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Reconciliation and Social Justice Library
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Reconciliation and Social Justice Library |
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In 1997 the Australian Research Council awarded a Collaborative Research Grant
to support this Project to develop recommendations for more effective
interaction between Indigenous and non-Indigenous governance structures. The
central problem that the Project seeks to address is the question of `fit'
between traditional forms of Indigenous land `ownership' and control, and the
non-Indigenous legal system. The focus is on management of land subject to
native title. However, the Project extends to a consideration of Indigenous
structures for asserting and protecting interests on land and waters that are
not subject to native title. Discussion Paper 1 gives a more detailed overview
of the Project.[3]
Other Discussion Papers will cover material on Indigenous land holding
structures in overseas jurisdictions, Indigenous associations and other
governance bodies not administering land, and governance structures off
Indigenous lands and waters.
All members of the Project Team are non-Indigenous. We make no claim to speak
for any Indigenous community but hope that the recommendations we develop will
provide ways of improving the relationship between Indigenous and
non-Indigenous governing bodies when administering native title. The Project's
goal is to help to identify avenues and strategies for effective
self-government by Indigenous peoples.
This Discussion Paper, the sixth published pursuant to the Project, is the
third of four proposed papers reviewing Indigenous land rights jurisprudence in
other common law countries. The first discussion paper reviewed the powers of
Indian Tribes in the United States (outside Alaska)[4]
to manage the environment of their reservations and control access to, protect and manage natural resources on and off those reservations. These powers generally arise from judicial acknowledgment of the historical recognition of the Indians' occupation of their lands as organised Tribes prior to white settlement.[5]
The second paper in this series continued the discussion of the North
American experience by examining the development and treatment by the Canadian
government and courts of Indigenous land and resources rights in Canada.[6]
This Discussion Paper provides an overview of Maori resource management rights
in New Zealand. The fourth and final paper in this series of comparative law
essays will address the applicability of the jurisprudence and governance
structures in the United States, Canada and New Zealand to the development of
Indigenous land rights law in Australia.[7]
This Discussion Paper provides an overview of the legal developments affecting
Maori customary law, Maori land tenure and the consequential effects on
environmental and natural resources management by Maori. While an in depth
survey of the legal history of Maori customary law and the European (Pakeha)[8] settlement of New Zealand is outside the scope
of this Discussion Paper and has been admirably addressed elsewhere,[9] Chapter 2 begins with a brief exploration of
the traditional Maori relationship with the land and considers the historical
context in which that traditional relationship has been acknowledged by the
non-Indigenous settlers of New Zealand. As in the United States[10] and Canada,[11] the
relationship between the European settlers and Indigenous New Zealanders (and
the consequential acknowledgment of Maori rights by Pakeha governments) has
moved in stages from rough equality to denial and assimilation to a recognition
of the special place of Maori culture in New Zealand and limited rights to
self-determination and management of land and resources.
Chapter 3 reviews the operations of the Waitangi Tribunal. In particular, this
chapter focuses on the impact of Waitangi Tribunal reports on the development
of Maori land and resource management rights. Finally, chapter 4 considers the
sources and contemporary scope of Maori powers to manage and use tribal natural
resources.
This chapter provides a historical overview of the development of Indigenous
rights in New Zealand. It begins first with a brief review of the period of
settlement by the Maori up to European contact. It then considers the
development of the relationship between the first peoples of New Zealand and
its European colonisers in three stages: first, the period of early
settlement, which includes recognition of Maori rights in the Treaty of
Waitangi, from 1800 - 1860; second, the period of large scale dispossession of
Maori lands from 1860 - the 1970s; and finally, the present era in which the
courts, legislature, and Waitangi Tribunal have revitalised Maori rights to
use, govern and participate in the management of their traditional lands,
waters, and other resources.
The first settlement of New Zealand is generally believed to have begun about
800AD.[12] These `first discoverers' and
`first colonizers' of New Zealand came from Eastern Polynesia, the West Pacific
region which includes the Society Islands, Cook Islands and the Marquesas.[13] The Polynesian colonization of New Zealand
was the final stage, beginning some 2000 years ago, of the peopling of Western
Pacific islands which probably began close to 4000 years ago.[14]
While there is considerable debate about whether the Polynesians settled New
Zealand accidentally or purposely (ie by crediting their ability to make
two-way voyages to find new islands, and then return again to settle those
lands),[15] there is little doubt that
Polynesian peoples intentionally `set out into the unknown to find new land;
only thus could the plants and animals on which they depended have been
transplanted throughout Polynesia.'[16]
Whether intentional or accidental, the archaeological and anthropological
evidence suggests that New Zealand was peopled over a few centuries between 800
and 1200
AD in a succession of voyages by Polynesians who brought with them their
traditional life style, culture, and social organization.[17] While these Polynesian/Maori settlers had a significant
impact on `the land' of New Zealand, with the introduction of new plant and
animal species (including the introduction of the human predator), it is
equally clear that the land, with its topography, climate, soils, and native
fauna and flora different from that of most of the islands in the Western
Pacific, also shaped Maori lifestyle.[18]
With few or no continuing contacts with their `home islands', what developed on
the north and south islands of New Zealand/Aotearoa (land of the long white
cloud) was a new Maori culture, a distinct variant of Polynesian culture.[19]
As with other Polynesian peoples, