats). Conversely, it was not "neutral" for Maori to remain on the general roll identified as Maori. The option came about after representations from pan-Maori organisations in 1993 seeking retention of the Maori seats under the proposed MMP system. This, and the MMP proposal generally, were provided for in the Electoral Act passed in August 1993. In November 1993 a nationwide referendum chose MMP as the preferred electoral system. Maori voted for MMP in a higher proportion (2/3) than the general population. The election result required the Minister off Justice to set a date "as soon as practicable" for the Maori option. From September 1993 publicity about the option had been available. The Minister set the date for the option as February 1994, but did not consider ann extensive publicity campaign, including television advertising, was required. Immediately prior to the option the Waitangi Tribunal reported on a claim seeking further resources to inform Maori, and recommended further funding be made available. Cabinet subsequently rejected a proposal t spend an additional $250,000 on publicity. The result of the option had been an increase from 4 to 5 Maori seats.

Held: the Minister had not acted unlawfully in exercising his discretion as to the timing of the option and its conduct. The discretion arose under the Electoral Act 1993 (the treaty itself could not give rise to rights, nor could international law unless incorporated by statute, nor did the NZ Bill of Rights provide especially for Maori rights). Before setting the option date the Minister had to be satisfied that as far as reasonably achievable under all prevailing circumstances, "target" Maori were sufficiently informed of the option implications to make a meaningful choice. Reasonableness would take account of the importance of the issue, the desirability in principle of fullest information to all, qualified by issues of time, expense, cost benefit and expectations. Among reasons for rejecting the many heads of claim:

- There was no absolute duty to consult with Maori before making the decision. The Minister was only required to be adequately self informed on these issues

- The Minister could take account of the recent close election in setting the date for the option in as far as it suggested a fresh election might soon be held and the MMP system needed to be in place as soon as possible

- There was no requirement to inform Maori not yet enroled. The option was only to those enroled on the Maori roll, or enroled on the General roll and identifying as Maori (the 'target" group)

- While there was a partnership obligation of good faith, it would be stretching fiduciary duty principles to find a fiduciary duty here

- There was no legitimate expectation that an education campaign would be undertaken. No government statement or well established practice was in evidence. There must be more than a "reasonable" expectation

- As to the conduct of the option, the publicity was incomplete (in particular not giving details of the technical calculation of the number of Maori seats) but not significantly misleading overall (but noted that it was not pointed out that the number of Maori seats could be reduced if enough Maori chose the General roll)

- As to the rejection of Waitangi Tribunal advice, such advice was not mandatory, although highly respected. The Crown was entitled to look at financial constraints (as it did) a matter on which the tribunal report was weak. Rejection of the tribunal view might be wrong, but not beyond reason

- The Minister did not have to go beyond a direct mail out of the option applications, since this was the method provided by the legislation.

The final ground pleaded of substantive unfairness caused the most difficulty. The test was whether in all the circumstances, the conduct of the option unfairly deprived Maori of a proper opportunity to make an informed choice. The court considered affidavits providing anecdotal evidence that many Maori might not have had adequate information, as well as the Waitangi Tribunal report predicting further resources would be required. Most significant were final figures for the option which showed that up until the beginning of the option, Maori coming onto the rolls were not aware of the implication of choosing to go on the General as opposed to the Maori roll (despite publicity on MMP up to that point, which the Minister considered made Maori informed and ready for the option exercise). There was a sharp increase during the option period in the Maori roll, but most of this increase came from new Maori enrolments and not any switch of existing enroled Maori. All this suggested a "worrying degree of ignorance within a portion of eligible Maori" not cured by mailouts or written material. The approach of Cooke P in Thames Valley EPB v NZFP Pulp and Paper Ltd (1994) 2 NZLR 641 was followed. Where a procedure is marginally adequate a matter might survive review, but fail where the decision was also marginal. In this case the Minister's decision as to resources narrowly survived. The procedural side had tolerable strength, but the decision, while not irrational, was to some degree wrong in hindsight. There was not therefore substantive unfairness, but the Crown should feel "some concern" at what had occurred.

As to the Treaty, while treaty obligations are not directly enforceable by the court, the creation of the 4 Maori seats was consistent with the Treaty (whatever the political reasons for their creation originally). The Crown is under a Treaty obligation to protect and facilitate Maori representation. It would not for example be consistent with the Treaty to now deny separate Maori representation. In this light the Crown should reflect on the resource decision made, which was based on an important underlying misconception as to the degree of Maori understanding of the implications of the option. Maori were significantly disadvantaged. An "extensive effort" might be considered when the option is next exercised in 1997.

[ed: the court focused on the complexity of the choice Maori had to make under the option and the decision to use what were described as "minimal" resources to explain it. Whether increased resources would have brought more new Maori electors onto the rolls was irrelevant. As the court explained, the option, by law, was aimed only at Maori already on the rolls (Yet the efforts of Maori groups before and during the option, and submissions by counsel, made much of census figures showing a "lost tribe" of up to 50,000 Maori not on any roll). This was a close decision. The appeal (now proceeding) is awaited with interest]

KM Grace v WG Grace

CA 211/93, 26 October 1994. Cooke P, Richardson J, Tipping J

A wife, on separating from her husband, sought a half share in his interests in Maori freehold land claiming that,, because of conduct and intentions during the marriage, there was a resulting trust or a constructive trust in herr favour. These trusts existed quite apart from the Matrimonial Property Act 1976 which does not apply too interests in Maori land (s6). The wife sought to have the trust proceedings dealt with in the High Court. Thee husband objected, arguing that the Maori Land Court had exclusive jurisdiction to consider the matter. The Highh Court determined that it could consider the matter. The husband appealed. Held: Although Te Ture Whenua Maori 1993 failed to carry over a provision of the Maori Affairs Act 1953 giving the High Court concurrent jurisdiction and therefore the ability to exercise its inherent jurisdiction in relation to trusts (compare s18/1993 and s30/1953), that concurrent jurisdiction nevertheless remained under the 1993 Act (although it was noted that the 1993 Act spelt out more explicitly those areas where the MLC has exclusive jurisdiction). Noted that the High Court, or MLC if it considered this case, would have to have regard to the policy and provisions of the 1993 Act designed to promote the retention of Maori freehold land in the hands of its owners, their whanau and hapu and restricting spousal interests to life interests in matters of succession. Further noted that, in view of these considerations the wife here sought only the monetary equivalent of Maori freehold interests and not a vesting order for the interests themselves. If a question of tikanga Maori arose it could be referred by way of case stated to the Maori Appellate Court.

[ed: a brief but important judgment. The general courts are to retain a potentially important role in the development of Maori land law. It also suggests that non-owning spouses, on separation, may sue for the monetary equivalent of part of their partner's interests in Maori freehold land]

Auckland Casino Ltd v Casino Control Authority & Others

CA 181/94, 20 October 1994. Cooke P, Hardie Boys J, McKay J

An appeal from a High Court decision in July 1994 (see MLR Aug 1994) dismissing an application for review off the decision of the Casino Control Authority to grant the Auckland casino licence to Sky Tower Casino Ltdd rather than a consortium which included the Maori Congress backed company, Aohou Ltd. The appeal raisedd only two grounds from the High Court proceedings, presumptive bias and apparent bias by reason of certainn shareholdings and activities of some authority members. An argument that the authority displayed an anti-Maori bias in certain of its actions was not pursued. Held: there was at most a borderline case of presumptive or apparent bias but there was a waiver by the appellants in failing to raise these matters at an earlier stage and in failing to move quickly after the authority decision was delivered. The Maori aspect of the failed bid, including the desire to enhance the welfare of Maori, was not to be "overlooked", but also noted was the considerable expenditure already undertaken by the successful applicant, and doubts the authority had had about details of the proposal of the Maori backed consortium. [ed: this would appear to bring to an end the Maori Congress interest in the first Auckland casino] Te Runanganui o Ngati Kahungunu Inc v Gemmell and others CP 21/94, 6 October 1994. Grieg J An application for variation of receivership orders, notable for the rejection by the court of an argument that thee current receivers be replaced by a senior officer from Te Puni Kokiri who, it was argued, would bring ann important "Maori dimension" to the receivership exercise.

Ngati Kahu and others v Pacific International Investments Ltd & Tauranga District Council

A72/94, 20 September 1994. Bollard J & commissioners Dr AH Hackett, Mr IG McIntyre

The council notified a change to its transitional district plan to allow for future urban development in an areaa previously zoned for rural use and the site of a river important to local Maori and of two hapu communities withh longstanding links with the area. The change reflected an urban growth strategy developed during 1991-91. Thee appellants challenged the basis of the plan change. Held: the council had failed to adequately consult with Maori in terms of the RMA when developing the urban growth strategy. Subsequent consultation was misconceived, being aimed at minimising the impact of a policy already decided. Previous cases concerning consultation under the RMA with Maori which held that there should be no direct consultation by councils over resource consents (Ngatiwai, Hanton et al) could be distinguished as they did not deal with the development of plans. Comments in Wellington Airport Ltd v Air NZ [1993] 1 NZLR 671 re consultation were quoted with approval. Consultation does not necessarily produce consensus, but it must continue for a reasonable time so that all reasonable planning options can be explored. Repeat consultations may be required even after plans have been approved. Councils cannot provide guarantees of unalterability however, but must step back once plans are notified in order to judicially consider submissions on the plan. [ed: a significant case on consultation requirements when developing district and regional plans. The court noted that this council was to some extent "caught out" in the transition between the loose requirements under the Town and Country Planning Act 1977 and the much tighter requirements of the RMA]

General Report of the Reserved Lands Panel 1993

Te Puni Kokiri, January 1994 (released October 1994). P Trapski, G Kirby, R Cooper

A report of a panel appointed by the Minister of Maori Affairs to consult on proposals to resolve Maori reserved lands issues contained in A Framework for Negotiation - Toitu Te Whenua 1993. The panel, after hearing submissions, broadly supported the proposals but recommended, among other things: - Greater emphasis on the proposal that owners and tenants reach their own solutions, with the Crown playing a role of facilitation by providing financial and legislative assistance, professional advice, and possibly purchasing properties as required - Leases should terminate after 2 further 21 year renewal periods (the Framework document recommended 3 renewal periods) - Rents to be reviewed at market levels in 3 years, then every 3 years following (the Framework proposed 14 years). This rent to be assessed using benchmark values provided by Valuation NZ that bear some relation to the "land value" approach, and not just "unimproved value" wIn the remaining term of leases, owners to be given the first right of purchase at a market value - Owners be empowered to sell their interests at market value - The Maori Trustee to be gradually phased out of the administration of reserved lands. The proposal of the Framework document that tenants not be compensated for changed arrangements, but merely assisted in case of hardship, was supported. Compensation should not be payable to those who had received the benefit of an unjust contract, whose injustice was known in general terms before and certainly after the 1975 review of reserved lands. [ed: the panel recommended giving power to owners to sell their interests on the basis that to deny this would be contrary to the Treaty and, as economic benefits from the land grow, the likelihood of sales "for survival purposes" will be minimised. Te Ture Whenua Maori 1993 is more stringent, requiring consent from 75% of shareholders before incorporation lands can be sold, which is difficult to obtain (the panel noted this point twice)]

Mana Tangata. Draft Declaration on the Rights of Indigenous Peoples 1993.

Background and discussion on key issues Te Puni Kokiri 1994

Seeks further views on the draft declaration, because of changes to it since 1990. Major issues are outlined, inn particular the meaning of "self-determination" (which the NZ government takes to mean "self-management" andd not secession), and the definition of "indigenous people". Includes also the text of the "Mataatua Declaration" onn cultural and intellectual property rights. Submissions are due by 31 October 1994. Native Title Re-established. Paper to International Bar Association 25 Biennial Conference, Melbourne Office of the Chief Judge, 13 October 1994. E T Durie Deals with the nature, extent and limitations of native title. The Native Land Court simplified Maori land tenuree and ignored a complex web of overlapping use rights. Three levels of rights existed, use rights by individuals,, political rights of the tribe, and associational rights. The actions of the land court "confiscated" political andd associational rights, and, in some cases, individual rights (eg where names were left off ownership lists). Alienationn and extinguishment of native title are also considered. In "strict terms" the Treaty seems to forbid compulsoryy acquisition, and place a restriction on the sovereignty ceded by it, which is not "readily diminished" by the balancee of convenience (the Te Maunga report, which came to a contrary opinion, is mentioned as one which "otherr divisions of the Tribunal may not be inclined to follow"). Expresses surprise that the Australian Native Title Act 1993 places the onus on Aborigines to establish their right to land while the Crown may rely on legall presumptions and fictions, but hopes that the Act will provide a new form of title built on a customary base andd facilitate pragmatic arrangements for future management.

New Zealand

A bill sponsored by the Hon Graeme Lee, and currently before a select committee (the Flags, Anthems, Emblems, and Names Protection Amendment Bill), seeks to ensure that the NZ flag, and the anthems "God Save the Queen" and "God Defend NZ" (declared in the bill to be "National Anthems of NZ") shall remain the national symbols, unless 65% of the members of the House or a majority in a national referendum agree otherwise (Her Majesty retains power to alter her own anthem however).

This proposal is in stark contrast to the current discussion about changing the name of New Zealand to Aotearoa. Some commentators have suggested that "Aotearoa" is not useful because it is a recent invention. This may be a little academic however since the place of Aotearoa in common usage seems assured. Many government departments and private agencies happily use it in their titles. It appears in all new passports. The Maori Language Commission has sanctioned its use. Thousands of documents produced every day contain it. Maori elders have been suggesting a name change for some time (most recently at Waitangi this year - Mana News 13 September 1994).

Perhaps the NZ Geographic Board Act 1946 could be useful here. One of the functions of the board is to "collect original Maori place names for recording on official maps" (s8(1)(f)). The current proposal would surely get support from the 2 persons appointed to the board as "representatives of the Maori race" (s3(2)). Unfortunately, the Board may only consider altering names to any place in NZ (the title to the Act gives it away). A pity, when another function of the Board seems particularly suited to this debate, namely s8(1)(e): "To determine what alien names appearing on official maps should be replaced by Maori or British names".

Maori Land Court and Appellate Court

In Re Nuhaka 2E3C8A2B

92 Wairoa MB 214, 22 August 1994, Isaac J

This case concerned the new provisions of the 1993 Act requiring that alienating owners give the first right of refusal to persons belonging to preferred classes of alienees. An application for confirmation of an alienation of Maori freehold land was opposed by trustees of an adjoining block of Maori land who claimed to be members of the preferred class of alienees who had not been given first right of refusal. The alienating owners questioned whether these persons did indeed belong to the preferred class.

Held: that the trustees and the beneficiaries they represented were of the preferred class, being whanaunga of the alienating owners associated with the land in accordance with tikanga Maori, and trustees of such whanaunga (s4(b) & (d)/1993). The reasons being:

- The court may only rely on the evidence before it, but must also consider the preamble to the 1993 Act, principles for interpreting the Act generally in s2 and general objectives in s17 which favour retention of land in Maori hands as far as possible.
- The adjoining trustees and the beneficiaries they represented could whakapapa back to an ancestor who was common to the owners in the block which was being sold.
- It did not matter that the common ancestor was some generations removed. "According to Tikanga Maori, right to land is validated by Whakapapa. The earlier the ancestor the stronger the right to that land. Land was claimed by Whakapapa because in accordance with Tikanga Maori all things were derived from the ancestors and were passed on to future generations. If a person can Whakapapa to an original owner or occupier of the land that person has a right to the land. The Whakapapa presented to the Court does not lose strength because it traces back for generations. In terms of Tikanga Maori it gains strength."
- The physical association with the land was a tenuous one (taking horses to it, walking across it to go to school, picking mushrooms), but tikanga Maori looks beyond a simple physical association to consider also historical and spiritual links. These links remain despite partitioning which has split up the original block. Although the trustees and their beneficiaries may not have used the land for many generations, their "inchoate rights" remained by reference to past association and whakapapa.

[ed: an important decision, perhaps the first of many, which sets out the principles on which the court will operate in this difficult area. Most importantly, the court has decided that the individualisation of title to land in the last 100 years is to some extent in Maori terms an artificial process, and physical links with a particular small block will not be the key criteria for membership of the preferred class. There may be implications in this approach for matters before the Waitangi Tribunal, and Te Ohu Kai Moana, where historic links with resources are under debate]

Waiohau B Section II and Oputea B2 Blocks

Tauranga MB 8 September 1994

This decision concerned the extent to which the land court may make orders when no party before it has applied for the orders made. In the course of disposing of 2 applications affecting a s438 trust, the court, of its own volition, made an order under s438(3)(a)/1953 replacing two existing s438 trustees with the Maori trustee. The jurisdiction to do this was s27(2)/1953 which provided that in the course of proceedings on any application the court may exercise any other part of its jurisdiction as it deems necessary. Section 27(2)/1953 has now been replaced by s37(3)/1993.

The order was appealed. The Appellate Court noted that the order had been made without giving notice, and, with the agreement of the parties, referred the matter back to the lower court for a rehearing.

In the course of rehearing, one of the parties requested the court, using its jurisdiction under s37(3)/1993, to appoint additional trustees.

Held: the request should be declined. Section 37(3) provides that further orders may be made only in the course of proceedings on an application. The rehearing had not arisen from an application, but from an exercise of the predecessor of s37(3) in the hearing of an earlier application that was now disposed of. The rehearing was therefore limited to the matter referred by the Appellate Court, removal of existing trustees and appointment of the Maori Trustee.

It was also noted that s438(3)(a)/1953 does not give jurisdiction to the court to remove a trustee who disputes that removal (Alexander v Maori Appellate Court & Ors [1979] 2 NZLR 44 followed).

Re Ngamanawa Incorporation

53 Tauranga MB 293, 24 August 1994, Carter J

A brief judgment which suggests that because the Maori Incorporations Constitution Regulations 1994 take effect from 1 June 1994, applications for appointment to committees of management filed prior to this date should follow the old procedure under s52(4)/1967. That procedure requires the forwarding of nominations to the court for it to make the appointment (the 1993 Act and new regulations do not require application to the court. See s269(5) & s284(2)(l)/1993 and cl 22-23/1994)

The Maori Occupation Orders Regulations 1994

1994/201, 12 September 1994

These set out the information to be contained (including a sketch map) in applications and the notice of applications required for the making of occupation orders under Part XV of the 1993 Act. The regulations come into force on 13 October 1994 (Part III of the Maori Land Court Rules 1994 also applies to occupation orders).

Maori Appellate Court Appeals 1990-1993

Maori Land Court September 1994

This compilation of judgments in typescript form contains 60 separate judgments and 433 pages and is available from the office of the Deputy Chief Judge of the Maori Land Court, Wellington.

Waitangi Tribunal

New tribunal member

Waitangi Tribunal press release 21 September 1994

The Hon Dr Michael Bassett has been appointed to the tribunal. He is a historian with several published works and a former Labour member of Parliament. The appointment gives the tribunal its full compliment of 16 members.

Te Maunga Railways Land Report

Wai 315. August 1994. Judge HK Hingston, P Ringwood, E Stokes, M Temara

This is a report of an urgent hearing concerning the offer back to the original Maori owners of 6070 square metres of Maori freehold land known as Te Maunga railway land. The land was taken in 1955 for railway purposes under the Public Works Act 1928 and used for housing for railway employees.

Nga Potiki hapu of Ngai Te Rangi owned lands at Mt Maunganui which were confiscated under the NZ Settlements Act 1863 and their customary title extinguished. Several blocks were returned as Maori freehold land. The Te Maunga land was part of one of these blocks, the Papamoa block. From 1913-61 various takings occurred in the Papamoa No 2 block for railway related purposes including the taking of the Te Maunga land in 1955.

Negotiations for the taking were undertaken with only 3 shareholders (holding 56%) out of 22 shareholders in the land. Compensation was assessed by the Maori Land Court and paid in the normal manner. The evidence suggests the owners would have perceived the taking was compulsory and a matter out of their control (there had been other takings in the area at the time), ie they were not willing sellers. Crown policy in such situations was for taking the freehold title. Accordingly, options such as leasing, which would have preserved the parent title in Maori hands, were not considered.

In 1985 Railways sought to dispose of the land. Section 40(1) Public Works Act 1981 and s23 NZ Railways Corporation Restructuring Act 1990 required the land be offered back to the original owners unless it was impractical, unreasonable or unfair to do so or there had been a significant change in the character of the land. After failing to get consent to create a subdivision, Railways entered negotiations with a Maori incorporation owning adjoining land, but did not, as the law required, seek to identify the former owners or make a formal offer back to them.

In 1991 Railways entered a sale and purchase agreement with a local businessman conditional on "offer back" procedures being satisfied. The businessman began construction of a concrete plant on the land. Another local businessman began negotiations for a lease over part of the land. Railways eventually made an application under s436 Maori Affairs Act 1953 to the Maori Land Court for it to determine in whom the land should now be vested. The court in 1993 made an order vesting the land in the original owners but conditional on payment of the market value of $70,000 within 4 months (the court commented in a preliminary determination that, because of the Treaty, Maori owners ought to be given preferential treatment in offer back situations, possibly by deferred payment over a reasonable period of the market price). The former owners objected to the condition and sought an urgent hearing before the Waitangi Tribunal.

The tribunal considered briefly the history of public works legislation in NZ, noting there has been no specific reference to Crown obligations under the Treaty in this legislation. It was also noted with regard to valuation that, for Maori, land has distinctive values.

There was no suggestion made that Maori land should not be used for the public benefit where required. But problems arise where the freehold is taken when something less would suffice. The land was also taken from unwilling sellers. It is inherent in the fiduciary obligation of the Crown under the Treaty that when it uses its discretion to offer back land, it should use it positively, and the full market price should not be required if this would prevent Maori having their ancestral land returned. Comments in the Court of Appeal in NZ Maori Council v A-G [1987] 1 NZLR 664 re fiduciary duty were considered and also comments re compulsory acquisition in Waitangi Tribunal Orakei, Mangonui Sewage, Ngati Rangiteaorere and Mohaka River reports.

Compulsory acquisition of Maori land raises the issue of whether kawanatanga (Article 1) overrides the guarantee of tino rangatiratanga (Article 2). In exercising its discretions to take land and to return it when no longer required, the Crown should be guided by its fiduciary obligations as a Treaty partner. These obligations override normal national and commercial considerations. The obligation in respect of return may be greater than previously because so little land remains in Maori ownership. The Privy Council in NZ Maori Council v A-G Appeal 14/1993 spoke of "especially vigorous action" being required for the protection of vulnerable taonga. Consequently, where a taking is necessary (kawanatanga permits the Crown to seek the use of the land for the public benefit), a more consultative approach to negotiation is required which acknowledges Maori rangatiratanga, and does not extinguish Maori title.

In this case the taking of the land did not involve willing sellers. A Crown submission that the taking by proclamation was a matter of convenience was rejected. Offer back provisions place the onus on the Crown to find the former owners. Railways confused the issue by failing to do this and by agreeing to a sale to a third party. Nga Potiki have had other lands in the area taken for public works. This taking, although small, should be considered in that context. The Crown has exercised its discretion to have other compulsorily acquired land in the area returned at a lower than market price. Offerback procedures need to be streamlined. Costs were high in this case because of inept handling by Railways officials. This was an appropriate situation for the Crown to exercise a discretion and return the land at no cost, without prejudice to other public works takings.

The tribunal recommended:
- That the Crown revest the land, at no cost, in the former owners - That a moratorium be imposed on all dealings with lands compulsorily acquired from Maori and no longer required, until legislation is in place to return these to Maori
- When land is no longer required the Crown should be given discretion to negotiate in each case the return at no cost, or less than market value - Where negotiations fail, the Maori Land Court should decide what compensation should be paid on the basis of a fair return to Maori for the use of the land by the Crown. Where Maori might owe compensation, this would be a charge on the land.

[ed: although concerning a small area, the report has major implications. In effect, it suggests all public works takings of Maori land be treated as if they were leases when an offer back is required. Hundreds of sites may be affected. The tribunal recorded, but presumably did not agree with, suggestions in the Mangonui Sewage and Orakei reports that the Treaty may forbid compulsory acquisition in any situation. In another report released this month (Environmental Information and the Adequacy of Treaty Settlement Procedures - reviewed below) the comment is made that the Crown has not decided whether the Takapourewa (Stephen's Island) claim, involving a public works taking, is valid, and this is stalling negotiations. This report may give some idea of how the tribunal might view the Takapourewa claim if it is called to report on it. A political factor: the report mentions that the Hon Peter Tapsell has actively intervened on several occasions for the Nga Potiki people in efforts to secure the return of this and other compulsorily acquired lands]

Other jurisdictions

The Maori Trustee v Rogross Farms Ltd and Another

CA 175/91. 7 September 1994. Cooke, Casey, Tipping

The Maori Trustee sued a lessee, Rogross, for breach of covenant in returning land at the end of a lease in poor condition. The lower court held that there had been a breach, but that, because the court did not consider that the trustee had suffered any actual loss (the land had been leased again without difficulty), awarded only nominal damages ($10). The rule in the English case of Joyner v Weeks [1891] 2 QB 31 CA was held not to apply in NZ. This would have required the lessee to pay the sum (in this case $19,570) needed to leave the land in the condition anticipated by the covenants.

Held: that the rule of Joyner v Weeks applies in NZ as a prima facie measure of loss unless the lessee can show by "sufficiently cogent evidence" that in both the short and long term the lessor will definitely suffer no loss or a loss that can definitely be assessed at less than the prima facie measure. The evidence in this case did not suggest the prima facie measure should not apply. Accordingly the trustee was entitled to $19,570 damages. Other cases dealing with breach of covenant and assessment of damages which used a different approach (Maori Trustee v Bjerring (1960) 1 NZCPR 565 Maori Trustee v Bolton [1971] 1 NZLR 226 and Maori Trustee v Clark [1984] 1 NZLR 578) were distinguishable either because the lessee was entitled to compensation for improvements (Bolton and Clark) or the covenants were impossible to perform (Bjerring).

[ed: the Court of Appeal noted that this case concerned an issue of considerable importance to those who own and lease farmland. Maori are particularly affected, as the names of the previous cases suggest]

General

Environmental Information and the Adequacy of Treaty Settlement Procedures

Office of the Parliamentary Commissioner for the Environment. September 1994

This report was prepared in response to concerns expressed to the commissioner and through the media that negotiations to settle Treaty claims are failing to address environmental issues. The report examines how far procedures for settling claims ensure that adequate information on environmental matters is available to those involved. The concern of the commissioner is the protection of environmental values, not whether the Crown or Maori can best ensure that the quality of the environment will be maintained.

Procedures for settling Treaty claims are evolving and those involved may not have full information about the environmental implications (in the broadest sense) of settlement options. The report looks at the settlement process in relation to Crown owned lands under the Conservation Act 1987, Reserves Act 1977, Wildlife Act 1953 and Land Act 1948. Useful tables are included showing consultation requirements under these Acts.

The major options of settlements in relation to the environment are; a change in the managers, change of ownership, change of use, or compensation. The report looks at 3 case studies: Takapourewa (Stephen's Island), Tutae Patu lagoon and pastoral lands (Routeburn, Greenstone, Elfin Bay) purchased for settlement of the Ngai Tahu claim.

There is confusion about different parts of the process - particularly the difference between negotiation and consultation and that the public provide information but are not negotiating with Maori. There is also confusion about the different functions of government departments and ministers, and conflicts for ministers between advocacy for their departments and their role as negotiators.

Adequate environmental information (including information about possible social implications) at an early stage would assist negotiations and settlements, for example by allowing for the identification of other affected Maori groups, and the future effect of conditions which might be placed on settlements. The public at large have no general entitlement to be consulted except where provided in statutes, although the potential exists for an argument for involvement because of a "legitimate expectation". It would have to be shown that there was an express or implied undertaking to consult either through Crown statements or because of the status of the group or the existence of a tradition of consultation.

In 2 of the case examples public consultation had come, by accident rather than design, through government requests for input from conservation boards, who had in turn sought public submissions.

In British Columbia an independent Treaty Commission has been established which structures negotiations through distinct stages and ensures at each stage that parties are properly prepared, and have adequate information, including on the government side, through consultation with third parties. The BC government has established a Treaty Negotiation Advisory Committee to advise it including business and environmental groups. Such a commission would be useful in NZ to clarify the roles of parties, and would increase Maori and public confidence in the process (A background report by Caren Wickliffe on settlements in Australia, United States and Canada is in production).

Presently, necessary environmental information is incidental to the process. This is a serious omission. Consultation required by statutes comes too late - after options have been considered. The use of Environmental Enhancement and Protection Procedures is advocated as part of a systematic attempt to assess environmental implications at the inception of a settlement proposal when real choices can still be made, including the choice to do nothing. The Treaty of Waitangi Policy Unit is the appropriate body to ensure this is done, being responsible for the exercise of a discretion with environmental consequences.

[ed: The report is concerned about outcomes for the environment. Issues of Crown versus Maori ownership are secondary to this. As it states, the fundamental problem with information is to enable the confidential processes of negotiation and mediation to take place alongside the public and consultative process of planning without prejudice to one another.

Appendix I is a legal opinion on Crown obligations too consult in negotiations with Maori. It includes useful discussion of what consultation requires, and when there may be a legal obligation on government to consult not only with environmental groups, but also other Maori groups affected by a claim. The suggestion is made that should the "fiscal envelope" policy be adopted the ability for Maori groups not immediately involved in a settlement to question it may be legally extended, since any settlement will have an direct impact on the size of settlements for other groups.

The report also comments that since the Wildlife Act gives absolute protection to wildlife it may override the Treaty (see editorial, MLR Aug 1994)]

Treaty of Waitangi Policy Unit

Press statement 6 September 1994

Cabinet has approved restructuring of the Treaty of Waitangi Policy Unit (TOWPU) into an Office of Treaty Settlements (OTS). The director of OTS will be accountable directly to the Minister in Charge of Treaty Negotiations regarding Treaty policy, negotiations and implementation. OTS will be funded under a separate vote. The Department of Justice will provide support services, with the Secretary of Justice being responsible to the Minister of Justice for the financial management, performance and reporting of the unit. The restructuring will not affect present relationships with Maori groups.

[ed: No date for the change is given, but the process of appointing a director will begin "shortly". The restructuring suggests the OTS will be more independent than TOWPU, which is fully within the Justice Department. However, for the moment the Minister in Charge of Negotiations remains the Justice Minister, the Hon D Graham]

Indigenous Land Corporation and Land Fund Bill 1994

Aboriginal Law Bulletin August 1994

The federal House of Representatives is presently considering the Aboriginal and Torres Strait Islander Commission Amendment (Indigenous Land Corporation and Land Fund) Bill 1994. The bill establishes a corporation with power to buy land for aboriginal groups. Most groups are not able to bring claims based on common law aboriginal title under the Native Title Act 1993, because the Australian High Court has interpreted that doctrine to require that groups must demonstrate a continuous association to have a valid claim. Many aboriginal groups were dispossessed at an early date.

The bill provides that around $100 million will be credited each year to a land fund for the next ten years. For the first 3 years of its existence, the land corporation will have available around $20 million to begin purchasing. After this period it will rely on investments made by the land fund. The corporation is expected to begin work on 1 January 1995.

Meanwhile, the High Court is hearing 2 actions from Western Australian aboriginal groups challenging the validity of that state's native title legislation (which is less generous than the federal legislation), and one action from the Western Australian government challenging the validity of the federal Native Title Act 1993.

Community Safety: Mental Health and Criminal Justice Issues

Law Commission report no 30 August 1994

This report considered, in the light of recent serious offending by 2 former psychiatric patients, whether the Criminal Justice Act 1985 or any other enactment should be amended to confer extra powers of detention. The commission concluded that community safety did not require powers of detention beyond those already in mental health legislation. This conclusion was reached after weighing the community right to be protected against the right not to be arbitrarily detained. One reason for urging "caution" about any change was the concern that broader detention powers may have a greater effect on some sectors of the community, particularly Maori. A submission from Te Puni Kokiri was noted, that more than half of those placed in psychiatric hospitals by the courts under the Criminal Justice Act 1985 are Maori.

Assisted Human Reproduction. Navigating Our Future. Report of the Ministerial Committee on Assisted Reproductive Technologies

July 1994. Bill Atkin, Dr Paparangi Reid

The report deals with all major issues surrounding assisted reproductive technologies (ART). After considering approaches in other countries, the committee adopted as a basic principle the view that all human tissue has mana. Sale of it would therefore be disrespectful. Human tissue is also tapu and sacred. This includes the products of ART such as embryos and gametes. They should be treated with dignity when considering issues surrounding their storage and ownership. One practical implication of this approach is the suggestion that where a Maori gamete provider dies, respect for cultural practices might require the burial of that tissue with the deceased.

Another principle adopted by the committee was consideration of the partnership in the Treaty of Waitangi in the development of ART. It was noted that, for Maori, knowledge of whakapapa is vital and secrecy about genetic origins is antithetical to Maori values and may conflict with Treaty principles.

[ed: a document which puts a distinctive NZ stamp on the ART debate]

Customary Use and Conservation

A debate is currently taking place between the Department of Conservation and Non Government Organisations (NGOs) about wildlife, the meaning of "conservation" and Treaty of Waitangi obligations.The Conservation Act, which came into force in April 1987, was designed to promote the conservation of NZ's natural and historic resources. "Conservation", in the Act, is defined as "the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations." Section 4 requires the department to give effect to the principles of the Treaty of Waitangi. One interpretation is that this requires the Crown to allow iwi continued rights of access to their taonga, including continued customary usage.

Some NGOs are concerned about section 4, believing that it should not allow continued taking of endangered species, particularly birds like the kereru (wood pigeon), toroa (albatross) and titi (mutton bird). They point out that the Conservation Act does not mention sustainable use. It is said that the words "preservation and protection" do not envisage the killing of wildlife. However, the Wildlife Act 1953, also administered by the department, already allows for some native species to be hunted or killed. Protected species may be taken for authorised purposes, including traditional and cultural uses. The harvesting of some bird species on off-shore islands is permitted, for example, by descendants of the tangata whenua of the islands.

This duality is in line with the current international approach. In June 1992 over 150 countries, including NZ, signed the Biological Diversity Convention which was developed under the Auspices of the United Nations Environment Programme (UNEP). Its objectives are the conservation of biological diversity (which includes species and their habitats, and ecosystems) and the sustainable use of these component parts. Particularly relevant to the customary use debate is article 10(c) which requires countries party to the convention to "protect and encourage customary uses of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements." NZ ratified this convention in September 1993.

Internationally, therefore, customary uses - rather than being seen as a threat to a preservationist ideal - are, within an overall scheme of conservation, positively encouraged.

 

Maori Land Court and Appellate Court

Waihi Kahakaharoa 1Z2B2B block

14 Aotea ACMB 38, 1 August 1994. Hingston J, Carter J, Isaac JAn appeal against a decision dismissing a partition application, in part because the court found the land had spiritual and cultural significance to the hapu, being untouched since its original partition.

Held: the appeal should be disallowed. Partitions are to be refused if the court is of the opinion that they are "inexpedient" in the interest of the public, owners or other persons interested in the land (s174/1953). In approaching s174:

- the court should go beyond the strict wording and take an overview of the partition sought;
- partition is not an automatic right for a shareholder, but a discretion of the court;
- the court may adopt an inquisitorial approach taking account of all relevant factors;
- s174 is to be read disjunctively. Inexpediency for one of the 3 groups mentioned is enough to refuse an order;
- inexpediency for one group ipso facto must be inexpedient in the overall interest of all owners.
(See In Re Manawatu-Kukutauaki (1981) 13 Whanganui ACMB 76, In Re Motukawa (1981) 13 Whanganui ACMB 20, Part Kaikoura No 4 1993 Waiariki ACMB 10).

The Appellate Court will intervene only where the lower court has decided upon a wrong principle or taken into account an irrelevant consideration, given the wrong weight to relevant considerations, or if there would be injustice if the Appellate Court did not intervene (Re Tarawera C6 (1982) 9 Takitimu ACMB 286, Re Kairakau 2C5B, Kapiti Farm 10 Takitimu ACMB 64, Part Kaikoura No 4 1992 1 Waiariki Appellate MB 10). None of these grounds had been made out on the appeal.

On an application to introduce further evidence in the appeal, In re Whareongaonga 5 and Skuse [1973] 30 Gisborne ACMB 158 (Tai Whati p167) establishes that evidence can be introduced which 1) could not have been obtained with reasonable diligence at the trial, 2) would have an important influence on the case, 3) was not controversial as to the belief which might be placed in it.

[ed: Te Ture Whenua Maori s288/1993 sets out specific criteria to be considered by the court before approving partitions, including the opinion of the owners as a whole, the effect of the proposal on the interests of the owners, the best overall use and development of the land. Sufficient notice must be given and there must be a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. The court must also be satisfied that the partition is necessary to facilitate the effective operation, development, and utilisation of the land. The Explanatory Note on the Bill as introduced in 1987 (this clause was not significantly amended) stated that the new provisions follow the approach of the Motukawa case]

 

 

Tuaropaki E block

66 Taupo MB 156, 13 July 1994, Hingston JUnder the Geothermal Energy Act 1953 the Crown had in the 1980s entered onto this block and, without granting compensation (none being required by the Act), drilled 5 bores for the investigation of geothermal energy. Application was now made under s18(1)(a)/1993 for a determination of ownership of the bores and associated well-head structures.

Held: the court had jurisdiction to determine the issue under s18 (a re-enactment of s30(1)(a)/1953). Since 1982 an amendment to s30(1)(a)/1953 provided that the court should determine disputes in respect of Maori freehold land irrespective of ethnic origin of the parties. The Geothermal Energy Act and associated regulations had not created a statutory profit a prendre as contended, but instead envisaged that any investigation of geothermal potential would be followed by a decision whether to take the land. No decision had been made to take or vacate after the exploratory work, accordingly the Crown's continued involvement with the wells might be ultra vires or at least a trespass. Section 354(1) RMA (Crown's existing rights to continue) merely preserved rights and did not create them. Common law rules regarding fixtures to land had not been overridden by statute. The bores and well-head structures were fixtures and therefore part of the land and owned by Tuaropaki E block.

The court expressed disquiet at being told not to proceed with this matter as legislation was intended to confirm Crown ownership.

[ed: The Finance (No 2 Bill) Part VI Geothermal Wells Vesting and Empowering is intended to confirm Crown ownership of these wells without compensation to landowners. Submissions have closed on the bill and the Government Administration Select Committee is preparing its report. Several commentators have questioned the constitutional appropriateness of the bill (The Independent 29 July, 19 August 1994). Approximately 120 wells are affected in the geothermal fields at Whakatane, Te Kopia, Waiotapu, Tauhara, Ruahine, Reporoa, Rotokawa, Ngawha, Orakeikorako, Ngatamariki, Mokai, Mangakino, Atiamuri, Horohoro, and Kawerau (2nd Schedule)]

 

Waitangi Tribunal

Sir Graham Latimer and Others re Broadcasting

Wai 176, 22 July 1994The report noted that this claim concerned Crown proposals re broadcasting said to be contrary to the Treaty. Many of the issues had been covered in the tribunal Te Reo Maori (Wai 26) and Radio Frequencies (Wai 150) reports. The issues had also been litigated in the High Court, Court of Appeal and Privy Council. Accordingly unless the claimants indicate otherwise, the tribunal will not make further inquiry into the claim.

 

 

Waitangi Tribunal and Maori Land Court Budgets 1994-5

Replies Supplement 2 August 1994The tribunal budget is $3,408,000 comprised of research ($1,402,000), administration ($743,000), hearing costs and members fees ($962,000), specialist advisory and information services ($301,000). This is an increase of $862,000 over the previous financial year. The Maori Land Court budget is $6,630,00 including $200,000 to cater for s30/1993 hearings (power to determine appropriate representatives of a group for any proceedings or negotiations).

 

Other Jurisdictions

Auckland Casino Ltd v Casino Control Authority & Ors

M81/94, 13 July 1994, Robertson JAn application for judicial review of the decision of the Casino Control Authority to grant a licence to a company (STCL) in preference to other applicants, including Auckland Casino Ltd (ACL), a company half-owned by Aohou Ltd in trust for the Maori Congress and its iwi members, and half-owned by a Hong Kong based subsidiary of a multi-national conglomerate. Held: dismissing the application, that most of the allegations concerned apparent (not actual) bias, and none of these had been made out. Of particular interest: ACL had waived the right to object because they failed to object during the hearing when they had knowledge of matters now put forward as evidence of bias. The argument of ACL that they could not have objected at the hearing without undertaking consultation as required by tikanga Maori was not supported by "one skerrick of material". However the court agreed that because the Treaty partnership is part of the "philosophical and cultural core" of NZ, courts should endeavour to interpret activity so that recognition is given to the Treaty, and might reach a different conclusion in cases where, because of tikanga Maori, a response was not forthcoming from Maori which might otherwise have been expected.

In response to various allegations that apparent bias existed because the authority inappropriately dealt with Maori witnesses and issues, it was found: - the lack of a Maori person on the authority was a statutory matter and not one for court review;
- the Maori Language Act 1987 applied to the proceedings. Section 2 providing that bodies with the powers of a Commission of Inquiry are subject to the Act, and this was a matter "of particular interest to the Maori people" because of Maori involvement in the ACL bid.
- there was however no evidence that any witness "triggered" the Act by seeking to present evidence in Maori requiring translation;
- failure to meet the requirements of the Act might be an error in law rather than evidence of bias;
- the authority had sought to accommodate ACL in the presentation of their case, and any breach of protocol was innocent.

[ed: while many of the grounds in this application do seem to have been, as the court put it, "post hoc rationalisations" by the disappointed applicant, the finding that "there was no occasion on which there was evidence presented in Maori which required translation" followed by the admission that Maori was used "in areas of formal Maori protocol" suggest that the authority may have missed entirely the significance of any Maori greetings. Surely any authority making a determination with significant legal consequences should ensure that it has the means to understand all that is said before it?]

 

 

Panekiri Tribal Trust v Wairoa District Council & Bay Kayaks Ltd

W62/94, 25 July 1994, Kenderdine JThe trust sought to appeal out of time against a consent given to operate a kayaking business on Lake Waikaremoana.

Held: the appellants had failed to comply with any of the requirements of notice of an appeal under s121/1991. As to allegations re lack of consultation, the council had been "exemplary" in its approach. Members of the trust had been at consultation meetings, making this aspect of the proposed appeal almost vexatious. Procedures for issuing notices might seem complicated, but are in the same legislation from which Treaty references were quoted by the trust.

 

 

Whakarewarewa Village Charitable Trust v Rotorua District Council

W61/94, 25 July 1994, Kenderdine J & commissioners J Rowan, F EasdaleAn appeal against the Rotorua District Council for refusing land use consents to the Whakarewarewa Village Charitable Trust for the marketing of tourist items from 9 of 89 lots in the Whakarewarewa village. One million tourists visit the area each year. Houses had been erected on the lots in 1988-89 as part of a scheme to have people seen making crafts in their residences. To provide funding, leases over the lots were mortgaged to the Housing Corporation. The scheme was now in financial strife. It was proposed to sell items directly from the houses. This was said to be the continuation of a commercial tradition from the early days of tourism.

Other families in the village objected that it had not been envisaged that sales would occur from the houses or that monies from retail sales would not be shared. The council considered the proposal under a special residential zone of its existing and proposed plans, allowing for the creation of crafts in houses where this was incidental to residential use, but not sale from houses. Officers of the council fully consulted with the villagers before the application was heard and rejected.

Held: allowing the appeal and the sale of crafts, but with conditions, the tribunal reviewed briefly the traditional history of the geothermal area, the advent of tourism, including the acquisition by the Crown of much of the valley in 1896.

Kaitiakitanga properly required control of the village to be vested in an iwi authority. Since this had not occurred, others (the council) had to assume that role to balance the demands of different groups. Until an iwi authority was formed village development would be subject to an examination of the commercial minutiae of proposals. Noted that kaitiakitanga is broader than a focus purely on economic viability needed to sustain a development. In the long term a formal plan would be needed for managing and preserving the resources of the village.

The Treaty envisaged a share for Maori in the commercial development of the country and a right to develop their own resources. Article II includes the right to use, manage and dispose of property and make profit by common agreement, but not the right to be protected from any commercially perceived risk. Planning law has merely to ensure that commercialism is managed at a sustainable rate, avoiding, remedying or mitigating adverse effects.

Each proposal was considered in detail, the tribunal noting that it could not consider commercial viability, including competition from other like businesses. Nor could it consider the objection that returns would go to individuals rather than the village as a whole. It sought only to mitigate the "adverse commercial effect" on the social fabric of the village which might arise if the craft outlets became merely a series of souvenir shops with little or no input from indigenous craft-makers of the village or elsewhere. Accordingly, retailing was to be limited to traditional craft (with 2 minor exceptions).

Regarding consultation, councils (not applicants) are required to undertake consultation with Maori prior to hearing applications for resource consents, but only through council officers, so that the hearing of consents by council in its quasi-judicial capacity is not compromised. Quarantine Wastes (NZ) Ltd CP 306/93 followed. The Gill decision [1993] 2 NZRMA 604 did not intend to suggest otherwise when it said that the "council" needed to consult prior to hearing a resource consent. This might not necessarily apply to consultation by councils in relation to duties under s32 (duty to consider alternatives etc before adopting objectives, policies, rules etc) prior to notifying a plan change or new plan. As to whether greater weight should be given to existing plans as opposed to proposed plans under the RMA, in cases such as this a "pragmatic approach" should be adopted in view of the significant Maori concepts such as kaitiakitanga and the promotion of Treaty principles in the RMA (JJ Hanton and others v Auckland City Council A10/94, 1, 33-34 followed).

Regarding the ability of a local authority to transfer functions (including the hearing and granting of resource consents) to an iwi authority (s33/1991): here the council, having made a decision on the resource consent application, had no residual ability to refer the matter to an iwi authority. Section 290(1) (Planning Tribunal on appeal to have the same powers and discretions as the original decider), might allow referral of a matter to an iwi authority under s33. But earlier decisions have shown that the tribunal will only grant the relief expressly sought or contemplated by appellants, and the appellants here did not contemplate in their appeal the implementation of an iwi management plan. The tribunal might not decide of its own accord to initiate an iwi development plan, as this did not generally fall within its function as an appellate authority. A fresh application would be required.

The tribunal noted with concern, but could not itself consider, the possibility that, as financial arrangements now stood, leases of the lots might be forfeited to occupiers with no traditional ties with the village. This would "seriously erode" the cultural character of the village.

[ed: this decision shows that if provisions under the RMA for iwi management plans are not taken advantage of, iwi can find planning authorities and the tribunal controlling the minutiae of their lives. One decision of the tribunal in this case was that a particular lot could sell walking sticks of wood, but not plastic! Not surprisingly, the tribunal thought this a prime case for iwi to plan and manage their own affairs within the district plan. In the meantime, they face the ignominy of the local authority performing the role of kaitiaki for their village. The comments clarifying consultation requirements will be welcomed by councils]

 

 

Tauranga District Council v Toa Haere Faulkner & Another

Plt No 1110/93, 15 August 1994, IB Thomas JA claim for payment of rates in respect of Maori freehold property. The defendant replied that the land remained customary land under Te Ture Whenua Maori 1993 (whose definition differs from that under the 1953 Act); alternatively that, historically, the Maori Land Court with regard to this block had merely passed on by its succession orders an unextinguished customary title.

Held: that these defences were estopped by an earlier decision of the MLC assuming this block was Maori freehold land. The 1953 definition was in force when the rating orders were sought. The MLC had dealt with the land as Maori freehold land since 1921.

 

General

Discussion Material on Allocation Models for Consultation with Iwi

Te Ohu Kai Moana - Treaty of Waitangi Fisheries Commission, August 1994Sets out 3 models for allocation to iwi of pre-settlement fisheries assets, including over 57,000 tonnes of quota. The models are 1) Manamoana (proportion of the Total Allowable Catch occurring off-shore from landward boundaries of each iwi at 1840), Population, Progressive Allocation (staged allocation using the manamoana approach). The model finally chosen must be consistent with tikanga Maori, with legislation, meet social and economic needs, be financially viable, technically feasible and politically sustainable. After consultation, Te Ohu Kaimoana will, later in the year, recommend a model (with or without unanimous iwi support) to the Government, which will have 30 days to respond with any changes.

Each model incorporates a common process for registration of iwi and resolving disputes among iwi about their respective allocations. The manamoana and progressive allocation models would use 1840 as the date when an iwi coastline is determined, but the commission recognises that "some flexibility" might be required in its application.

[ed: the preferred model of Te Ohu Kai Moana is manamoana. For each model, except the population model, the origin of the model in the Treaty and Waitangi Tribunal reports is discussed. This is significant since the first criteria for selection of a model is its accord with "tikanga Maori". The procedures for registering iwi revive elements of the repealed Runanga Iwi Act. The dispute resolution process, when applied to the manamoana model, might see the commission acting in some respects as the land court did last century, applying an '1840 rule'.]

 

 

Notification of Proposals to Establish Taiapure-Local Fisheries

NZ Gazette, 4 August 1994Three Taiapure-Local fishery proposals have been notified as agreed in principle by the Minister of Fisheries. Objections are to be lodged by 4 October 1994. The proposed fisheries are:
- Nga Taonga o Ngati Kere (near Cape Turnagain)
- Waikare Inlet, Waikino and Manawaora Creeks
- Maketu and Waihi Estuaries, and a coastal strip from Wairakei to Otamarakau.

 

 

Keynote Address to Hui Whakapumau - Maori Development Conference

Chief Judge ET Durie, 10 August 1994In this hard hitting speech commenting on the decade of Maori development since the Maori Economic Development Summit of 1984, the Chief Judge noted that, on the basis of human rights and Treaty jurisprudence, a compelling case exists for an independent and adequately funded Maori agency to formulate Maori policy and development proposals. A proposal in 1985 that a largely independent Maori body replace the then Department of Maori Affairs was rejected by Cabinet. This compared unfavourably with the Aboriginal and Torres Strait Islander Commission created around the same time with extensive aboriginal representation and with Canadian efforts at tribal self government. Consequently, Maori now face a proliferation of competing organisations in districts, rivalry between districts and the unilateral development of a claims resolution policy by government with no significant Maori input. Lack of funding for solutions generated by Maori reflects disturbing elements of the colonial era. Lack of an independent body answerable to Maori means current Ministry of Maori Development policy is state policy, no matter how benign. Consultation by the state is insufficient in that it elicits a response but denies Maori initiative. Important positions in Maori policy formation, including positions in the Maori Land Court and Waitangi Tribunal, are filled by state nominees according to criteria the State judges to be important.

 

 

Maori and the Law in the Light of the Life, Works and Legacy of Sir Apirana Ngata

Chief Judge ET Durie. Opening address on the centenary of the graduation of Sir Apirana Ngata, University of Canterbury, 24 June 1994.Ngata's achievements as a lawmaker stemmed from the view that the true art of law is not the maintenance of prescriptive rules but the delivery of substantive justice. There is a need for Maori lawyers to develop skills in statutory drafting, parliamentary mechanics and lobbying to provide the technical expertise to Maori politicians to promote and advance legislation under the MMP system.

Maori jurisprudence needs development. Ngata argued in 1937 against a proposal to vest all petroleum in the Crown, contending that whether Maori knew about oil in 1840 was irrelevant. There is no sound basis in law that rights of indigenous people must be locked into such as existed at the time of colonisation, although this approach appears to have been followed in Tainui Maori Trust Board [1989] 2 NZLR 513, 527 (Maori knew about coal) and Te Runanga o Te Ikawhenua v A-G CA 124/93 17 December 1993 (Maori did not know about electricity generation). Ikawhenua claimants might have been better to have used Ngata's line, that if they owned the river, they had the right to any development of it. What is required from Maori lawyers today is not an interpretation of the law but "a vision of how it should be developed".

 

Assessing Performance

Tau Henare (MP for Northern Maori) has asked each government minister: "In each year since the Act became law, what information, if any, has [the relevant department] provided on request to the Ministry of Maori Development to assist in its statutory monitoring role under section 5(1)(b) of the Ministry of Maori Development Act 1991?" (Replies Supplement 12 July 1994). Section 5(1)(b) provides that the Ministry is responsible for "Monitoring, and liaising with, each department and agency that provides or has a responsibility to provide services to or for Maori for the purpose of ensuring the adequacy of those services." The Act gives no other guidelines on this function. Nor is it spelt out what must occur if services are found to be inadequate.

Responses from most departments referred to ongoing liaison and consultation on a number of issues. For some departments, no formal request for information had been received, although liaison was occurring. No department provided information about the particular measures it was using to determine whether its services to Maori were adequate, or how it was performing against those measures. Undoubtedly, this was in part because answers had necessarily to be brief. However, this also reflects the vagueness of the 1991 Act.

The Hon Tirikatene-Sullivan (MP for Southern Maori) has asked each of the government ministers "Is the Treaty of Waitangi referred to in the mission statement of any department or ministry under the minister's jurisdiction; if so, how is this reflected in the recent Budget?" (Replies Supplement 19 July 1994). The Budget appears to have contained little directed specifically towards Maori. The answers to this question are not yet in, but promise to make interesting reading.

The government in the coming weeks will, under the new Fiscal Responsibility Act 1994, be called to answer difficult and quite specific questions about its financial performance. Judging from the questions of the Maori MPs, in assessing government performance on Maori issues, perhaps a Treaty Responsibility Act would be helpful.

Maori Land Court and Appellate Court

In re Orokawa 3B Block and Dovey Erena Regeling

Appeal 1994/7, 4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal from a decision setting aside land as a reserve under s338/1993 (old s439/1953). In the course of disposing of an application under s173/1953 concerning the vesting of certain land in beneficial owners, the court directed the applicant (the Maori Trustee) to convene a meeting of all beneficial owners to consider placing residue land in a reservation. The court subsequently, without further application, reopened the matter and ordered the residue land be reserved under s338/1993.

Held: allowing the appeal, there was no application for reservation before the court, and it therefore lacked jurisdiction to make the s338 order. Section 37(1)/1993 provides that jurisdiction may be exercised only on the application of any person having an interest in a matter, the Minister, Chief executive, or a registrar of the court. The only situation in which the court can make orders on a matter about which there has been no application is in the course of hearing an original application on a matter, and the need for additional orders arises (s37(3)/1993). In this case, the original application had been disposed of when the court reopened the matter.

It was also noted that the appellant had advanced this ground of appeal at the hearing. It had not been stated in the notice of appeal. Although the Maori Land Court Rules forbid such a proceeding, the court would permit the new ground to be advanced. As a "titles Court", the MLC has a responsibility to remedy `patent deficiencies' in lower court proceedings (In Re Ngapuna 4 v H Allen Mills and Son Ltd[1972] 5 Waiariki ACMB 332 and In Re Maungatatari 5B1A v Baillie [1976] 15 Waikato Maniapoto ACMB 188 applied).

In Re Matiu Rata and Committee of Management for Muriwhenua Incorporation

Appeal 1994/8, 22 June 1994, Deputy CJ Smith, Hingston, Carter

In 1991, at the instruction of the court, the registrar filed an application under s61/1967 to investigate the incorporation after it had failed to file audited accounts. A long sequence of hearings followed. An examiners report was filed and considered. There were several adjournments as the court sought to have up to date accounts presented, culminating in a hearing in December 1993 at which the court made an order under s61(6)/1967 appointing 7 new members to the committee of management, impliedly replacing the existing members. It then dismissed the s61 application since further investigation was unnecessary. It was argued that the court lacked jurisdiction to make the order replacing committee members, and made it in breach of natural justice in not giving notice to existing members.

Held: the court undoubtedly had power to direct the registrar to file an application and to order an inquiry under s61/1967 given the failure to file audited accounts up to 1991. However, a fresh application, and fresh notice, would have been required to investigate the late filing of accounts after 1991. Consequently, directions relating to the filing of later accounts moved beyond investigation and towards a monitoring of the continuing activities of the incorporation. There was no jurisdiction under s61 to do this.

The orders flowing from this wrongful exercise of jurisdiction were therefore flawed. The order replacing committee members also failed because no notice was given as required under s61(5) and by principles of natural justice.

The failure to file accounts nevertheless established a prima facie case for removal of some or all of the committee. This issue was therefore referred back to the lower court to consider action not only under s61(5) but also s61(6) which gives wide powers to remedy any deficiencies or problems experienced by an incorporation.

Finally, the order dismissing further proceedings under s61 after appointing new committee members was a nullity, as the court disposed of all matters under the s61 application on the making of the appointments.

In Re Ongarahu B and Eriapa Maru Uruamo

4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal against an order appointing trustees to replace existing trustees. It was argued that inadequate notice was given and the court lacked jurisdiction to make the orders.

Held: allowing the appeal, that the notice of meeting did not specify what the meeting would be about. That many people might have been aware of the subject of the meeting was not sufficient. Presumed notice is not adequate notice (Jennings v Scott (1984) High Court Rotorua A1 83/79 applied). In addition, there is no jurisdiction to remove trustees under s338(7)/1993, but only power to vest land in trustees and appoint new or additional trustees. Trustees may only be removed under s240/1993, which requires prior notice to be given to those trustees affected.

[ed: as to the power to remove trustees under s240/1993, see In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust 53 Tauranga MB 132, 12 April 1994, Carter J, reviewed in MLR June 1994 p2]

New Maori Land Court Judge

Minister of Maori Affairs press release 20 July 1994

Patrick John Savage, a Rotorua solicitor, has been appointed a Judge of the Maori Land Court. He will sit on the Rotorua court serving the Waiariki District. He is of Ngati Porou descent through Te Whanau-a-Ruataupiri and is married with 3 children. At the time of his appointment he was a partner in the Rotorua firm Davys Burton.

Te Ture Whenua Maori Amendment Act 1994

This Act was assented to on 1 July 1994 and amends the law relating to:
- cross leases of Maori freehold land
- payments of proceeds of alienation of Maori freehold land

- termination of agency by the court
- acquisition of land by incorporations for investment purposes
- amendments to constitutions of incorporations by special resolution, including adjustment of share capital
- minor drafting errors in the principal Act.

It is substantially the same as the bill reported at MLR April 1994 p4 apart from minor changes in wording.

Waitangi Tribunal

Whanganui River claim

Wai 167, D18, 27 July 1994, counsel for claimants

In closing submissions, remedies sought by the claimants were outlined. The major recommendations sought being that the Crown reject the application for a water conservation order for the river and recognise the Whanganui River as having legal personality, as the tupuna awa of the Whanganui iwi (reference made to English cases concerning Hindu religious institutions recognised as 'juristic entities', Mullick (1925) 52 LR Indian Appeals 245, Bumper [1991] 4 All ER 638). Under such a regime, the iwi would manage and control use of the river for the benefit of the river, the Whanganui iwi and the wider community in accordance with the Treaty of Waitangi. From December 1998 or an earlier agreed date, Whanganui iwi would be given sole right to make laws for management and control of the river (including repeal of s354 RMA saving Crown rights to the river bed under the Coal Mines Act/Mining Act). Existing rights would continue until that date. The claimants also seek, if required, Crown assistance to enable the rehearing of the 1962 Court of Appeal decision dismissing a claim to legal title to the bed of the Whanganui River (the Court of Appeal in Te Runanga o Te Ika Whenua v A-G [1994] 2 NZLR 20, 26-27 made obiter comments that the approach in the 1962 case may have been limited, since the aboriginal title doctrine was not raised). Crown counsel argued that the claim in its current form is a recent development, and that, in the past, interests in the river have been alienated as riparian lands were sold. The ad medium filum rule applies and accords to an extent with Maori custom regarding interests in rivers.

[ed: hearings in this claim have now been completed and the tribunal report is expected later this year]

Other Jurisdictions

Waitutu Inc v Southland District Council and Minister of Conservation

C68/94, 15 July 1994, Skelton J & commissioners NJ Johnson, R Grigg

The Maori incorporation, Proprietors of Waitutu, appealed against the refusal of the district council to issue certificates of compliance enabling the incorporation to fell indigenous timber on the 2145 hectare Waitutu block. The block had originally been set aside for Maori under the South Island Landless Natives Act 1906.

The incorporation made two applications for certificates of compliance under s139 RMA. It first sought approval for the logging of trees on the block for commercial sale, then for the clearing of trees to permit grazing by deer. In each case the council would not approve the tree felling aspect of the proposals.

Held: as to the first approval sought, if the clearance of existing trees and planting of a production forest could be seen as one linked and continuous activity, then a certificate might issue under the existing district plan, but clearing the existing indigenous forest was a significant activity in its own right, and not permitted by the plan. As to the approval sought to permit clearance for grazing, similarly, the clearance of trees constituted a significant activity in its own right and was not merely incidental to the preparation of the land for grazing.

Regarding Part II s8 and the principles of the Treaty of Waitangi; if this were an application for a resource consent Part II would be relevant. It is doubtful whether Part II has to be considered when simply interpreting the provisions of a district plan, even though the purpose is to grant a certificate of compliance which is deemed to be a resource consent. Accordingly, evidence about the history of the land and its setting aside for landless Maori did not assist in determining the appeals.

In any case, the felling of this indigenous forest might well fail to achieve "sustainable management" as set out in s5 RMA (managing in a sustainable way while avoiding, remedying or mitigating adverse effects).

It was noted that the Crown, which owns the former Waitutu State Forest adjacent to the Waitutu block, and may add the former state forest land to the Fiordland National Park, had an interest in seeing that the forest on the Waitutu block remains untouched, but has no present intention to acquire it. On the basis of these interests in the adjacent land, the Department of Conservation was permitted to be heard (it had an interest greater than the general public - s274). Although the Department had been late by several days in filing notices of intention to be heard, this requirement was waived (there was no prejudice to other parties, the delay was small - s281).

[ed: The district plan was prepared under the Town and Country Planning Act 1977 which did not contain significant references to Maori values and the Treaty of Waitangi as does the RMA. Consequently, Maori values could not have been extensively taken into account in the preparation of that plan. This decision therefore potentially affects all areas where old district plans remain and have not been reviewed or replaced.

George McMillan has been appointed by the Crown to negotiate with the incorporation over protection of the forest. No deadline has been set for those negotiations (Replies Supplement 12 July 1994 p80).]

Simon Luxton & Ors v Bay of Plenty Regional Council & J Wirepa

A49/94, 14 June 1994, Sheppard J, commissioners IG McIntyre, F Easdale

Mr Wirepa applied to the regional council for consents to establish a paua farm. He consulted with, and obtained letters of support from, local Maori groups. Consents were issued by the council. Appeals against the consents were lodged by Maori persons in the district. These appeals were sent directly to the Registrar of the Planning Tribunal and were not notified to Mr Wirepa or the regional council. Mr Wirepa applied to have the appeals struck out.

Held: the appeals should be struck out. The RMA only allows the time for service to be waived when service has occurred late, not when it has not occurred at all. In any event, the RMA would not allow service to be given now because Mr Wirepa had spent considerable sums on the understanding that there were no appeals and would therefore be prejudicially affected (s281).

It was accepted that the appellants failure to serve their appeal was a result of "muddlement". They lived in a remote locality, but could have obtained advice by telephone. The Registrar had written to the appellants advising them of the need to serve their appeals, but had received no response.

The appellants were concerned about whether Mr Wirepa had backing from the appropriate tribal authorities, his claimed interests along with his whanau as tangata whenua, possible control of the paua farm by "undesirable elements" and the omission to consult "outside a formal confrontational situation". These were not matters the tribunal could consider. The tribunal would "avoid, if possible, making any findings about the status of a particular tribal authority, or about the scope of a whanau's rights as tangata whenua, or about which hapu might have traditional or customary interests in a particular area. Questions of "undesirable elements" could also not be considered. "It is the law that any person is entitled to apply for resource consents. .... an appeal against a grant of resource consent has to be decided on whether the proposal will promote the sustainable management of natural and physical resources, not on whether it might involve Maori failing to observe customary areas of interest of a particular whanau, hapu or iwi."

Regarding costs, it was noted that most of the proposed appellants were unemployed. However, this was not the tribunal's concern, and Mr Wirepa had incurred legal expenses in answering the appeals. The appellants should therefore make a contribution to costs. [ed: the "muddlement" and unexpected costs in this case might have been avoided had an iwi management plan existed in the region. Such plans must be taken into account by territorial authorities (see s61(2)(a)(ii), s66(2)(b)(ii) and s74(2)(b)(ii)). They also provide at an early stage the wider consultation the appellants thought was needed in this case. Procedures for the service of notices are strict under the RMA because of the legal and financial implications of appeals. These procedures may not be helpful to those living in remote localities without money or legal advice (who may often be Maori). Perhaps an amendment is needed requiring that all reasonable assistance be given by persons such as the Registrar on receiving appeal notices (in this case by passing a copy of the notice on to the regional council and asking them to further advise the objectors of the need to formally serve their objection on the council and Mr Wirepa). The Official Information Act contains a requirement for reasonable assistance to be given. The general procedure of the Waitangi Tribunal and the Maori Land Court is to give all reasonable assistance.]

Ngati Kahu Trust Board v Northland Regional Council & Lewis Lands Ltd

A48/94, 23 June 1994, Sheppard J

Lewis Lands applied for 2 resource consents for the taking and discharge of water for a camp ground. The board lodged a submission objecting to the applications, but withdrawn that submission after receiving written assurances about the location of the wastewater discharge, and restrictions on access by campers to sensitive sand dune and coastal areas (waahi tapu and rare species were present). The regional council accordingly issued the resource consents without a hearing. The consents included the board's condition about the location of the discharge. The board became concerned that the assurances about access by campers were not being upheld, and lodged an appeal to the tribunal against the regional council decision to issue the consents, asking that the tribunal make it a condition of the consents that access be restricted to the sand dune and coastal areas.

Held: the appeal should be dismissed. The consents given by the council related to water use and not access. Consequently, the tribunal could only look to the part of the agreement between the board and Lewis Lands which related to water use. The board withdrew its objection on the basis of an assurance about the location of the wastewater discharge. It thereby lost standing to appeal against the consents. Submitters should not in any event be able to cancel their withdrawal once the period for submissions has closed and a resource consent has been issued (the tribunal on appeal would be put in the situation of conducting a primary hearing).

A separate letter to the council from the board, stating that it did not wish to be heard, but reserving the right to appeal any decision of the council, was ineffective. The agreement with Lewis Lands contained no such reservation or qualification.

The intended appeal was also 'vexatious' because it would require the council and Lewis Lands to answer water discharge issues that had already been settled, and there would be no practical result from the hearing.

The fact that the board was currently the subject of a winding-up order did not preclude it from continuing proceedings under the RMA.

General

Reserves under negotiation

Replies Supplement 19 July 1994

The Minister in Charge of Treaty negotiations advised the following as current proposals to transfer ownership of reserves to Maori as part resolution of Treaty claims: Woodend lagoon/Tutaepatu Wildlife Management Reserve, Waikuku Beach/Karikari Recreation Reserve, and Crown Titi Islands in Ngai Tahu. Oke Bay (Hauai) Scenic Reserve in a northern Maori group (see Reserve and Other Lands Disposal Bill No 2). There is a proposal for joint management of Codfish Island/Whenua Hou Nature Reserve between the Crown and Ngai Tahu. These and any future proposals (others are under discussion) have been and will be subject to a process of public consultation determined on a case by case basis.

Australian Native Title Tribunal

Aboriginal Law Bulletin June 1994

As at 30 May 1994 the National Native Title Tribunal had received 21 applications for determination of native title. Seventeen had been "accepted" - that is, they were of sufficient particularity and prima facie value to be considered by the tribunal. Four remain "under assessment".

Maori Science and Law

In a recent paper, "Maori Science. Can Traditional Maori Knowledge be Considered Scientific" (NZ Science Monthly, May 1994, Mike Dickison), and at a recent lecture in Wellington organised by the Skeptics Society, it was argued that Maori did not 'do science' because "Maori knowledge acquisition was neither objective (relying as it did on religious faith), rational (it mixed supernatural with mundane explanations), nor co-operative (it relied on authority rather than challenge and consensus)." Science is about questioning the mechanisms behind the workings of the world. Simply having knowledge and applying it to create technology is not enough.

This sort of argument seems to make as much sense as a Maori chief observing an atom bomb test and remarking, "but this is merely technology". Perhaps the missionary Richard Taylor had something like this in mind when he said, on observing eel weirs on the Whanganui river, that these constructions were too ingenious to have been made by Maori! As for reliance on religion, many important scientific discoveries were made by devout European Christians (I was always taught that a monk discovered the basic principles of genetics).

In 1967 the English born African academic Robin Horton suggested another approach ("African Traditional Thought and Western Science" Africa v37 p50). By concentrating on the similarities rather than the differences between Western and African thought, he concluded that "like atoms, molecules, and waves, ... the [African] gods serve to introduce unity into diversity, simplicity into complexity, order into disorder, regularity into anomaly". The essential difference between African thought and Western science was not a Western monopoly on the ability to rationalise or inquire, but rather a tendency towards 'depersonification' of the thinking process. Literacy had a large part to play in this movement. Horton believed that once this point was grasped, seemingly irrational traditional thinking and action became comprehensible to the Western mind. His argument, despite revisions, is still widely respected today (see Times Literary Supplement 2 July 1993).

Horton's analysis has an obvious application to law. Any tendency to view Maori traditional law and ideas as essentially "irrational", "spiritual" and "other", prevents a proper appreciation of their jurisprudential value.

Maori Land Court and Appellate Court

In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust

53 Tauranga MB 132, 12 April 1994, Carter J

An application for the Court to exercise its jurisdiction under s240(a) to remove a trustee for failing to carry out his duties satisfactorily.

Held: s240 provides wider grounds for removal than the 1953 Act, adding the ground of failure to carry out duties satisfactorily (the 1953 Act referred to powers under the Trustee Act 1953 allowing removal for particular matters only). Natural justice principles apply and the trustee must have full notice of any allegations made.

If the Court determines to remove a trustee under s240 it can proceed under s239 (addition, reduction and replacement of trustees) and make a consequential order reducing the number of trustees.

The test of satisfactory performance need not be solely objective. The Court can consider the nature of the trust, its performance, and views and expectations of the owners. Section 17(1) directs the Court to have regard to the primary objectives of retention of land in the hands of the owners and the effective use, management and development of the land. If the owners believe that discord between trustees is hindering the work of the trust, the Court may have regard to those views. Where trustees are "fighting" the primary objective of administering land is sometimes diminished.

This factor and lack of attendance at meetings, general argumentativeness and difficulty working with other trustees gave grounds for removal for unsatisfactory performance in this case. In this case the discretion would not be exercised because of the failure to accord natural justice in the allegations made by the trust against the trustee, and because of the failure to follow trust provisions in dealings with the trustee and in coming to the resolution to remove him (a decision not to send notice of meetings to the trustee was a course "fraught with danger").

Noted that a trustee cannot be criticised for exercising the right to seek directions from the Court on any matter. Section 17(1) seems to provide room for the Court to remove a trustee who cannot "work reasonably" with fellow trustees, although holding merely different or opposing views would not be sufficient grounds.

Waitangi Tribunal

The Whanganui River claim. Opening Submissions of Counsel for the Crown

Wai 167, 20 June 1994

At the hearing in June, Crown counsel made the following submissions. Negotiations in this claim are paused because the Crown is developing an approach to negotiations with respect to natural resources policy generally. The claimants frustration at this approach is acknowledged. The Crown has title to the beds of navigable rivers, including the Whanganui river, by virtue of the Coal Mines Act 1979, its predecessors, and s354 Resource Management Act 1991. The sale of riparian lands implied a relinquishment of any property rights located in the adjacent river. There is no evidence of an expectation that exclusive rights would persist after sale. The ad medium filum principle is acceptable in Treaty terms as "giving a formal legal expression to property interests associated with land." In this sense, the principle is consistent with Maori perspectives. While the process of the application of the principle may give rise to a breach of Treaty principles, the principle itself does not.

The spiritual relationship with the river has not been communicated to the Crown until relatively recently. It would be inappropriate to convert this to a property right.

The Native Land Court in the Chatham Islands

Bryan D Gilling, Wai 64 document A10

A 113 page report detailing Native Land Court operations in the Chatham Islands in the last century including the application of the 1840 rule.

Other Jurisdictions

M Sadd and Te Runanga A Rangitane ki Wairau Inc v The Waitangi Tribunal and others

CP 322/93, Wellington, 13 May 1994, Greig J

An application by the third defendant (Ngai Tahu Maori Trust Board) to dismiss proceedings brought by the plaintiffs seeking judicial review of the Waitangi Tribunal and Maori Appellate Court for their handling of a case stated to the Maori Appellate Court on the question of tribal boundaries in the South Island (the decision on the case stated was appealed unsuccessfully to the Privy Council).

Held: that the proceedings should be dismissed. The allegation that the plaintiffs were not consulted over the form of the case stated drawn up by the Waitangi Tribunal was contrary to the facts, but, in any event, the Tribunal had the right under s6A(3) Treaty of Waitangi Act 1975 to settle the terms of the case stated. Allegations that the Maori Appellate Court failed to proceed in accord with Maori custom could not be upheld, that Court having discretion to order its own procedures and with knowledge of the relevant customs to be adopted. As to the allegation that the MAC had accepted the "1840 rule" as binding, the rule appears to be a "well accepted principle" arising from the need for the Court to fix a date from which raupatu or "conquest" and inter-tribal warfare, being contrary to public safety and repugnant to English law, could no longer be condoned. In any event, the 1840 rule was not decisive to the MAC decision, which referred to peaceful reoccupation of land in that case.

Southern Scallop Fishery Quota Holders v Tasman District Council and another

W24/94, 15 June 1994, Judge Treadwell

In this appeal, local iwi gave evidence in support of an application for a shellfish farm, stressing their involvement with the applicant company and the Maori historical association with fisheries in the area. This evidence was rejected by the Tribunal. The Maori interest in this case was a commercial interest, and consequently something which could not be considered because of the provisions of the "Treaty of Waitangi Fisheries Settlement Act 1993".

[ed: presumably the reference is to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Section 9(b) provides that, in view of the fisheries settlement with Maori, no court or tribunal has jurisdiction to inquire into the validity of claims or the rights or interests of Maori in commercial fisheries. "Claims" refers to rights under common law, the Waitangi Tribunal, statute, "or otherwise" (s9(a)(i)). This decision appears to be a very broad reading of that section and the effect of the 1992 Act. The section is very broadly drafted. The alternative view would be that the 1992 Act was never intended to have such a drastic effect on the RMA, and that it relates only to legal claims to the ownership or control of the commercial fishing resource.]

General

Maori Purposes (Wi Pere Trust) Act 1994

9 June 1994

Retrospectively amends the Maori Purposes Act 1991 to enable trustees of the Wi Pere trust to exercise powers under Part II of the Trustee Act 1956.

Closing dates for submissions on bills

Te Runanga o Ngai Tahu Bill: extended to 3 September 1993. Queen's Chain Protection Bill: 16 February 1994.

Parliamentary Commissioner Report on Treaty Negotiations

Replies Supplement 7 June 1994 p84

Sandra Lee: "What procedure, if any, does [the Minister] propose to apply to consider the report currently being prepared by the Parliamentary Commission [sic] for the Environment on consultation in relation to the Waitangi Treaty negotiations and settlements?"
Hon D Graham (Minister in Charge of Treaty of Waitangi Negotiations): "I will read it and then call for officials to prepare a report for the Cabinet Committee on Treaty of Waitangi issues."

[ed: the report is being prepared on the initiative of the Parliamentary Commissioner. It is expected to be available before the end of July.]

Public consultation

Replies Supplement 28 June 1994 p31

Hon D Graham: "Because of the variety of issues that ... a claim may raise, there is no standard public consultative process. As a general rule, negotiations are held in camera ... Third parties affected by a proposed settlement are then consulted as appropriate. .... Government is presently considering a number of generic policy issues on the settlement of Treaty claims and in the course of that consideration will address the appropriate extent of public consultation required on those policies."

Natural Resources

Replies Supplement 14 June 1994 p15

Hon K T Wetere: "Has [the Minister] received the reports reviewing the effect of Maori land claims on natural resources; if so, what do those reports say?"
Hon John Luxton (Minister of Maori Affairs): "In my capacity as Minister of Maori Affairs, I have no knowledge of any report which specifically reviews the effect of Maori land claims on natural resources. Perhaps the honourable member will elaborate ... in order that I can satisfy his request."

[ed: this question would appear to refer to the resource policy which is under development and which was noted in Crown submissions to the Waitangi Tribunal hearing the Whanganui river claim (see above).]

Government Position Regarding the Conservation Estate

Ministers of Conservation and Treaty Negotiations, 24 June 1994

This Cabinet paper sets out the government position on the settlement of claims affecting conservation land. The "conservation estate" is "held by the Crown on behalf of all New Zealanders" and is not "readily available" for the settlement of claims. "Discrete sites" (but including river and lakebeds and mountains where special significance is demonstrated) could be considered for settlements. Before any conservation lands are considered, government must be satisfied that a settlement will not affect the strength of existing legal mechanisms protecting:
- conservation values;
- public access;
- the rights of existing concessionaires.

Three possible legal regimes are outlined:
- vesting in Maori, in "rare cases", possibly with legislative encumbrances;
- vesting in Maori, subject to conditions, and the return of title on non-compliance;
- continued Crown ownership, with a significant Maori management role.

[ed: Maori groups probably already know that conservation land (or any land) is not "readily available" for settlements. They may be disappointed with this apparent closing off of options without consultation. Conversely, conservation groups will not be reassured by the general language used. One commentator has already claimed that the policy broadens the grounds for using conservation lands in settlements (Evening Post 29 June 1994 p20). The lack of definition is a difficulty. What is the "conservation estate" and what are the values which that phrase embodies?]

Ngai Tahu settlement

Replies Supplement 28 June 1994 p31

John Blincoe: "What further processes will be carried out before the Government makes a decision on the future tenure of the Greenstone, Elfin, and Routeburn Stations; will such processes include public consultation?"
Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "The decision on further processes ... is ultimately one for the Minister of Lands to make. The ... Minister of Lands and Minister of Conservation [Hon Denis Marshall] will, however, consult with me before making his decision. ... the Department of Conservation is currently completing an assessment of the conservation and recreation values of the properties to ensure that such values are sufficiently safeguarded in an possible settlement with Ngai Tahu ..."

Claims to National Parks

Replies Supplement 28 June 1994 p31

Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "... there are no claims which specifically relate to National Parks. Most claims are general in nature [with] no indication of whether or not a National Park is being claimed until the matter comes to formal hearing ... As an example, the Taranaki Raupatu claim refers to all land confiscated under the Native Settlements Act [ed: NZ Settlements Act 1863] which would include the Mount Egmont National Park. ... until final submissions are made, it is not known whether the park itself will be subject to claim. A similar situation exists with the Urewera National Park and the Tuhoe claim ...".

Policy on approvals for customary taking

Replies Supplement 7 June 1994 p40

Graham Kelly: "Why did the Ministry of Agriculture and Fisheries refer a Samoan church group to a local kaumatua for a permit to harvest seafood for a feast?"
Hon Doug Kidd (Minister of Fisheries): "In keeping with the intent of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 my ministry sets the uses for which fish may be taken. It has no part now, nor has it had in the past, in giving out individual approvals for Maori customary harvest. That role has been provided in regulation to Maori since 1986. There are differing views in Maoridom as to whether customary uses includes not only the right to take fish in a traditional manner, but also the right to approve other groups who may harvest fish in a customary way.
The issue will be clarified and defined in the customary fisheries regulations that will arise from the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
In this case the kaumatua concerned considered that he was allowed by custom to approve people other than Maori to harvest under his authority. His right both to grant a permit in the area concerned and to grant it to a non-Maori group has been challenged."

Annual access fee

Replies Supplement 21 June 1994 p13

In answer to questions from Pete Hodgson MP, the Ministers for the Environment, Maori Affairs, Finance, Conservation, Fisheries and State Services confirmed that the advice from officials in each of their departments had been in favour of an annual access fee for fishing quota.

[ed: the government dropped the idea of a fee mainly because of concern about the legal impact on the Sealord settlement. The Treaty of Waitangi Fisheries Commission opposed the fees (Tangaroa no 19 June 1994)]

Resignation of chairperson

Replies Supplement 28 June 1994 p19

Hon Maurice Williamson (Minister of Broadcasting): "Mr Brown advised me that his reasons for resigning ... were that he felt that Te Mangai Paho should be given a policy advice role and should operate with a greater level of autonomy. The relevant section of the Broadcasting Act defines Te Mangai Paho's sole function as being to 'promote Maori language and Maori culture by making funds available, on such terms and conditions as [Te Mangai Paho] thinks fit, for broadcasting and the production of programmes to be broadcast.'"

The Minister continued that the Ministry of Commerce is to report by the 30 November 1994 on the new Maori broadcasting policies. This review is to provide Maori broadcasters and others with an opportunity to express their views on the policies and how they have operated.

Effect of Todd report on Maori

Replies Supplement 14 June 1994 p15

Hon Dr Lockwood Smith (Minister of Education): "The Todd Report is ... not a statement of Government policy. Government will be considering the recommendations contained in the report over the next few months. ... It will be necessary to give careful consideration to the various arguments alongside the impact of each proposal, particularly in relation to the likely participation in tertiary education and training of various groups, including Maori."

The Maori Land Legislation Manual - Te Puka Ako Hanganga Mo Nga Ture Whenua Maori

Crown Forestry Rental Trust, June 1994

A computer database containing details of 1,166 enactments and ordinances affecting Maori from 1840 to 1993 (276 of the most important are contained in an accompanying printed manual). For each enactment the database provides the dates of assent, commencement and repeal, lists all amendments, analyses major sections, and provides commentary and references from Parliamentary debates and papers (AJHRs), secondary sources, law reports and Waitangi Tribunal reports. Records are also arranged around subject headings including; the Maori Land Court - structures and jurisdiction, land boards, Maori trustee, alienation, status of land, confiscation, waste lands, development schemes, survey issues, public works, reserves, fisheries, lakes, rivers, foreshores. Also included are lists of statutes in 3 subject areas, harbours (704 acts), waste lands (51 acts), goldfields (69 acts).

Claimant groups before the Rental Trust will receive free copies. The database is publicly available through GP Print for $500. It runs on an Apple/System 6 or PC/Windows 3.0 system and requires Claris Filemaker Pro 2.0. The data takes 4-6mb of disk space.

[ed: this database is "user friendly" and will be an invaluable aid to researchers and lawyers in the field of Maori claims. Its prime achievement is to order and make sense of the large number of statutes which affected Maori through the colonial period. It is in its own right a fascinating study of colonisation through law. Researchers are able to approach an issue through dates, subjects, type of act (public, local, provincial etc) and key words such (including block names in some cases), and quickly map out the relevant law. By way of example, the keywords "Treaty of Waitangi" produce 51 records, including the Thorndon Reclamation Act 1882, still in force, and a commentary recording the statement of the Maori MP Tawhai that he felt sorry for the fish that would be driven from their homes by the act, and "By the Treaty of Waitangi it was supposed that the Maori were to retain all their goods and property whether above or below the earth, and the Europeans bought only the surface."]

The Next Three Years on the Path to 2010

National Government, June 1994

A document providing "specific objectives and a work programme for achieving the vision set out in Path to 2010". Under the heading Maori development, two objectives are outlined:
- to reach fair settlements to claims, including settling all major claims by 2000
- tackling Maori disadvantage through employment and education initiatives.

Specific strategies for employment and education include awaiting the Employment Task Force report and giving careful consideration to its recommendations, the gradual phasing in of an obligation on young people to be in training or work, and maintenance of current TOPs and similar programmes.

[ed: described by one economist as a document "studded with platitudes" (Dominion 24 June 1994).]

Tertiary Education and "Option B"

Education, its funding and its future is an area of strong emotions and ready opinions (no apologies for adding another). The Report of the Ministerial Consultative Group on Funding Growth in Tertiary Education and Training is notable for the controversy surrounding "Option B", which, on its face, appears to be a vigorous attempt to upskill poorly performing groups such as Maori by increasing payments from students who in later years will have high earnings, and directing the savings to groups presently under-represented in tertiary education.

Already, a claim has been filed with the tribunal alleging, mainly, a lack of consultation (Wai 431. The tribunal is seeking further details of the Treaty principles involved and how the claimants have been affected). The taskforce notes in the report that it was asked to state that there was insufficient time to fully consult with Maori.

Option B is specific about the sums of money which could be redirected to under-represented groups ($100 million per annum plus $200 million over the next 6 years), and about the criteria to be used for targeting grants. But, while attractive, there are several concerns. Was enough consideration given to the natural slowing in the numbers reaching tertiary age over the coming decade? Option B talks about a "significant expansion in demand", but admits that the growth in the number of 18-24 year olds in the next decade "will be modest".

"Fairness" is a key criteria, leading Option B proponents to suggest that those eventually achieving high lifetime earnings should pay up to 50% of tuition costs. It is also admitted that upfront "costs" such as loans are most discouraging to people on low incomes - something the student representatives on the taskforce gave practical examples of, and Maori submissions made particular complaint about. This effect would be partly, but possibly not fully, addressed by targeted assistance programmes.

Unquestionably, as the report shows, the loans scheme and other recent changes have increased Maori participation in tertiary education. It is also helpfully suggested that there should be continuing research on factors affecting Maori educational achievement. Maori unemployment (at 25%) is a continuing national scandal and significant steps need to be taken. But it should hardly be surprising that some Maori groups view with caution the idea that a "user pays" approach will deliver the goods.

Maori Land Court and Appellate Court

Whakatohea Raupatu Claim Representatives

69 Opotiki MB 11-26, 2 February 1994, Hingston J

This order names 14 persons to act as negotiators for and on behalf of Whakatohea in all matters connected with achieving a settlement of the Whakatohea raupatu claim before the Waitangi Tribunal. Claude Edwards was named claim manager.

[ed: this appears to be the first order under s30(1)(b)/1993 providing for the Chief Judge to refer an application for determination of the most appropriate representatives of a group involved in negotiations. Court minutes show that the hearings became a forum for an extended discussion of authority within the tribe. Two additional members of the court, who were not judges and were chosen for their expertise, were appointed by the Chief Judge to assist in hearing the application.]

Waitangi Tribunal

The Muriwhenua land claims

Wai 45, Doc N2, 28 April 1994

Closing the substantive case for the claimants, counsel asked that the tribunal in its report recommend that the Aupouri State Forest be returned to Maori ownership under the Crown Forest Assets Act 1989. This is the first forest claim where the tribunal has heard almost all the evidence and can properly consider such a recommendation. Further hearings follow in June. The tribunal report is expected later in the year.

Pepepe land claim

Wai 185, 6 May 1994, CJ Durie

Retired Deputy Chief Judge Ashley McHugh has been appointed to mediate a settlement of this claim concerning around 4 hectares of land in Huntly taken for education purposes (an intermediate school) and allegedly not used for this purpose.

Exploratory Report on Wai 128 filed by Dame Whina Cooper on behalf of Te Rarawa Ki Hokianga

Wai 128, April 1994. R Daamen

A 140 page report with document bank by a tribunal researcher examining Crown activities in the area from the north side of the Hokianga harbour to Whangape harbour, in the 19th and 20th centuries, covering old land claims, Native Land Court activity, Crown purchases, state forest development, scenic reserves takings, foreshore issues.

Crown Purchases of Maori Land in Early Provincial Hawkes Bay

Wai 201, A Ballara and G Scott. January 1994

A two volume report accompanied by 4 volumes of primary documents, by claimant commissioned researchers, discussing Crown actions in the purchase of 38 blocks, with references to over 230 blocks. The 202 page introduction contains an analysis and conclusions about the adequacy and appropriateness of Crown actions in relation to purchases generally. The purchase history of each of the 38 blocks is then separately considered.

Other Jurisdictions

Te Runanga o Wharekauri Rekohu Inc v The Waitangi Tribunal and others

CP 118/94, Wellington, 12 May 1994, Heron J

An application seeking interim orders restraining the tribunal from hearing claims by Moriori groups. Groups of Taranaki Maori invaded the Chatham Islands in 1837 and killed and enslaved the Moriori population. Later Native Land Court hearings to determine customary title to land in the Chathams awarded 97% to Taranaki Maori on the basis of the "1840 rule", which upheld all conquests prior to 1840. Moriori claims before the tribunal allege, among other matters, that the Crown breached the principles of the Treaty in failing to prevent this result before the Native Land Court, and in failing to respond to Moriori protests about the court determination. They also allege that the Crown responsibility is direct, because the court acted as a "statutory agent" of the Crown. The claims directly attack the court application of the 1840 rule.

Applicants representing descendants of Taranaki Maori with interests in the Chatham Islands sought to prevent the tribunal hearing these claims. The interim orders were sought just days before the tribunal was due to fly to the Chatham Islands to being hearings. An initial submission seeking to prevent any tribunal inquiry was modified, with the applicants seeking merely to restrict the scope of the inquiry to be undertaken. The major ground being that the tribunal could not investigate allegations that the Native Land Court acted as a statutory agent of the Crown, and could not therefore investigate the determinations of the Native Land Court and the application of the 1840 rule. Such an investigation might threaten holders of freehold title who traced that title back to Land Court determinations. The tribunal should not investigate matters which were essentially a dispute between tribes and not about Crown actions. The motive behind the Moriori claim was a desire to boost their entitlement to fishing quota.

Held: that the tribunal should proceed with the inquiry:
- the Maori applicants did not question that Moriori were Maori in terms of Tribunal jurisdiction to hear claims of Maori;
- s6 Treaty of Waitangi Act 1975 gives the tribunal a broad jurisdiction;
- allegations in the Moriori claim related mainly to Crown actions and largely circumvented direct complaints about the workings of the Native Land Court;
- "procedural commonsense" suggested that the Court should not direct the tribunal not to hear any particular sort of evidence in advance;
- historical background to the claims would be an inevitable topic in any investigation undertaken. There was no practical way of "ring fencing" tribunal jurisdiction in advance of an inquiry;
- the tribunal had shown itself well aware of the jurisdictional issues that might arise (tribunal memorandum quoted noting jurisdictional issues and the tribunal powers to defer or end its inquiry on particular issues if this was warranted);
- as to inter-tribal disputes: if the Crown had in the past treated one group differently to another that may be the subject of a finding and recommendations;
- motives are generally irrelevant where statutory rights are being exercised;
- a proper investigation could not avoid discussion of what the Native Land Court did. Without deciding the issue, there would seem to be a "strongly arguable case" that the actions of the Land Court were not the actions of the Crown. The statement of claim was at present "unhappily worded" in this respect. "I am quite confident the argument relating to the separation of the powers and the functions of the Court as opposed to Parliament will be apparent enough to the Tribunal and will no doubt be a consideration when or if the Tribunal makes recommendations."

Commenting on the procedure adopted, the applicants were criticised for raising fundamental questions of jurisdiction by way of informal and unilateral letters to the tribunal. The onus was on the applicants seeking to challenge jurisdiction to request a formal hearing before the tribunal on the matters at issue.

[ed: as noted in an earlier Review (March 1994), Whanganui River claimants have asked the tribunal to "review" the Native Land Court on the basis of a 'Treaty test' rather than a strictly legal one (although how these differ is not specified in detail), and make findings accordingly. The issue has constitutional importance since it goes to the separation of powers, as Heron J has mentioned in this case. The outcome may not be as straightforward as his Honour suggests. The tribunal in it's Te Roroa report (Wai 38, 1992) said that the Native Land Court was an agent of the Crown (p153-154). Another example is the period of the Maori Land Boards after 1900, where the functions of Native Land Court judges were virtually indistinguishable from their role as presidents of those boards.]

Quarantine Waste (NZ) Ltd v Waste Resources Ltd & Another

CP 306/93, Auckland, 2 March 1994, Blanchard J

Waste Resources Ltd operate an incinerator at Auckland International Airport to dispose of waste from aircraft. They sought a consent to use its excess capacity to incinerate waste from outside the airport. This was granted by the local council, subject to certain restrictions, and without notification or hearings under s94(2) of the RMA (where the consent authority is satisfied that the adverse effect on the environment will be minor, and written approval has been obtained from all persons the authority thinks may be adversely affected). Quarantine Waste brought an application for judicial review of that decision.

Among other matters, it suggested that the council had not taken into account Maori concerns because it had not consulted directly with Maori groups. Further evidence at the hearing showed that Waste Resources was involved in ongoing consultation with local Maori interests about the incinerator, particularly in relation to the destruction of medical waste and body parts. There were no concerns expressed about the consent and a kaumatua worked at the incinerator site. The council was aware that the Airport Authority (joint owner of Waste Resources Ltd) was in "continuous consultation" with the Maori about airport developments and Waste Resources advised the council that consultation had occurred about this consent. The council considered this indirect consultation adequate, and also thought there were no matters in this consent which needed to be raised with Maori interests.

Held: on the matter of consultation, the statutory and Treaty obligation of consultation with Maori is placed on the consent authority, not on an applicant for a resource consent. Section 7 (s8 surely?) imposes a duty on the consent authority to be on inquiry - Gill v Rotorua District Council (1993) 2 NZRMA 604. In other circumstances, there would be "very real qualms" about "second hand consultation", which carries the potential for distortion by the applicant of Maori views. In this case, the failure to directly consult did not lead to the council failing to take into account a relevant factor.

[ed: This case endorses the view that territorial authorities must take an active approach to consultation and cannot leave the issue to applicants for resource consents. The case does not directly address the issue raised in the Hanton case (Planning Tribunal A10/94) that consent authorities would be seen to be biased by actively consulting Maori prior to deciding on a consent. The correct approach may be that suggested in the Rural Management case (W35/94), reviewed below.]

Rural Management Ltd v Banks Peninsula District Council

W 35/94, 5 May 1994, Treadwell J, with commissioners Johnson & McIntyre

The appellant had taken over a subdivision scheme begun some years prior to the passing of the RMA. A right to discharge sewage into the sea was cancelled by the advent of that Act. Under s372, a ministerial directive had been issued that sewage discharge directly into the sea without passage through soil or wet land was a restricted coastal activity. The cultural sensitivities of Maori were the justification for the reference to passage through soil. Applications for restricted activities required a report and recommendation from the relevant regional council to the Minister of Conservation, who, as the consent authority, made a final decision. The tribunal considered in this case appeals against the regional council report recommending the grant of a right to discharge sewage into the sea after treatment, including passage through sand filters. Among other issues, the tribunal considered concerns expressed by local Maori about the physical and spiritual implications of the sewage scheme, and an alleged lack of consultation.

Held: the ministerial directive was indeterminate, in particular leaving uncertain whether passage of sewage through 'soil' included sand filtration. Maori objections should not prevent the sewage discharge proposal proceeding. Effluent would be treated to a quality where kaimoana would be unaffected physically. It would pass through several treatment stages, including sand filters, before discharge into the sea. While appreciating the Maori view that discharge into the sea offends against mana, and that land based systems are therefore preferable, nearby land based systems were experiencing problems (eg overflow into streams), giving some cause for alarm.

As to the responsibility of local Maori as kaitiaki, kaitiakitanga is not a concept restricted to Maori. The council in recommending the sewage scheme was guarding and improving taonga. The scheme should proceed provided it remained under council and not private control. Regarding consultation with the developers, earlier Maori acquiesence, after discussions, in a long outfall proposal was noted. While failing to attend consultation meetings arranged by the developers could be a way of signifying disapproval, there was no breach of a Treaty duty to consult if the Maori side withdrew in this way without giving reasons.

Regarding consultation with the council, a consent authority should not consult unilaterally with one party. The Treaty did not set aside the fundamental principle against the appearance of bias. Ngatiwai (A 7/94) and Hanton (A3/94) decisions support this view. Gill ((1993) 2 NZRMA 604) and Haddon (A77/93) should be read in the context of their own facts. However, consent authorities can refer an application back to parties before hearing for further consultation. Officers of the consent authority can consult prior to hearing, but for the purpose of relaying information only.

[ed: The danger of loosely drafted provisions in the resource law area is highlighted. This particularly affects Maori concepts in resource law (see comments on the Coastal Policy Statement reviewed below). Traditional views about the spiritual impact of sewage discharges into the sea face an interesting dilemma where such systems are less polluting than land based systems, and use sand/soil filtration processes.

There now appear to be differing opinions over the approach to "kaitiaki". Most tribunal decisions have assumed it is a Maori-only concept. In NZ Rail Ltd & Ors v Malborough District Council (C36/93) the tribunal doubted a submission suggesting it might apply to non-Maori. This view seems to be supported by the coastal policy statement comment that "tangata whenua are the kaitiaki of the coastal environment" (see below), and the lengthy discussion of the term as a Maori concept in the board of inquiry report on the statement (Report and Recommendations, February 1994, under "Definitions").

The suggestion that council planning officers undertake consultation and relay the results to the council may resolve the apparent differences between the Gill/Haddon and Ngatiwai/Hanton decisions. The comments of Blanchard J in the Quarantine Waste case (reviewed above) suggest however that the consultation issue may not yet be finally settled.]

Te Tii (Waitangi) A-Marae & Others v Northland Regional Council & Another

A 25/94, 31 March 1994, Sheppard J

A land-use consent was granted to a local council to establish a cemetery. Submissions from local Maori were considered at the hearing. Submitters were notified of the decision and of the 15 day period in which to lodge appeals. The applicants sought a waiver of the time restriction on filing an appeal. The council had purchased the land for the cemetery relying on the lack of appeal and argued that it would be unduly prejudiced were the time requirement waived.

Held: rejecting the application, that s281(2) and (3) RMA required the tribunal to be satisfied that no party would suffer prejudice greater than that which might be reasonably expected and unavoidable if the waiver were allowed. A capital commitment had been entered into so that the council would suffer considerably more than just the delay were the waiver given.

General

Results of the Maori Option

Minister of Justice 22/4/1994, Government Statistician 4/5/1994

There will be 5 Maori seats under MMP. The Maori option increased the Maori roll from 104,414 to 136,708 (by 31%), there now being more Maori on the Maori roll than the general roll. The Auckland region has the largest Maori electoral population (63,053).

Draft Minerals Programme for Petroleum

May 1994, Energy & Resources Division, Ministry of Commerce

This document outlines government policy for managing petroleum, a Crown-owned mineral under the Crown Minerals Act 1991, throughout NZ, including the seabed to the 200 mile limit. The CMA states that persons exercising functions under the Act shall "have regard" to the principles of the Treaty. The draft suggests this requires that the Crown act reasonably and in good faith, make informed decisions, and consider if any decision will impeded the settlement of outstanding Maori grievances. At the request of an "iwi" (a term which is not defined), designated areas of land of particular importance to the mana of the iwi may be excluded from the programme (s15(3)). No such requests have yet been received.

It is proposed to allocate rights to exploit petroleum, in the main, via "Petroleum Exploration Permit Block Offers". This involves competitive tendering for permits which would give the right to explore defined areas or "blocks". Maori will be consulted before any particular block offer is made and will be given not less than 1 month to comment. Again, "iwi" may request that areas of particular importance to their mana within a proposed block be excluded from an offer. Details are given of the types of matters the Minister would consider in determining whether to exclude an area (para 3.13). These include the existence of a claim to the Waitangi Tribunal, iwi management plans for the area, whether other legislation already places protection over the area eg resource management and historic places legislation.

Seven hui, including one national hui, were held in 1992 to consider Maori viewpoints on minerals programmes generally (notice of this draft must be sent to "all iwi" (s16(1)(b))). Submissions must be filed with the Ministry of Commerce by the 11 July 1994.

[ed: there is dispute about the Crown nationalisation of petroleum in 1937. In the Taranaki claims before the Waitangi Tribunal, evidence has been produced that Maori politicians raised Treaty issues before the 1937 legislation was passed. The requirement for officials to "have regard" to the principles of the Treaty (CMA s4) can be compared to the stricter requirement on authorities to "take into account" Treaty principles under the Resource Management Act 1991 (s8). There remains the perennial problem of just what constitutes an iwi and who has the authority to seek the exemption of areas from minerals programmes and permits. The draft interprets "iwi" as "tangata whenua hapu and iwi" - no doubt deriving assistance from definitions in the RMA (s2(1) "tangata whenua", "iwi authority", "mana whenua"). Maori submissions involving sensitive issues receive some protection under CMA s17(7) which provides that notwithstanding the Official Information Act 1982, the Minister may refuse to make information in submissions available if satisfied that a serious offence to tikanga Maori or disclosure of the location of waahi tapu might result, and this consideration outweighs the public interest in making the information available.]

NZ Coastal Policy Statement 1994

5 May 1994, Department of Conservation/Te Papa Atawhai

This is the final statement, to which regional policies and regional and district plans must conform, affecting land and sea areas below high water springs, and the land backdrop to the coast. A board of inquiry investigated the draft and received submissions. Large parts of the draft were reworded. Almost all of these changes appear to have been incorporated. Points of interest:

- "tangata whenua are the kaitiaki of the coastal environment" (General Principle 9);
- a requirement that, in relation to identified "characteristics" of special value to tangata whenua (ie waahi tapu and the like) local authorities consider delegation of management to iwi authorities, or a special committee of the local authority including iwi representatives (under ss33 & 34 RMA) (Policy 2.1.3);
- restrictions may be imposed on public access to the coastal marine area where it is necessary to "protect Maori cultural values" (Policy 3.5.1(b));
- in relation to land of the Crown in the marine coastal area, Maori customary knowledge about the coastal environment is to be incorporated in policy statements and plans and in the consideration of resource consent applications (Policy 4.2.2(e));
- discharges of human sewage directly into water, without passing through land, shall occur only where this better meets the purpose of the RMA than disposal on land, and Maori viewpoints have been fully considered (Policy 5.1.2).

[ed: the policy providing for restrictions, where necessary, on public access to the coast to better protect Maori cultural values does not give guidance on the sort of situations in which this policy would apply. The board of inquiry simply referred to s6(e) and s8 of the RMA. It will perhaps dovetail with forthcoming fishing regulations providing for Maori management of some coastal areas.]

Funding Growth in Tertiary Education and Training

Report of the Ministerial Consultative Group, 12 May 1994.

A report considering how the substantial and continuing growth in tertiary education should be funded in the face of ongoing fiscal constraints. 71,000 places in tertiary education were funded in 1985 costing $580 million, this figure was 132,000 places costing $1986 million in 1993. The group recommended consideration of 2 funding options, A and B (2 members abstaining), both including rises in private contributions.

Maori participation in tertiary education is growing but at a rate substantially lower than for the rest of the population. In 1993 there were 18,527 Maori in tertiary courses (9.6% of total tertiary places). Of these, 10,573 were full time students. Compared with non-Maori, Maori students were more likely to be in polytechnics taking full-time courses, or, if at university, taking part-time courses. They were less likely to enter a formal assessment process, tended to sit fewer papers, and on average were awarded lower grades. The growing Maori population is experiencing significantly higher rates of unemployment than non-Maori (25% vs 10%) and lower rates of education generally (50% having no school or tertiary qualification, 31% for non-Maori). Maori submissions were noted which stressed; a recognition that the history and politics of education affect Maori participation (eg ethnocentrism), greater Maori control in education was required, student fees and loans act as a considerable disincentive, and special funding assistance is required.

Option A notes that all predictions for tertiary participation after 1994 show growth will not be as great as from 1990-94, and argues that maintaining and building on recent reforms is the best course. The appropriate funding split is 75% public to 25% private contribution. No specific measures for greater Maori participation were noted.

Option B similarly notes modest growth in numbers of 18-24 year olds in the coming decade, but seeks to address the needs of those presently unskilled. Financial barriers should not deny access to education. Fairness demands that those who benefit most should bear some costs. By the year 2000, students whose lifetime earnings exceed a threshold level should make a contribution not exceeding 50% of tuition costs. This greater contribution will allow $100 million per annum to be reallocated to pre-school and compulsory education and $200 million over 6 years to tertiary education and training of under-represented groups.

The two dissenting members proposed that growth in tertiary education be funded from general taxation, present costs to students should not be increased, the discouraging effect of fees increases should be considered.

Employment. The Issues

Prime Ministerial Task Force on Employment, May 1994

The first report of the taskforce resulting from the joint party agreement to address employment issues. Contains an uninspiring analysis of the unemployment situation, and the assertion that "The Treaty of Waitangi is the founding document of our nation. Article III in particular guarantees the rights and privileges of citizenship to all New Zealanders". The extraordinarily high rate of joblessness among Maori does not receive separate analysis. Submissions are now sought, and an Options paper will follow in September 1994.

Report of Te Ohu Kai Moana/Treaty of Waitangi Fisheries Commission for the year ended September 1993

Tabled on 29 March 1994

The first report of the reconstituted commission formerly known as the Maori Fisheries Commission. Outlines activities of the new commission in the period to September 1993 including work on a new fisheries act, which is ongoing.

[ed: Te Ohu Kai Moana recently announced it has been unable to begin allocation of fishing assets directly to iwi in 1994 (consultation is ongoing), and it will again lease its wetfish holdings for the 1994/95 season. Iwi have until 10 June 1994 to comment on lease proposals, including inshore wetfish quota being assigned on the basis of coastline, and deep-water quota being assigned on a combined coastline (50%) and population (50%) basis (Panui 20 Haratua 1994). The Minister of Fisheries has announced the scrapping of a proposal to impose a catch levy, which would have been opposed by Maori as a breach of the Treaty. Instead, fishing operators will pay the costs incurred by government in managing commercial fisheries. How this will be charged to operators has not yet been finalised.]

Maori Electoral Rights

The February issue of the Review commented on the Waitangi Tribunal report on the electoral option. Proceedings have now been issued seeking to judicially review the Crown's decision not to provide further funding. The writers have not viewed the statement of claim, but issues of reasonableness and fiduciary obligations stand out as matters for consideration by the Court.

Both the Treaty principles and the Wednesbury principles may call into question the reasonableness of the Crown's actions. On the Treaty based analysis, "vigorous action" should have been taken by the Crown to protect Maori electoral rights. The Treaty approach is, in this context, limited by the lack of statutory incorporation of the Treaty. But, if recent judgments are anything to go by - as Cooke P stated inTe Runanganui O Te Ika Whenua Inc Society & Ors v A-G (CA 124/93) - "the Treaty of Waitangi has been acquiring some permeating influence in New Zealand law ..."

The Wednesbury approach may yet provide the answer. Lord Bridge of Harwich in a case concerning human rights (Regina v Brind [1991] 1 AC 696) suggested that Wednesbury principles permit the courts to ask whether a decision maker could "reasonably" decide that competing public interests justified a restriction on the right in question. Applying that test here - has the Minister of Justice or the relevant decision maker justifiably limited the funding in light of the fundamental constitutional right at risk?

Perhaps this is also a case where the Courts can rule on the fiduciary duty question. Maori cession of sovereignty in exchange for kawanatanga, the historical failure to provide resources to encourage electoral participation and the vulnerable position of Maori due to the Crown's failure, arguably provide a basis for the "fiduciary" obligation to protect Maori constitutional/electoral rights. Recent case law both here and overseas confirm that the fiduciary duty exists. We await the outcome of the judicial review application.

Christian Whata
Sharon Shea
(Kensington Swan)
Disclaimer: This editorial is legal comment of a general nature only.

Maori Land Court and Appellate Court

New Deputy Chief Judge

From the 11 April 1994, Judge Norman Smith took up his appointment as the new Deputy Chief Judge of the Maori Land Court. He replaces former Deputy Chief Judge Ashley McHugh who retired on the 31 March 1994, after more than 6 years in that post. Judge Smith has been a MLC judge in Rotorua (Waiariki District).

Case Stated re Pakiri R Block and Rahui Te Kuri Incorporation

Case Stated 1/93, 23 March 1993, Deputy Chief Judge McHugh, Smith, Carter

The Maori Affairs Act 1953 s2(2)(f) provides that Maori freehold land, where it is transferred otherwise than by MLC order, is deemed to be General land, unless the instrument of transfer states on its face that the land remains Maori freehold land. Where it is not the intention that the land become general land, a determination by the MLC may later be sought that the land remains Maori land (s30(1)(i)). Section 233 provides that alienations of Maori freehold land are to have no force or effect until the instrument of alienation is endorsed with a memorial stating that the alienation has been noted in the records of the MLC.

These provisions reflect a legislative tension between the desire to prevent unwitting changes to the status of Maori land, while also providing certainty as to title to purchasers acting in good faith. This case stated considered the effect of registration under the Land Transfer Act on these sections. More strongly worded provisions in Te Ture Whenua Maori 1993 were also considered.

Held: s2(2)(f)/1953 means that upon registration of a transfer an irrebuttable presumption applies that the land is general land irrespective of its true status. An order may be sought subsequently under s30(1)(i)/1953 determining the land to be Maori land, but the consent of the registered proprietor would be required before any such order was made. In Re Kopua Deceased [1987] 15 Ruatoria MB 238 and In Re Haumingi 9B2A [1984] 210 Rotorua MB 106 followed, In Re Otorohanga A4A [1984] 63 Waikato MB 246 dissented from. Section 130/1993 however, now provides that the status of land is definitely not affected by registration.

Section 233(1)/1953 affects an alienation only until it is registered under the Land Transfer Act, at which point an indefeasible title is gained. Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 followed (where it was said that s233(1) was a matter of "administrative convenience" and not of "deep legal or social importance"). In Re Estate Mana Hunter (1993) 135 Napier MB 165 dissented from.

Section 126/1993 (District Land Registrar shall not register any instrument affecting Maori land unless it has been confirmed) suggests that where a transfer is registered without confirmation, s81 of the Land Transfer Act 1952 providing for correction of titles would be used to correct the title. This would be so despite previous authority suggesting s81 is for slips or minor errors in the record only.

[ed: a decision with important implications. Does the protection of Maori land through the strongly worded mechanisms provided in Te Ture Whenua Maori 1993 now stand as an exception to the principle of indefeasibility? The High Court decision in the Housing Corporation case was reluctantly followed. Their honours thought it "understandable" in light of the Treaty guarantee of full exclusive and undisturbed possession to Maori of their lands, and specific provisions protecting Maori title in the 1953 legislation, that judges of the MLC should question whether they are required to follow the principle of indefeasibility. They also noted that since the High Court decision "a feeling has arisen among some Judges that the Land Transfer Office has adopted a somewhat cavalier attitude towards Maori land and the protective mechanisms of the Maori Affairs Act 1953." Approval was expressed of procedures being put in place by the Land Transfer Office to ensure compliance with the 1993 Act. If their honours' views about the effect of the 1993 Act on indefeasibility are correct, such compliance now assumes considerable importance]

The Maori Reservations Regulations 1994

SR 1994/57, commencing 23 May 1994

These revise the archaic regulations of 1963 which were concerned largely with health and sobriety (eg trustees to prevent prolongation of hui or tangi which might become a menace to health). The new regulations concentrate on administrative structures and procedures and accountability. For marae reservations a separate charter governing the administration is to be drawn up (cl7). A specific power is provided for trustees to employ advisors to assist with administration (cl8(e)). In a small change to perhaps better reflect custom, tangi hanga are specifically exempted from the requirement that prior written authorisation of the trustees is required before major activities are held on the reservation (cl9(2)).

The Maori Incorporations Constitution Regulations 1994

SR 1994/60, commencing 1 June 1994

Revises the old regulations of 1969 to bring them into line with the 1993 Act. A notable change is cl27 under which shareholders by special resolution may fix a specified number of shares as a "minimum share unit", and shareholders may not engage in transfers which would cut into their minimum unit. Trading is forbidden in numbers of shares below the number set as the minimum unit. The exception is where a transfer consists of all the transferor's shares and they are offered to an existing shareholder or the incorporation or trustee on behalf of a putea or whanau trust.

In keeping with the times, cl26 permits a "teleconference" meeting of committees of management. Described as "The contemporaneous linking together by telephone or other means of instantaneous audio (or audio and visual) communication" of a quorum of the committee, it includes overseas telephone links. All committee members entitled to be at the meeting are entitled to a telephone or other link, and all present must be able to hear every other member throughout the meeting.

These regulations revoke the Maori Incorporations Regulations 1969/49 and amendment 1976/108.

Te Ture Whenua Maori Amendment Bill 1994

This contains numerous "fine tuning" amendments, but also more substantial amendments concerning some dealings with Maori land. Several clauses giving greater flexibility to the operation of incorporations. Clause 14 clarifies the intention of the 1993 Act that corporations may acquire land purely for investment purposes, in which case it is held by the incorporation rather than the shareholders and may be dealt with as general land. Clause 16 provides that incorporations may by special resolution make their own constitutions, subject to general guidelines by regulation, rather than having the form absolutely prescribed by regulation. They may also adjust their overall shareholding (cl17).

Leasehold interests in Maori freehold land under cross-leases are to be treated as a beneficial interest in Maori freehold land (cl2 & 4). A certificate of title in respect of a cross lease may be issued (cl4). This is an exception to the rule that certificates may not issue for undivided interests in Maori freehold land).

Matters where a certificate of confirmation from the Registrar only is required are to be adjusted. The transfer or discharge of a mortgage now requires full confirmation, but alienation of a sublease and renewal of a sublease or licence are to be matters where only the Registrar's confirmation is required.

Waitangi Tribunal

Ngati Motai lands claim

Wai 254, 31 March 1994, CJ Durie

Tribunal member John Kneebone has been appointed to mediate this claim concerning, inter alia, an old meeting house site called Renga Renga. The appointment of a mediator is made under clause 9A of the second schedule of the Treaty of Waitangi Act 1975. The mediator is required to use his best efforts to effect a settlement, but if this is not possible, to report back to the tribunal on issues agreed and those unresolved. Other matters referred to a mediator have included the Takaporewa (Stephens) Island claim (Wai 91), a claim to lands at Waitomo (Wai 51), and a claim over the Waikareao estuary roadway proposal in Tauranga (Wai 86).

Other Jurisdictions

Cook Island Community (HB) Inc v Hastings District Council and T Kaui & G Ruwhiu

W19/94, 31 March 1994, Treadwell J, with commissioners Bishop & Rowan

Two Maori applicants sought to establish a funeral parlour business in a suburb with a large Maori population, to cater in an appropriate way for mainly Maori funerals. This was an appeal against a decision by the council granting permission to construct the parlour opposite a Cook Island community centre which had been in operation for 14 years. The major objection was that Cook Island customs of respect of the dead would restrict activities (weddings, birthdays, cabarets, sports, cultural nights etc) in the community centre whenever bodies were present in the proposed parlour. For the Maori applicants it was argued that s6 (Maori relationship with their ancestral lands a matter of national importance) and s8 (principles of the Treaty to be taken into account in decisions) should be weighted against the objections of the appellants. The application had support from local Maori organisations and one of the applicants was a descendant of an original owner of the land in the area of the proposal.

Held: allowing the appeal, that Maori concerns did not take precedence in this case. Another location could be used. It was further commented that any other decision would result in "irreparable cultural divisiveness unacceptable in our multi-cultural society and contrary to the thrust of the RM Act." Although the appellants had been uncompromising in their approach, beliefs if sincerely held "are not capable of compromise."

General

Naming of Maori Electorates

Replies Supplement 22 March 1994

The government is seeking legal advice whether there is power under the Electoral Act 1993 to name the Maori electoral districts.

[ed: The 1993 Act provides at s40(1)(a) that for general electoral districts, a representation commission, after due inquiry, is to report the names and boundaries of districts to the Governor-General. For Maori electoral districts, the Act provides that boundaries only are to be reported on (s45(9)(a).

Also of interest is the presence of the Chief Judge of the MLC on the independent Electoral Commission, a body empowered to maintain the register of political parties, refusing registration where a proposed party name is offensive or misleading. The Commission is also to promote public awareness of electoral matters and consider and report on any electoral issues as it sees fit (see Electoral Act 1993 ss10A-E and Part IIA inserted by the Electoral Amendment Act 1993). Other members of the Commission are the Secretary of Justice, and the Hon Justice Wallace (President). The Commission will begin work as soon as its last member is appointed. Arrangements are in train for this (see Replies Supplement 5 April 1994)]

The General Agreement on Tariffs and Trade

Concerns about the effect of the recent GATT agreement have been expressed in two main areas; whether the power remains to intervene to ensure provision of services specifically for Maori, and the patenting of important cultural items eg plants, medical practices, and even DNA. The Ministry of Foreign Affairs and Trade/Manatu Aorere (MoFAT) says NZ has made no commitments under the GATT on these issues.

The two documents involved are the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

GATS provides (article 1) that, with respect to sectors covered by the agreement, countries may not discriminate against providers of private services from other countries (the government service sector is entirely excluded from the agreement). Sectors covered in NZ's case include advertising, computers, real estate, services incidental to agriculture, hunting & forestry, audio-visual, education, financial, transport, professional services (eg law, accounting). Sectors excluded include postal, environmental, health & social services, recreational & cultural services, research & development.

There are two specific Maori exemptions in schedules to the agreement. NZ is generally "Unbound for current and future measures ... according more favourable treatment to any Maori person or organisation in relation to the acquisition, establishment or operation of any commercial or industrial undertaking." Under "Audiovisual Services" and the heading "Limitations on national treatment" it is noted that the Broadcasting Commission is required to allocate a minimum of 6% of its budget to Maori programming, and that a Maori Broadcasting Funding Agency (Te Reo Whakapuaki Irirangi) exists. Exemptions are subject to review after 5 years (article 2).

TRIPS provides that nationals of other countries are to receive the same treatment in respect of protection of intellectual property as nationals of NZ, and enjoy equal rights where new advantages or immunities are granted to NZlanders (articles 3 & 4). Article 27 provides that patents are to be made available for new inventions in all fields of technology, but members may exclude from patentability "diagnostic, therapeutic and surgical methods for the treatment of humans or animals" and "plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes". The exemption re plants and animals is to be reviewed 4 years after the agreement comes into force (subparagraphs (a) and (b)). Patentability may also be excluded where commercial exploitation would harm public order or morality. This includes the protection of human, animal or plant life [therefore it presumably covers any DNA patenting].

Implementation of the agreements in NZ requires enactment. The Ministry of Commerce hopes that legislation will be introduced to Parliament in July, coming into effect during 1995.

[ed: Government officials point to the flexibility the Crown in NZ retains in implementing any GATT measures. They also stress that plenty of time is available to discuss any further commitments by NZ which might directly raise Treaty related concerns. Those concerns are increasing. The Waitangi Tribunal has before it a claim concerning, among other things, patent rights over indigenous flora and fauna (Wai 262). The Plant Variety Rights Act 1987 providing for patenting of hybrids is particularly objected to (TRIPS article 27 mentioned above endorses a regime for plant patents). The central issue of how far rights of indigenous groups can be protected in a free market environment is illustrated by the visit this month of Body Shop officials to Rotorua to investigate the possibility of using manuka oil in their product line. That company adopts a consultative approach and seeks to create employment opportunities for indigenous groups. Under GATT free market principles, could the NZ government legislate for such results, and avoid allegations of protectionism? Given the commitment to GATT, would any NZ government have the will to legislate in this way?

There are also benefits of unfettered trade to consider. The agriculture, forestry and fishing industries, which have many Maori participants, will all gain under the GATT. Sealord Products Ltd, for example, has endorsed the latest agreement because of gains achieved for fish exports (Trading Ahead, April 1994 p46)]

Mana Enterprises

NZ Gazette 1994 p1250

From 29 April 1994, nineteen named authorities running MANA enterprise schemes are subject to ss5-7 of the Maori Purposes Act 1993. Those provisions are designed to make it clear that the assets (mostly loans) which these authorities gained under the MANA enterprise scheme are not assets of the Crown, but rather assets of the authorities themselves (see also 1993 NZ Parliamentary Debates vol 536 p16535. The tax implications are spelt out in IRD Tax Information Bulletin vol 5 No 10 March 1994).

International Briefs

This section will appear from time to time providing information on indigenous groups worldwide, using material mainly from the Internet newsgroup alt.native. The computer address/source for each item is acknowledged.

Uprising in Chiapas, Mexico

New Internationalist February 1994, Internet: mail.lmi.org!gwelker

The insurgency which began on New Years Day 1994 in the Chiapas region of Mexico was timed to coincide with the signing of the North American Free Trade Agreement (NAFTA). Indigenous people form the majority of the population in the region. The insurgents were concerned about cheap grain imports under NAFTA which might affect their livelihood, and also amendments to the Mexican constitution allowing foreign ownership of their lands.

Clinton Invites Indian Leaders to Talks

Internet 14 April: vms.cis.pitt.edu!LMITTEN

Leaders of 545 Indian tribes are being invited to meetings with President Clinton at the White House in late April, and with the Attorney General and Interior Secretary on May 5-6 in Albuquerque, New Mexico. The Albuquerque conference will focus on issues involving the Justice and Interior Departments, including tribal jurisdiction, Indian gaming, religious freedom and tribal courts. The administration has been recently criticized for a proposed 13 percent cut in the 1995 budget for the Indian Health Service which provides medical care to 1.3 million Indians as required by treaties with the federal government.

Controversial Dam Project in Malaysia

Internet 18 April: jym@remarque.berkeley.edu

The Malaysia government is embarking on a dam building project which will involve clearcutting 80,000 hectares of forest and the forced resettlement of 5000 people. Much of the forest area is claimed by indigenous communities as their Native Customary Land. Indigenous people in Long Geng have already been jailed for their part in demonstrating and blockading logging roads in an attempt to protect their land from other logging projects there. Hydro-Quebec (which includes the Quebec State Government) will serve as a consultant on the dam project.

Zinc-Copper Mine Proposed near Indian Reserves

Internet 22 April: cls@truffula.sj.ca.us

Exxon Minerals and a Canadian mining company, have entered into a joint venture to mine one of the world's largest zinc-copper sulfide deposits. The proposed mine is to be situated at the headwaters of Wisconsin's Wolf River and adjacent to the Mole Lake Indian Reservation, covering an area of 866 acres, of which more than 10% are wetlands. There is concern that sulfuric mining wastes will harm trout fishing in the Wolf River, wild rice beds on the Mole Chippewa Reservation, and water quality for humans and wildlife.

Mescalero Apache Nuclear Waste Dump

Internet 21 April: milo@scicom.AlphaCDC.COM

The Mescalero Apache tribe and the Minnesota-based Northern States Power Company signed an agreement last month to negotiate building a temporary storage complex on tribal land in south-central New Mexico. Spent fuel from nuclear power plants would be stored at the site.

Peruvian Initiative for Conservation

Internet 15 April: perezoso@igc.apc.org

A representative body of the Aguaruna and Huambisa peoples of Peru's northeastern Amazon has recently initiated "Proyecto Ikam Ayamjut" ("Project We Defend the Jungle"), an initiative that links the conservation concerns of Western environmentalists with the autonomous, ecologically sustainable development concerns of Amazonian peoples. The project seeks to establish several scientific centers in Peru's Upper Maranon Basin which will join indigenous groups and Western scientists in research on the ecology of the Amazon in a cooperative mode that emphasizes the value of traditional knowledge, the development desires of it's indigenous people, and the conservation priorities that environmentalists and the indigenous groups share.

Consultation and Resource Management

Several decisions have now been made by the Planning Tribunal concerning consultation with Maori under the Resource Management Act 1991. They suggest the Act is not as clear on this subject as it might be. In the most recent decision, Hanton & Ors v The Auckland City Council & BP Oil NZ Ltd (A10/94, 1 March 1994, reviewed below) Judge Sheppard held that, for councils, there was no obligation to consult with Maori interests before hearing a resource consent application. His reasoning, in part, was that a council, not being the Crown, could not take on the Treaty duty of consultation which had been spelt out for the Crown by the Court of Appeal. Also, a council would fail to act judicially as the RMA intended if it consulted with one section of the community prior to a hearing. Judge Sheppard did not rule out consultation in special cases, although it is hard to see how the argument of fairness would not apply in every case.

In an earlier decision, Gill v Rotorua District Council ((1993) 2 NZRMA 604) the tribunal ruled that consultation may occur. Judge Kenderdine stated that the council in that case by doing no more than passing on information had not satisfied its duties to Maori under the RMA. No distinction was made between Crown and council obligations. It was assumed that Crown obligations of consultation were now laid on councils by the Act. The duty under the Act, Judge Kenderdine said, is a high one, requiring special regard to be had to Maori interests. The Act itself imposes a "duty to be on enquiry" on councils. Judge Sheppard, distinguished this decision on the ground that a "special background of Maori significance" existed which the council could not have been unaware of. In doing this he followed a decision inNgatiwai Trust Board v Whangarei District Council & Ors (A7/94, reviewed in the previous issue)). But again, if a council would be acting unfairly to consult just one section of the community, is this distinction valid? Judge Kenderdine did not consider a further point raised in Ngatiwai and Hanton, that the RMA provides specifically for consultation with Maori in some contexts (eg the making of policies and plans), but not in decisions over resource consents. Is this because Parliament foresaw precisely the concern about fairness now raised? Perhaps the bigger issue however, is how far the RMA intended for Maori to be given a special status in resource management. Further decisions will be awaited with interest.

Maori Land Court and Appellate Court

In re Kotene Pihema

53 Tauranga MB 105, 18 February 1994, Carter J

The applicant bought a hayshed and had it relocated onto land under a s438/1953 trust of which he was chairman. The relocation was at the cost of the trust. It was used for a training programme. He sought an order under s18(1)(a)/1993 determining ownership.

Held: the building was a fixture to land (the intention was that it remain on the land). Consequently legal ownership was with the shareholders in the land. Section 18(1)(a) allows consideration of equities. The court considers matters such as evidence of exclusive occupation of a building, consultation with other owners, acceptance by other owners that a building belongs to the applicant. Court jurisdiction could be said to flow from tikanga Maori where families built homes on tribal lands. In Re Tikouma No 5 Block (92 Hauraki MB 1) was considered (where lessees who were major owners in a block were held not to have ownership of buildings erected and exclusively used by them). No evidence suggested any equitable ownership remained in the applicant in this case (the trust and not the applicant paid the relocation costs, there had been no consultation with trustees, a conflict of interest would exist if ownership of the building remained in the chairperson after his unilateral decision to use trust money to relocate it).

The Maori Land Court Rules 1994

SR 1994/35, effective from 18 March 1994

The new rules attempt to comprehensively codify Maori Land Court practice (as was envisaged by s95/1993 which replaced the much briefer s25/1953). For example, Part III dealing with Notification of Applications sets out in 19 detailed clauses the procedure for drawing up the Panui (the old rules dealt with notification in one clause). Similarly, Part V details the Disposal of Proceedings over 13 clauses. A new Part XIX is added concerning the making and maintenance of the records of the court.

Other features include details of the powers of the registrar to conduct uncontested cases and inquire and report on proceedings generally where the court refers them (clauses 46-51 and 87). Particulars of applications to form each of the 5 new types of trusts are included under Part XIII. Clause 15 provides that applications may be in the Maori language. Of particular interest are the rules dealing with the preferred classes of alienees who must be given first right of refusal to proposed alienations of Maori freehold land. The rules provide for potential members of the class to be notified by a combination of newspaper notices, personal service and any other directions of the court (clauses 112 and 117). The new rules replace the rules of 1958/162 and amendments.

Regulations under Te Ture Whenua Maori Act 1993

Hon J Luxton reply to Hon K T Wetere, Replies Supplement 22 March 1994

There are 5 sets of regulations required for Te Ture Whenua Maori Act 1993:

- Fees Regulations came into force prior to 1 July 1993
- Maori Incorporation Regulations will be finalised before the end of March 1994
- Maori Reservation Regulations have been drafted and remain to be finalised
- Powers of Assembled Owners Regulations; draft awaited from Parliamentary Counsel Office
- Maori Occupational Orders Regulations; draft awaited from Parliamentary Counsel Office

Waitangi Tribunal

Whanganui River Claim

Wai 167, A77. Opening Submissions of Counsel for Claimants, S Elias QC, 18 March 1994

Under "preliminary issues which need resolution", counsel challenged the view put forward by the Crown that the tribunal may only examine actions or policies of the Crown and consequently:

- has no function to determine whether the common law is in accordance with the principles of the Treaty (in this claim the issue being the application of the ad medium filum rule to the Whanganui river);
- has no jurisdiction to make recommendations in relation to the actions of a regional council (the issue here being a proposed regional plan affecting the river).

It was argued that these views are wrong in law (despite earlier tribunal reports stating that courts and local authorities do not act "by or on behalf of the Crown"). The focus should not be on the body of law discussing the liability of the Crown, but rather on the transfer of the whole bundle of sovereign rights under the Treaty of which the power to do justice is a significant part. The status of local authorities as delegates is clear in the legislation under which they operate. The tribunal has a distinct function and does not review the courts, but rather applies a Treaty test as opposed to a legal one. It should not therefore defer to bodies exercising entirely different functions. It would be absurd to think that it had power to review legislation, to which common law is subordinate, but no power to review common law itself. The tribunal was invited to state a case to the High Court if it had any doubts on these points.

Waikura lands claim

Wai 422, 28 February 1994, CJ Durie

Privately-owned land which was central to the area under claim had come up for sale. The claimants had raised funds to purchase the land, but sought an urgent hearing and recommendation to have the Crown assist in the completion of the purchase. The tribunal was unable to give the matter urgency but suggested to the Minister of Maori Affairs and Justice that the land might be bought and the Crown share held pending a final determination of the claim by hearing or negotiation. The tribunal was aware of the sensitivities involved in the acquisition of private land for such purposes, but pointed out that there was international precedent for such private land purchases in the buy-back scheme operating in New South Wales to re-establish the landholdings of dispossessed aboriginal groups.

Current Membership of the Waitangi Tribunal

Hon J Luxton reply to Hon D Caygill, Replies Supplement 22 March 1994

The current members of the Waitangi Tribunal and the expiry dates of their respective terms of office:

Name Present term expires
Chairperson
Chief Judge Edward Durie: not applicable
Members
Right Reverend Manu Bennett: 30 June 1994
Mary Boyd: 30 June 1995
Brian Corban: 30 June 1996
John Ingram, CBE: 30 June 1995
Professor Sir Hugh Kawharu: 30 June 1994
John Kneebone, CMG: 30 June 1995
Joanne Morris, OBE: 30 June 1996
Professor Gordon Orr: 30 June 1996
Pamela Ringwood: 1 September 1996
Professor Keith Sorrenson: 30 June 1995
Associate Professor Evelyn Stokes: 30 June 1995
Georgina Te Heuheu, QSO: 30 June 1995
Makarini Temara: 1 July 1996
Keita Whakato Walker: 1 July 1996
Hepora Young, JP: 30 June 1995

Other Jurisdictions

Wikeepa v Police

AP 62/93, HC Tauranga. 2 February 1994. Hillyer J

This was an appeal against convictions for resisting arrest and assaulting a constable on the grounds that the law prohibiting such actions did not bind the convicted because of the Treaty of Waitangi. In a brief oral judgment the appeals were dismissed, the court holding that it could not sustain any submission that the Treaty prevented citizens, Maori or Pakeha, from being subject to the law.

JJ Hanton & Ors v The Auckland City Council & BP Oil NZ Ltd

A10/94, 1 March 1994, Sheppard J

This was an appeal against a consent to build a service station, to be located on former Auckland Area Health Board land. Ngati Whatua o Orakei Trust Board (owning adjacent land) raised several objections including the effect of the proposal on the heritage value of the land and Maori links with their ancestral land, and that the land was regarded as part of the public estate.

Held: there was no evidence of any "particular relationship" of Maori to the site, or of any effect of the proposal on heritage values or Maori links to ancestral land. As to claims to the Waitangi Tribunal in the area, they are general, were lodged after the land was sold by the Area Health Board, had not been heard or reported on by the tribunal, and the land is subject to the section preventing the tribunal from recommending the purchase of private land by the Crown. The private status of the land at the time the application for a consent was lodged, the fact the council knew of no waahi tapu or archaeological features on the site, nor any special effect on adjacent land meant there was no duty on the city council to separately notify the trust board.

Further, there is no obligation on a consent authority to consult Maori over a resource consent application:

- s8 requires consent authorities to take into account the principles of the Treaty, but not themselves to be subject to obligations which fall on the Crown (where the consent authority is the Crown the situation is different eg Haddon case);
- consent authorities are not deciding on the disposal of Crown assets in a manner which might affect the resolution of Treaty claims. Court of Appeal comments on Treaty principles are therefore not directly applicable ;
- the RMA provides a detailed code in which Maori are included (eg Maori must be consulted about policies and plans), but omits any express duty of consultation for consent applications;
- consent authorities would fail to act judicially by consulting with one particular community interest prior to public hearings.

Tribunal decisions in Gill v Rotorua District Council ((1993) 2 NZRMA 604) and Haddon v Auckland Regional Council (A77/93, 11 August 1993) were distinguished, and the reasoning in Ngatiwai Trust Board (A7/94, 11 February 1994, see February issue) adopted.

[ed: on the basis of this decision, the position when considering Maori interests in resource consents now seems to be as follows: If the Crown is the consent authority, there is usually a duty of consultation (Haddon and Hanton). In other cases, there is no obligation to consult. Council planning officers in preparing reports on applications should carefully consider if there are Maori interests (Ngatiwai). Something more than a general Maori interest in the land affected must be evident (Ngatiwai and Hanton). All consent authorities likewise should carefully consider if there are Maori interests when requiring information or further information to make decisions and in deciding who to notify (Ngatiwai). Consent authorities in finally deciding on an application must have regard to any Maori interests (Ngatiwai). Claims by Maori to the ownership of resources are not issues planning authorities can consider under the RMA (Haddon).]

General

Press Statement from Minister of Fisheries

3 March 1993

Regulation 27 of the Fisheries (Amateur Fishing) Regulations will be repealed and replaced with comprehensive Maori traditional fishing regulations. The current regulation was always intended as an interim measure until more detailed regulations were passed. Over 120 submissions have been received on proposed new regulations with equal numbers from Maori and non-Maori. The new regulations are expected to be in place by the middle of the year.

[ed: Presently under regulation 27, the Ministry of Agriculture and Fisheries (MAF) has approved generally takings for hui or tangi held on a marae. Kaumatua approval is all that is required, and a written report on what is taken must be supplied to the nearest MAF office within 2 weeks of the taking. However for takings for hui or tangi at venues other than marae, and for traditional non-commercial purposes other than hui or tangi, only kaumatua or Maori authorities nominated by Maori and approved by the Director-General of MAF can give approval. A written report is again required. Special conditions exist for rock lobster (MAF letter of 3 November 1993).

The more comprehensive regulations under discussion would provide a regular system of appointment of kaitiaki and spell out their powers, probably including the power to make bylaws to manage non-commercial fisheries. They would also provide for the establishment of mataitai reserves.(Discussion document, Treaty of Waitangi Fisheries Commission)]

Report and Recommendations of the Board of Inquiry into the NZ Coastal Policy Statement

Department of Conservation, 14 February 1994

This was a report required under the RMA where the Minister has proposed a NZ coastal policy statement (NZCPS). The board heard and received public submissions on the proposed statement. Among the changes recommended:

- Kaitiakitanga is inadequately expressed in the English used in the RMA. This has serious implications for the successful implementation of the NZCPS. While stressing that some terms could only be understood in Maori, a fuller definition in English of the concepts behind kaitiakitanga was provided;
- a principle of the plan should be that "the tangata whenua are the kaitiaki of the coastal environment" (new clause 12);
- the protection of features of significance to Maori should be in accordance with tikanga Maori which may involve non-disclosure of locations (chapter 2);
- where special features are identified local authorities are to consider the transfer of management functions to iwi authorities and/or delegation to a committee of the local authority comprising representatives of the tangata whenua (chapter 2);
- "papakainga housing" to be provided for "in appropriate places" and redefined to include all types of "residential occupancy on any ancestral land owned by Maori" (policy 3.2.7);
- the policy providing for the Minister to anticipate Treaty claim settlements by providing for Maori only uses in parts of regional coastal plans should be deleted as ultra vires the RMA (policy 4.1.1);
- the lack of funding for Maori for the regular consultation which the proposed statement requires, needs to be addressed;
- a set of working guidelines on Treaty issues should be drawn up for those exercising functions and powers under the RMA;
- a special Maori task force, separately funded, and comprising equal numbers of Crown/Maori appointees, should be established to oversee all Department of Conservation work in relation to Maori.

The view of the NZ Maori Council, that the proposed statement and the RMA did not provide rangatiratanga as envisaged by the Treaty and that the consultation process should begin anew, was noted. It was hoped that the proposed task force might address these concerns. Members of the Board of Inquiry were Arnold Turner, Dr Margaret Mutu, Denis Nugent, Colin Mcnab, Maui Solomon.

Maori Claims. How to Research and Write a Report

Jane Tucker. Waitangi Tribunal occasional publication 1/1994. 43pp

A guide to research for claims before the Waitangi Tribunal. It is a compilation of information provided in a 13 day introductory course piloted in 1991. The booklet contains information on research planning, finding sources, note taking and writing up a final report. Copies are available from the Waitangi Tribunal.

Extract from address of Hon JHB Bolger to Newspaper Publishers Association Annual Conference

Blenheim, 16 March 1994

Let me answer the question raised by the Leader of the Labour Party - will a move to an elected head of state affect the obligations that flow from the Treaty of Waitangi. My clear view is no.
The obligations that flow from the Treaty for all practical purposes have been and will be given effect by the elected Government - and that will continue.
I am pleased to see Dr Robert Mahuta the chief adviser to the Maori Queen taking a very sensible view of the matter by saying he has long expected such a move and suggesting that "Progression from a relationship with the Crown to a republic may be part of the process" of reconciling past wrongs.
On the question of having the final Court of Appeal in Wellington rather than in London we must first satisfy ourselves that the current appeal processes are adequate - or take steps to make them so.
That shouldn't take forever.
We really don't want issues relating to unique New Zealand cases - such as the Treaty of Waitangi - dealt with in a distant court.

Law Commission appointment

Waitangi Tribunal member Joanne Morris has been appointed to the Law Commission.

Te Ture Whenua Maori Amendment Bill

This bill was introduced into the House on 29 March 1994, given its first reading, and referred to the Maori Affairs select committee (more details will be provided next month).

Extract from Maiden Speech of Hon Tau Henare, MP Northern Maori

15 March 1994

Maori in the North have had to struggle with some bleak realities. ....
The reality of knowing that your forebears, a proud people of substance and energy, witnessed the gradual erosion of all their rights guaranteed by the Treaty as laws were enacted to asset strip the Maori people. In the Northern Maori Electorate examples of this are legendary.
The reality of listening to politicians telling New Zealand that they are preparing to settle Treaty Claims while Maori know that no serious attempt is being made to even identify what those claims actually are and what the cost has been to Maori.
The reality of knowing that Maori culture and heritage today is up for interpretation and definition by those administrators of the law who deal with such words in legislation as tangata whenua, wahitapu, kaitiakitanga and taiapure. And that Maori have become passive as the outer world bears down to define and limit their culture, inherent in which lie the values that keep Maori strong. ....
The reality of being at the brunt end of the free market unprepared, unresourced and unable to do much about that in the short term except to exercise their vote.
And vote they did...

Dame Whina Cooper

Northern Maori elder Dame Whina Cooper died on 26 March 1994 aged 98. Haere, e Kui, haere.

The End of the Recession?

At first glance the report of the Waitangi Tribunal this month on electoral reform does not appear groundbreaking. Maori groups complained that the money so far spent on advertising of the Maori electoral option was inadequate to fully inform Maori voters of their options. The tribunal, as might have been expected, found that electoral rights are protected by the Treaty (article 3 in particular which talks of the rights and privileges of British subjects) so this was a legitimate matter for the application of Treaty principles. The tribunal then considered the funding provided to date and concluded that more was required, without naming a specific figure.

What makes the report interesting is the debate surrounding the scope of the tribunal inquiry, and the effect of the Privy Council comments from the Broadcasting Assets case of last December (see Review Jan 1994). The Privy Council said that: "[W]hile the obligation of the Crown [to protect taonga] is constant, the protective steps which it is reasonable for the Crown to take change depending on the situation which exists at any particular time. For example, in times of recession the Crown may be regarded as acting reasonably in not becoming involved in heavy expenditure in order to fulfil its obligations although this would not be acceptable at a time when the economy was buoyant." It is this statement which the Crown seized on in submissions to the tribunal, warning it to be cautious when assessing the Crown's funding efforts to date. The argument proved to be a double edged sword. The tribunal independently entered in evidence a recent Prime Ministerial "state of the nation" address discussing the end of the recession, and effectively dismissed that part of counsel's argument. The government obviously disagrees with the tribunal conclusion. It turned down the tribunal recommendation that more money go into the electoral process, citing limited funding and other more urgent priorities.

So is the recession over or not? And what might this mean for claim settlements and the sum currently being debated to go into the "fiscal envelope"? Will that sum be a recessionary one, or one reflecting the coming boom the Prime Minister is talking about?

Maori Land Court and Appellate Court

No cases this month.

Waitangi Tribunal

Maori Electoral Option Report

Wai 413, 10 February 1994, Orr (Presiding Officer), Corban, Sorrenson, Temara, Walker, Young. 46 pp

This was an urgent hearing and report to consider 1) whether funding promoting the "Maori electoral option" (MEO) is adequate, and 2) whether Maori agencies independent of government should undertake the promotion.

For two months from 15 February 1994 Maori electors will decide whether to register on the Maori or General roll. The numbers registering on the Maori roll will affect the number of Maori constituency seats under the MMP system. The claimants, supported by major iwi and Maori organisations, alleged that funding to promote the MEO was inadequate, and that any promotion should be organised through national Maori organisations.

Found: this was an issue to which the Treaty obviously applied. Article 2 guarantees tino rangatiratanga, a term whose meaning is not fully captured by "English constitutional" ideas such as sovereignty, self-determination and self-management, and "a term that is eminently adaptable to time and circumstance". Approached broadly, the Treaty suggests tino rangatiratanga, like kawanatanga, is not unfettered - the two concepts must be reconciled. Maori are entitled to a measure of autonomy, but not full independence outside the nation state. This "qualified autonomy" can include separate parliamentary representation. The right to vote is also a matter coming under article 3 (rights and privileges of British subjects).

Maori were deemed disqualified from voting through property restrictions (Maori land being owned communally) until the Maori Representation Act 1867, which provided for an adult male franchise, free of property qualifications (some years before this was allowed to Pakeha) and established the 4 Maori seats. The secret ballot was not applied to the Maori seats until 1937. From 1967 Maori were allowed to stand in European electorates (and vice versa). The Electoral Amendment Act 1975 briefly provided for the possibility that the number of Maori seats might reflect the numbers on the Maori roll (thus the present Maori option in essence revives the 1975 situation). Maori have come to see the 4 seats as a important symbolically, as a surviving expression of their constitutional position under the Treaty. The 1986 Royal Commission on the Electoral System proposed abolishing the seats under an MMP system, but Maori lobbying in 1993 saw them retained in the Electoral Act of that year, giving rise to the present option.

Recent comments of the Privy Council on the nature of the Treaty relationship (NZ Maori Council v A-G (broadcasting assets) PC 14/93, 13 December 1993) confirm the conclusion that the Crown has an obligation to protect Maori rights to political representation by taking reasonable action in the prevailing circumstances. Whether the provisions of the Electoral Act, which potentially enhance rangatiratanga, might be considered in themselves as a taonga worthy of protection was not argued, but might have been.

The Crown has made efforts in the past to enhance Maori participation in electoral reform by advertising and face to face or "kanohi ki te kanohi" campaigns. Prior to the MEO, $904,341 was spent informing Maori of general reforms, $652,063 has been set aside for the forthcoming MEO exercise (most of this, $431,000, to be spent on mailouts). However, limited regard should be had to past expenditure since its focus was not specifically the MEO. Significant numbers of Maori are still not enroled as electors (potentially up to 60,000). There is evidence of the need, in addition to mailouts, for separate funding for kanohi ki te kanohi and mass media campaigns (particularly television).

While the recent Privy Council judgment suggests that the level of resources provided by the Crown to protect taonga must necessarily be constrained in a recession, this must be set against other comments in that judgment that "especially vigorous action" is needed in some cases. This is such a case, where highly prized rights of a fundamental constitutional importance are involved. As to economic circumstances, the Prime Minister in a recent speech has stated that an economic recovery is underway and that Maori issues are a special focus for government.

The present funding provided is "substantially less" than is required for Maori to effectively exercise the MEO. As a matter of urgency funding should be increased to ensure maximum enrolment of Maori and adequate information on the MEO.

Consultation should be undertaken with representatives of the National Maori Congress, NZ Maori Council and Maori Women's Welfare League to settle the programme and funding required (no specific figure named, but several estimates examined suggested around $1 million would be required, inclusive of mailouts).

Funding levels should be considered against the $47 million spent in this election cycle on maintenance of the electoral rolls. It would be "consistent with tino rangatiratanga', for responsibility for the implementation of any campaign to be vested in the Maori representatives of the 3 pan-Maori organisations.

[ed: this report provides the first detailed consideration of the Privy Council judgment of last December. The statements about rangatiratanga show that that concept still has room to develop. The Government has since announced it is rejecting the tribunal recommendation, citing other spending priorities. This was the first hearing and report for several tribunal members - namely Corban, Temara and Walker].

Chatham Islands claims

Wai 65 and others, 22 February 1994, CJ Durie

At a conference to consider progress with these claims counsel for Nga Iwi o Wharekauri Rekohu advised they were contemplating High Court action regarding jurisdictional issues eg whether the tribunal can depart from historic MLC decisions on customary entitlement, whether the MLC should be the place to decide issues of customary status. The tribunal noted that special jurisdiction for the MLC under s27/1993 could possibly be sought; s30/1993 is not relevant since it refers to finding the appropriate representatives of customary groups, not determining which customary groups are entitled; and voiced its own view that it should proceed with a broad inquiry as this may clarify any jurisdictional questions requiring answer. "An important objective of the Treaty of Waitangi Act 1975 is that long outstanding grievances should have a forum, that the Tribunal should provide a forum, and that a comprehensive report, as appropriate to a commission of inquiry, should provide public awareness of the concerns. It must be borne in mind that the Moriori grievance has been the subject of petitions from last century but, it would appear, the Moriori people have consistently lacked the benefit of an impartial examination of their concerns, unhindered by technicalities." Hearing date set for 9 May 1994, in the Chatham Islands.

[ed: this will be an important hearing, raising questions about the "1840 rule" applied by the Maori Land Court to determine customary ownership]

Other Jurisdictions

Glass Murray v Frank Alexander Geddes

High Court Whangarei M 93/93, Thorp J, 6 December 1993

This was an application by Mr Murray on behalf of Ngati-haua hapu that a caveat over the property of Mr Geddes under the Land Transfer Act 1952 not lapse. Murray claimed to be a beneficiary under a trust, with Mr Geddes as trustee. No details of the trust were given or how it arose. It was claimed that either a trust arises with a hapu whenever an individual member of a hapu takes an individual title in the hapu land (on a subsequent transfer of the land any new owner with knowledge of the trust would be bound by it). Alternatively, a constructive trust had been created with this particular land owner since individualisation with the particular persons in the hapu who had transferred the land to him.

Held: the onus is on the caveator to show an arguable case or a serious question to be tried. The first trust proposed was "revolutionary". There was no authority for it and it was difficult to see how the courts would enforce it. The second trust failed for lack of evidence - none was presented. In addition, inadequate notice had been given to the landowner of the reasons for lodging the caveat (ie general explanations were not adequate).

[ed: this case concerned the disputed land at Whangape claimed by Ngati-haua hapu. It is a good illustration of the difficulties (detailed research; difficult legal argument about trust law) which claimant groups may face if they use this particular avenue to prevent sales of land under claim].

Sea-Tow Ltd & L P Haddon and GR Brown & others v Auckland Regional Council & another

A 129/93, Sheppard J, 14 December 1993

5 applications for coastal permits to extract sand from Mangawhai-Pakiri were recommended for approval by the Minister of Conservation by the Auckland Regional and Northland Regional Councils. The sand would mainly be used in ready-mix concrete for building purposes in the Auckland region. All parties except Haddon and Brown representing Ngatiwai interests had agreed to extraction for a 10 year period, and a full review after a technical study was completed on long term sustainable sand extraction. The study would have supervision from tangata whenua among others; they would also assist in drawing terms of reference for it. The other parties acknowledged that tangata whenua concerns had not been fully met but had been answered as far as was possible under the RMA. Ngatiwai claimed they had never given up ownership of the sands, had mana over them and were kaitiaki of them and had a claim before the Waitangi Tribunal. They sought modifications to the permits in light of those claims.

Recommended: that the Minister should approve the permits with modifications but not those sought by Ngatiwai. Arguments about ownership of resources or past historical grievances are not matters to be addressed under the RMA. Ngatiwai would be actively protected by the safeguards proposed. There is no legal authority to delegate powers to Ngatiwai to manage the resource. The RMA provides ample opportunities for participation by Maori in the planning process. These have been taken up here. The applications should not be deferred pending any Waitangi Tribunal investigation - the duty to take into account the Treaty does not require giving effect to it a if it were a law applying to everyone, therefore it is not necessarily required to delay every application until a Waitangi Tribunal report (it was also unlikely there would be a tribunal report in the near future). Inclusion of a representative on the working party for the sand study recognised the kaitiaki role. Potentially Ngatiwai could be involved in inspections to ensure compliance, if the regional council choose to transfer such functions under s33 RMA. No "Maori share" in the form of royalties or other benefits from sand extraction could be provided for within the RMA, this could be achieved by Ngatiwai themselves obtaining a permit to take sand, or by a political decision to give a royalty.

[ed: once again the limits of the RMA to address deeper issues is made clear. As was apparent from the objections raised, the role of kaitiaki of the resource implies control and responsibilities to the immediate group and the wider community eg "they would also want to explain to sand extractors the history and spirituality of the sand to the tangata whenua as part of their inheritance and way of life". A consultative role, no matter how intense, will always fall short of these sort of aspirations].

Save the Chelsea Playground Committee v Wellington City Council & Te Motukairangi Kohanga Reo

W 10/94, Kenderdine J, 18 February 1994

The Council had granted to the applicants a land use consent to construct a pre-school facility for 25 children on a Council reserve. The appellants raised several grounds including "undue weight" given to Treaty of Waitangi issues in the Council decision.

Held: section 8 of the RMA is a relevant consideration. It was appropriate for the Council to see the proposal as fulfilling an obligation to protect Maori culture and reflecting concern that Maori were the lowest users of Council facilities. The proposal was not promoted by Council "at any cost".

[ed: A largely unexceptional decision apart from the odd nature of some of the objections raised by the appellant committee. For eg noise from the 25 children, effect on painters at the nearby art club and, "the implications of Te Kohanga Reo as providing a focus for the Maori community of Miramar, [being] at odds with those already utilising the current facilities at the site" - namely the local art club and community centre. The tribunal pointed out that the kohanga reo would be open to both Maori and Pakeha children of Miramar and would benefit the wider community].

Ngatiwai Trust Board v Whangarei District Council & Another

A 7/94, Bollard J, 11 February 1994

Ngatiwai Trust Board appealed against approval for a camping ground development including sewage disposal. The appeal raised a waahi tapu issue not referred to in original submissions to the Council which granted the approval. The area was also under a claim before the Waitangi Tribunal

Held: The RMA does not intend that in all cases where Maori reside in the vicinity of a development, or have registered a concern, they must be actively consulted with by a council before a matter is heard (although the council planning officer may be under a duty in suitable circumstances to consult to provide a comprehensive planning report). Long standing cultural issues of which councils are aware are a different matter (Gill 2 NZRMA 605 and Haddon Unrep A77/93 distinguished).

In approaching s8, first the obligations and responsibilities of the Treaty outlined in well know cases of high authority are to be considered to determine if a Treaty matter arises in the exercise of the function, then if such a matter does arise relevant principles are to be taken into account to ensure the intent of the Treaty is maintained as far as practicable having regard to the purpose of the Act under s5.

Subject to general notification requirements (persons directly affected by application to be notified, s93(1)(e)), in this case no duty to consult was required before hearing. Persons objecting also have a responsibility to clearly express their concerns (no mention of waahi tapu in original objections in this case). The Trust Board, despite any reservations it might have had should have raised the waahi tapu issue in formal submissions. This failure had to be regarded in weighing the overall background to the case. Whether or not the camping ground proposal proceeded would not affect the merits of a claim to the Waitangi Tribunal. A requirement that the sewage disposal system be relocated to adjoining land would recognise waahi tapu concerns.

[ed: this case contains thoughtful consideration of the requirements of section 8 and consultation provisions of the RMA. The tribunal noted that it was possible that at the council hearing of the application waahi tapu may have been mentioned by kaumatua. The implication being that this reference was missed, perhaps because there were no interpreters present. It is often the case that sensitive issues or historical points about an area are spoken of in Maori. If essential information is not finding its way into formal submissions, there is perhaps a need to consider strategies to sensitively draw out such matters, either at hearings or in the consultative or planning report phase]

General

Greenprint. Brief to the Incoming Government.

Department of Conservation, November 1993

There are 48 known claims which include land in the conservation estate, with the possibility of others. Two papers are being developed with other departments on policy principles concerning claims to natural resources and those to the conservation estate. Specific issues facing the department include cultural harvest (permits to use protected species); mahinga kai (potential of iwi to manage some food gathering areas). Also the Ngai Tahu claim (tribunal recommendations for the return of conservation areas in Arahua Valley, Waihora (Lake Ellesmere), Crown Titi Islands, part Kaitorete Spit, and a management interest in Whenua Hou (Codfish Island), and assessment of conservation values of Greenstone, Elfin Bay and Routeburn Stations "landbanked" for return). Also conservation lands connected with the Tainui claim, and Takapourewa (Stephens Island) claims.

The "ownership debate" is diverting attention from efforts to develop a "conservation partnership" between the Crown and Maori which recognises Crown conservation responsibilities while acknowledging real grievances. Maori will not necessarily be equal managers but will equally participate in determining "what is an appropriate level of shared management" for particular situations. Notes difference in approaches - Maori ethic is for sustainable management across the entire resource; Pakeha seek protection of some areas (public conservation lands), sustainable management for others.

[ed: the NZ Conservation Authority has delivered a report to the Minister on cultural harvest which should be released shortly]

Native Title and the TransTasman Experience

Deputy Chief Judge A G McHugh, delivered to conference in Sydney 24-25 February 1994

The Australian Native Titles Act 1993 recognises native title as a part of Australian law. NZ courts have yet to provide such a clear recognition that aboriginal title is part of NZ common law. Te Weehi [1986] 1 NZLR 680, and Te Runanganui o Te Ika Whenua Unrep 1993 CA 124/93, come close. The NZ Court of Appeal may lean towards recognition also of a fiduciary duty, where the majority rejected this in Australia. However the Treaty of Waitangi Act and references to the Treaty in NZ statutes has allowed progress with little need for NZ courts to use the aboriginal title doctrine.

Concerning Maori land, "there is a strong case in New Zealand for a return to tribal body corporate ownership of all multiply owned land with some safeguards to protect existing successful trusts and incorporations. The cost of maintaining the separate Maori land recording system is high and its security is also presently suspect as government shows some fiscal reluctance to move into more secure data processing and recording." The NZ government is working on a fiscal envelope for claim settlements. The time is opportune to restructure Maori organisations to cope with the dynamics of change following Treaty settlements. Existing Maori bodies overlap, leading to a waste of resources, particularly leadership. There may be a preponderance of policy making bodies without operational arms; eg Te Puni Kokiri. A Maori Commission may provide an answer.

The Fiscal Envelope

From the same speech

"The NZ government has set itself a target date of 2000 to complete the hearing process and is also working on a fiscal "envelope" or settlement fund which represents the total sum the New Zealand government proposes to apply in settlement of all claims. It is to be gathered and set aside over a period of 10 years and used to make cash payments or buy land from the State Departments or State owned enterprises for settlement of claims. The amount in the envelope is to be a government assessment of what it can or should pay after it has assessed its obligations. It is in no way related to actual loss suffered by Maori."

[ed: as this address suggests, policy on the size and details of the fiscal envelope is well advanced. Discussions have been held with some Maori leaders]

Post Election Briefing for the Minister for the Environment

Ministry for the Environment, November 1993

A government overview policy on Treaty claims would help secure equity and consistency, not only between claims but also for government policy reflected in legislation like the RMA. The Ministry is working to advance such an overview policy, but lacks resources to give time to all specific claim issues, or assist in developing resource management options leading to durable settlements. The Ministry is examining the "exchange of rights" inherent in the Treaty to work towards solutions meeting environment objectives of government and Maori, recognising that Maori are not only guardians of certain resources but potential developers also.

The Year Ahead

The new year is a time for reflection and consideration of what lies ahead. This issue contains statements of intent from various quarters for the coming months.

The Speech from the Throne promised in this Parliamentary term bills to modernise the laws relating to Maori trust boards and reserved lands, but otherwise it would be "steady as she goes".

The holiday period was more interesting. Pre-Christmas, Chairperson Chief Judge Durie published a full "state of the Waitangi Tribunal", referring repeatedly to funding constraints. The Minister of Justice in early January promised more funding for the claims process, from within the Justice vote, and a publicity campaign on Treaty grievances conducted personally through the pages of the Dominion (shouldn't a professionally organised PR campaign be a priority?). But with 2 new prisons to build and now night courts, will Justice find the money? And who gets it and in what proportions; the tribunal, or the Treaty Policy Unit, government's negotiating arm? In this regard the Justice Department briefing papers were revealing for the emphasis they put on negotiations, and little mention of the tribunal's funding concerns (this from the Department which services the Waitangi Tribunal). Te Puni Kokiri asked its Minister to consider whether direct negotiation is really a fast track to claim settlements, and pondered the difficulties and durability of "global settlements" (ie Sealords) and "fiscal envelopes". Professor Alan Ward (Evening Post 20 January) stepped back and puts things in a useful historical perspective. He suggested slowing down, forgetting the year 2000 as a date to settle major claims (a date the tribunal says it can meet) and establishing an accumulative settlement fund. The fund building up for Crown forest settlements is a good illustration of this approach.

Overshadowing all of this is the electoral reform debate (the tribunal heard a claim this week), which makes a change of policy in this whole area extremely likely at the next election. In light of that, academic Mai Chen has suggested multi-party talks. Certainly the present party based approach means that the Treaty of Waitangi Cabinet Committee has a very homogeneous look (see page 9) and maybe could do with some assistance?

Maori Land Court and Appellate Court

New Maori Land Court Judge

Wilson Isaac, a partner from Burnard Bull & Co, Gisborne, was appointed a judge of the Maori Land Court in December. Burnard Bull & Co has an extensive Maori land practice, including among its clients major runanga, trusts and incorporations on the East Coast. The Judge is a committee member of one incorporation. He has also undertaken Family Court work acting mainly for Maori families in custody and access matters. Judge Isaac has roots in Ngati Kahungunu and Tuhoe through his father and Scotland and Ngati Porou through his mother. Aged 40 years, he is married with 3 children, and competes as a triathlete and runner. He will begin working from Rotorua pending his appointment to a district (Tairawhiti (Gisborne court) and Takitimu (Hastings court) have no appointed judge at present).

In re Tokata Roadline and Trustees of Te Rimu Trust

Appeal 1993/15, 33 ACMB 126, Smith, Hingston, Marumaru 7pp

The legislative intent of s416/1953 is clear and unequivocal that roadways laid off before 1953 are not burdened with a right of public use.

In Re part Whangaruru-Whakaturia 4 Block

Appeal 1993/20, 1993 Tai Tokerau ACMB 87, 16 December 1993, McHugh, Smith, Carter, 9pp

In 1989 an elderly Maori man signed a transfer document allegedly gifting land to a woman claiming to be his niece, and her husband. The man died in 1990. For various reasons an application for confirmation of the transfer was not filed in the MLC until May 1992. By this time the immediate family had notified an objection. Further delays followed. In August 1993 the application was finally heard. The family raised several serious grounds against confirmation, including unconscionable bargain and constructive fraud. These were not tested in court (the court had requested attendance of witnesses for examination, but only affidavits were filed). Counsel for the niece and her husband sought an adjournment to prepare further submissions. The court instead noted the allegations made and allowed the family to withdraw the application for confirmation, then dismissed the matter.

Held: the appeal should be allowed on 2 grounds. First, the MLC was wrong to allow one party to withdraw the application. Section 225(1)/1953 (now s151(1)(a)/1993) entitles any party to an instrument of alienation to apply for confirmatio. This and associated MLC Rules recognise the peculiar nature of many Maori land applications, where rights of many persons might be affected. All have rights to be heard, including on questions as to withdrawal of applications. Second, given the serious nature of the allegations made, the refusal of an adjournment was a breach of natural justice; Ani Masefield Pihema and Orakei Marae 1990 ACMB 37 referred to (re natural justice requirements when adjournments sought). A rehearing was ordered. The MAC noted decisions in Re Papatupu 5A2 and Pirikau (1969) 12 Whanganui ACMB 317 and in Re Tikitiki D7B Tibble v Tibble (1983) 30 Gisborne ACMB 310 as to matters to consider in confirmation applications.

Waitangi Tribunal

1993 End of year statement

Te Manutukutuku No 26 December 1993

A succinct statement of the nature of the tribunal and its present approach. Contains some obvious messages for politicians and claimant groups. Concern about inadequate resourcing ($2.5 million annum and over 320 outstanding claims) appears throughout the document, which mentions several times the need for more than the present one full time tribunal member. Under "Resources", the statement questions whether Maori have proper access to the legal process in this area. Other comments made:
- the tribunal could hear all historical claims by the year 2000 (some 30 separate inquiries, hearing groups of claims, are needed to cover more than 320 claims)
- it is "regrettable" that claims about contemporary matters are now rarely considered because of the workload of historical claims
- "The Tribunal does not grant urgency to accommodate illegal occupations and will not intervene on matters that are or could be the subject of court proceedings"
- $400,000 annum is a "very small fund" for researching claims
- there is a need for statutory power to fund "claim managers"
- a strong research unit within the Crown Law Office is essential
- The Maori Land Information Office should be enabled to act directly on tribunal requests rather than just claimant requests
- there has been very little unnecessary duplication of research
- because it is not possible to sever the collection of facts from issues of interpretation the tribunal needs its own expert research staff
- the Rangahau Whanui project (broad historical survey of all historic claims in the country by districts) is needed to avoid inequities of a seriatim approach to hearings which advantages significantly those first heard
- on present evidence, all tribal groups probably have a valid claim of some sort and therefore practical programmes to restore the tribal economic base seems the most practical course - representation issues are a major impediment to claim resolution. The tribunal s preferred approach, judicious use of the Maori Land Court, is canvassed. Queried whether the law should be altered to allow the tribunal to decline to hear tribal claims where tribal support is lacking
- under "Servicing", the constraints of the State Sector Act and Justice Department management programmes on an independent tribunal are noted
- In 1994 the tribunal expects to produce 12 reports including reports on the Taranaki raupatu and Muriwhenua lands groups of claims, also Ngai Tahu ancillary claims, Orotu (Napier Inner Harbour), Chathams, Turangi lands, Wellington Tenths, Otamarakau mining, Tinui forests, Te Arawa geothermal, Ikawhenua power generation, Te Maunga public works [ed: an ambitious programme, already under threat from urgent matters; ie the Maori electoral option hearing this week (reviewed next issue), and a Whanganui river hearing in March].

Re claims by Ngati Awa and Tuwharetoa Te Atua Reretahi ki Kawerau

Wai 46 & 62, 17 December 1993, Durie CJ

Ngati Awa sought a determination of customary rights over areas claimed by Tuwharetoa ki Kawerau. They requested that the tribunal refer these issues by case stated to the Maori Appellate Court under s6A/1975.

The Chairperson declined to refer the matter for the time being, noting that if Ngati Awa contentions as to the extent of their rights were upheld, Tuwharetoa ki Kawerau would fall entirely within their territory and thus have no independent status. On the basis of research before the tribunal: section 6A may itself not accord with customary law in that it fixes narrowly the customary principles applicable, also; Maori Appellate Court and Land Court approaches to customary interests and developed precedent should be questioned. The issue of limitations as to evidence and expert assistance before the Appellate Court as opposed to a more flexible tribunal inquiry needs to be considered. The tribunal has a discretion whether or not to refer a case stated, and may choose not to do so if such a referral is not essential to the tribunal hearing and report on a claim. The real issue may not be the precise customary position, but rather how far customary interests have a place in a contemporary settlement.

[ed: the tribunal is clearly signalling a reluctance to use s6A, fearing the Appellate Court may be too bound by precedent based on challengeable views of customary law. The research referred to may include the PhD thesis of Angela Ballara Origins of Ngati Kahungunu which raises questions about Native Land Court views and distortions of customary law. Also see the note on Bryan Gilling s article below].

Other Jurisdictions

NZ Maori Council and Others v A-G and Others

Judicial Committee of the Privy Council, Appeal no 14/1993, 13 December 1993, Templeton, Mustill, Woolf, Lloyd of Berwick, Eichelbaum. 17pp

Background
The Maori language is "in a state of serious decline . In 1988 the Crown restructured its broadcasting operations. The Broadcasting Act 1989 put in place many features of those changes. It was intended to use the State Owned Enterprises Act 1986 to transfer television assets to a new state enterprise. The appellants alleged the proposed transfer would breach section 9 of the 1986 Act, as an action inconsistent with the principles of the Treaty of Waitangi, without further safeguards first being put in place to protect Maori language in television broadcasting. The High Court deferred consideration of the issue pending the preparation of a scheme of protection. In July 1991 the Crown approved an offer of $13 million for Maori programming over three years, managed by a specialist Maori broadcasting funding agency. The appellants sought amendments which the Crown did not agree to. The High Court considered the scheme and granted a declaration permitting transfer, the appellants appeal of that decision was dismissed. The issue here was whether the transfer of assets could now or in the foreseeable future impair to a material extent the Crown ability to take reasonable action to fulfil its Treaty obligations.

Crown s Treaty obligations
The Maori language is a taonga. The Crown is under a solemn Treaty obligation to protect Maori property. The relationship between the Crown and Maori should be founded on reasonableness, mutual cooperation and trust. In protecting taonga the Crown need not go beyond what is reasonable in the prevailing circumstances". The obligation is constant but the protective steps required may vary eg in an economic recession it may be reasonable not to engage in heavy expenditure. How vulnerable the taonga is, is relevant, especially if vulnerability has arisen from past Crown actions. This would increase Crown responsibility.

Maori language
The failure to achieve any material exposure for Maori language on television has serious implications for continuation of the language. The obligation of protection is shared and Maori are also required to take reasonable action, in particular in the home.

Nature of State Owned Enterprises
The 1986 Act s4(1) requires SOEs as successful businesses to be profitable, good employers and exhibit social responsibility. The first objective, creation of profit, is of no greater importance than the other two objectives. Therefore, if it has the financial resources, an SOE is perfectly entitled to be involved in loss or non-profit making activities. Subject to financial constraints, a state enterprise could run Maori programmes at a loss and still fulfil its statutory objective of being a successful business. In the foreseeable future Maori programming may not be profitable but there is no reason why it cannot be presented in an efficient and businesslike manner. A Crown protective ability remains through s7/1986 (Crown agreements to fund all or part of the cost of non-commercial activities). State enterprises remain creatures of the Crown. Through statements of corporate intent and the like the Crown can exercise a substantial degree of indirect control over the manner in which assets are employed. It is unlikely a state enterprise would seek to frustrate the Crown intent once made clear. The law-making powers of the Crown also remain. The transfer of assets would make control less direct and immediate, but otherwise only lessen the Maori ability to bring pressure to bear on the Crown. Section 9 is not a lever to compel the Crown to take positive action, but operates indirectly, in that it prevents transfers inconsistent with the principles of the Treaty, which in turn may force the Crown to come to arrangements to achieve the transfers it desires.

Effect of a transfer
Section 9 does not require the Crown to establish as a precedent fact that a transfer would not be inconsistent with the principles of the Treaty, the onus is on the appellants to show a transfer is not permitted in the normal manner. The fact that fulfilment of Treaty obligations by the Crown is a policy matter does not limit a court to considering only whether a policy is unreasonable in the Wednesbury sense (if this is what the Court of Appeal was suggesting they were mistaken). It is relevant to read s9 in the light of other legislation (here the Broadcasting Act 1989, already putting much of te restructuring in place). If assets are readily substitutable then it is less likely s9 will apply. The courts should approach these questions with a firm grip on reality as a matter of practical politics if assets are unlikely to be replaced once transferred, replacement in theory is of little significance. In practice the Crown can exert considerable control over state enterprises. Therefore a transfer would have little if any effect on Crown obligations to preserve the language. Ministerial powers of intervention in state enterprise operations should be used sparingly, but, if required, are fully justified in this case given what is at stake. The present statement of corporate intent providing for Maori programming under Social Objectives makes Crown intervention less likely. The Crown assurance that existing offers would be honoured was taken into account and creates a legitimate expectation the Crown will act on its assurance.

[ed: The judgment contains no comments on the constitutional position of the Treaty. The case was argued strictly within the bounds of s9. Previous Privy Council findings that the Treaty is unenforceable until incorporated into NZ law (Hoani Te Heuheu Tukino case) were not challenged.

While acknowledging that SOEs were primarily established to clarify sometimes competing and incompatible social and economic objectives , it was thought they could still voluntarily engage in non-profit activities (of a considerable scale presumably) while receiving only partial or conceivably no reimbursement from the Crown. This interpretation of the successful business objective of SOEs under the 1986 Act might make directors nervous. They may also be nervous about the judgment s emphasis on the Crown ability to intervene in SOE operations to protect an important Maori taonga.

Given that there is an economic recession, that SOEs are intended primarily to be profit making, and that Maori language broadcasting requires considerable capital, have the Judicial Committee, in relying heavily on the Crown ability to indirectly control SOE behaviour, ignored practical politics themselves? Are Maori now able to use s9 to raise issues about the use assets are put to after they have been transferred to SOEs?

A key problem for the appellants was the finding that, in asset transfers, s9 does not require the Crown to directly consider its Treaty obligations to the language, but only whether, after transfer, it could still reasonably protect the Maori language. Their Honours appeared to be impressed with Crown efforts to date, and noted that the assets in contention were already informally being used by the new broadcasting SOE (but on a without prejudice basis surely?). Overall, perhaps not a victory for Maori, but rather a recognition that, once the Crown has decided on a policy, s9 is only of limited use as a lever to compel the Crown to address its broad Treaty obligations.]

Te Runanganui o Te Ika Whenua Inc Society & Another v A-G & Others

CA 124/93, 17 December 1993, Cooke P, Richardson, Casey, Hardie Boys, McKay, 13pp

Under the Energy Companies Act 1992, it was proposed to transfer the undertakings of the Bay of Plenty Electric Power Board and the Rotorua Electricity Authority to energy companies. The principal objective of these companies is to operate as successful businesses. The undertakings included, for the Bay of Plenty Board, the Aniwhenua dam on the Rangitaiki river, and for the Rotorua Authority, the Wheao dam on the Wheao river. The appellants, representing iwi and hapu having interests in these rivers, sought interim relief preventing the transfer on the grounds that the Minister of Energy, in deciding to proceed to approve the transfers, had failed to make adequate inquiry of affected Maori interests, had failed to consult, and to await a substantive report of the Waitangi Tribunal (the Tribunal in an interim report dated 1 April 1993 had recommended the transfer not proceed until a substantive claim to the rivers had been heard). It was also alleged that common law aboriginal title rights had been interfered with under te Electricity Act 1968 in giving consent for and in the construction of the dams.

Held: Interim relief should not be granted. The Crown has only limited powers over electric power boards and authorities, which in general are not agents of the Crown. While an ability exists under the Electric Power Boards Act 1925 to compulsorily purchase electric works, in light of the nature of Maori customary title, Treaty rights and the history of electricity generation in NZ, this is not a realistic prospect.

Aboriginal title, locally Maori customary title , consists of rights over land and water enjoyed by indigenous inhabitants prior to colonisation. If extinguished by less than fair conduct or terms, there is likely to be a breach of a fiduciary duty falling on the colonising power. Free consent may yield sometimes by necessity to compulsory purchase for specific public purposes - but proper compensation would be paid.Even on the most liberal construction, Maori customary title and Treaty rights were never conceived as including a right to generate electricity from water. It was not argued in this case that the dams were taonga. Specific Maori interests are mentioned in debates on the Water-power Act 1903, but there was no recognition of any general customary rights to electricity generation. Consequently Maori interests would not be affected by a transfer to energy companies of the dams and other undertakings. Redress for Maori for other rights which might have been affected cannot realistically lie in modifications to the ownership of the power generating assets serving wider communities - despite a Waitangi Tribunal suggestion to the contrary in its interim report.

There may be valid claims about interference with fishing rights or more fundamentally, control of the river itself. But a practical remedy for such claims would lie before the Tribunal or through negotiations, there being no substantial prospect of relief affecting the ownership of the dams.

Regarding claims about rights to river control, the Maori Affairs Act 1953, s155, is not clear whether the bar on raising customary title against the Crown extends to water. The Waitangi Tribunal in 2 reports (Te Ika Whenua - Energy Assets and Mohaka River reports) has viewed rivers as taonga. This includes the concept that they are not separable into constituent parts of bed, banks, and water. It is odd that, in the Wanganui River litigation (In Re the Bed of the Wanganui River [1962] NZLR 600), it was not argued that this concept survived the passing of the Coal-mines Act Amendment 1903 (vesting beds of navigable rivers in the Crown). This is perhaps because of the emphasis placed in counsel s argument at that time on the river bed and banks rather than the flow of water - perhaps an instance where aboriginal title was rendered into strictly English law concepts, an approach to be guarded against (Privy Council judgment in Amodu Tijani [1921] 2 AC 399 referred to). Similarly, the ad medium filum aquae rule is inconsistent with this concept (Waitangi Tribunal Mohaka River report rejecting that approach for the Mohaka river referred to), and may be unreliable in determining what Maori have agreed to part with .

Concluding comments; the Treaty of Waitangi has been acquiring some permeating influence in New Zealand and Treaty rights and Maori customary rights tend to be partly the same in content .

[ed: this judgment provides the latest and most succinct summary of the application of common law aboriginal title in NZ, placing it firmly alongside the developing Canadian and Australian jurisprudence and confirming the Court of Appeal approach in earlier cases in this area, reading aboriginal title and Treaty rights together. Comments about fiduciary duty perhaps extend that aspect slightly.

In finding that aboriginal rights do not include a right to generate electricity from water the Court did not mention the right to development which has been upheld by the Waitangi Tribunal in relation to fisheries (Muriwhenua Fishing and Ngai Tahu Sea Fisheries reports). But in those reports the Tribunal was concerned with a resource about which there was some knowledge already in 1840. Lack of knowledge at 1840 seems to have been central to the Court decision here (but see the argument in the Waitangi Tribunal Radio Frequencies report, suggesting Maori may still have a Treaty interest in a resource unknown in 1840, but central to cultural survival now).

The judgment contains a strong hint that the Court might, given the opportunity, revisit its precedent setting decision in 1962 that the bed of the Wanganui river was lost by Maori when they sold land along the banks. The Waitangi Tribunal has already rejected the application of that approach to the Mohaka river. It will hear the Wanganui river claim commencing March 1994.]

Huakina Development Trust v The Waikato Regional Council (formerly Waikato Valley Authority)

C4/94, 12 January 1994, Judge Skelton

Remember this? The dairy shed discharge permit which resulted in a ground breaking High Court decision about Maori values and water consents ([1987] 2 NZLR 188). In this judgment the Planning Tribunal cancelled the permit which created all the fuss. The original applicant has sold the farm and the new owners do not require a consent. The decision is however without prejudice to the new owners right to seek a fresh consent under the RMA!

General

Extract from Speech from the Throne

Opening of 44th Parliament, 22 December 1994

My Government will continue to use established processes to address legitimate historic grievances and will continue to deal with disparities in current outcomes for Maori. It will promote Bills to modernise the law relating to Maori trust boards and Maori reserved lands. Obligations under fisheries settlement legislation will also be fulfilled.

Cabinet Committee, Treaty of Waitangi issues

Announced in December: Graham (chair), Falloon, Creech, McKinnon, East, Kidd, Upton, Marshall, Luxton, Cooper, Meurant. Treaty issues spokesperson for the Labour Party: David Caygill

Post-election briefing to the Minister of Maori Affairs

Te Puni Kokiri, November 1993

Wira Gardiner: After nearly a decade of far-reaching reforms in State administration, Te Puni Kokiri finds itself established as a new entity no longer charged with delivering programmes and services to Maori but cast in the role of watching what others do for Maori and offering policy advice. In the absence of a clear statement of what is required, it is vulnerable to what St Paul called being blown about by every wind of doctrine . What the Government sees as the outcomes for Maori urgently needs to be clarified . Other highlights:

- iwi require funding to participate fully in decision making under the Resource Management Act
- the usefulness of generic iwi personality legislation, possibly incorporating elements from the repealed Runanga Iwi Act, is being examined
- Claim settlements should not be regarded as discharging all Treaty obligations by making Maori self sufficient. There may still be obligations under article 3 to achieve equity
- Achieving settlements solely by negotiation can be as lengthy a process as full hearings before the tribunal
- the Treaty claims area is generally poorly resourced
- global settlement of claims may make it harder to achieve durability
- Treaty principles require a case by case approach to settlement negotiations
- the responsibilities for negotiation of settlements should be reviewed.

[ed: the briefing generally reflects the unfortunate role this Ministry has been cast into, able to comment on everything and implement nothing. The resulting impression, that it is continually fault-finding, will not make it any friends. In this respect perhaps it inherits something of the character of its creator].

The Pakeha Constitutional Revolution . Five Perspectives on Maori Rights and Pakeha Duties. By Paul Havemann

(1993) 1 Waikato Law Review (Taumauri) 53

The significance of the changing constitutional rhetoric, benign or malign? Several schools of thought and the views of the major protagonists examined. Prendergast-ians (belief in one law for all Guy Chapman, David Garrett), Tino Rangatiratanga-ists (Maori nationalism Moana Jackson, Annie Mikaere), Marxists (Jane Kelsey), Orthodox Legal Position-ists (Paul McHugh). Havemann finds contradictions in the Prendergast school, and for the rest notes that if there is a movement to a post-assimilationist and ultimately post-colonial society, we cannot afford to forego the political resources that social rights, parliamentary democracy and citizenship offer.

By Whose Custom? The Operation of the Native Land Court in the Chatham Islands

Bryan D Gilling, Victoria University of Wellington Law Review vol 23 No 3 Oct 1993 p45

Examines the (dubious) origins of the 1840 rule, and notes that it was modified in rare instances where it was felt to be too arbitrary in its operation. Investigates its harsh application in the Chathams. Questions the extent to which the government encouraged Taranaki people to remain in the Chathams, so that they would not disturb the uneasy situation on the mainland.

[ed: The Chatham Islands claim is one of the matters the tribunal expects to report on in 1993. Bryan Gilling will be publishing further articles on the Native Land Court in 1994. As to the 1840 rule, see above the tribunal memorandum re Wai 46 and 62].

Expert at Victoria University

Under a scheme to promote discussion on Maori and the law, lawyer Moana Jackson has been appointed a research fellow at Victoria University for 1994, where he will write on legal issues concerning Maori.

Maori Law Review December 1993

Tena Koutou

Welcome to the first issue of the monthly Maori Law Review. The reasons for publishing the review are two-fold.

First, the perennial demand among Maori land law practitioners for a better decisions service. The need is possibly greater now because of the recent introduction of Te Ture Whenua Maori (Maori Land Act) 1993.

Second, the imperative which is emerging for general practitioners to keep abreast of developments in what might be termed "general Maori law". References to Maori concepts and the Treaty of Waitangi now appear in many major statutes and decisions of the general courts. Consequently, practitioners face Maori law problems in a surprising (and growing) number of areas.

Specifically, the review will report on:
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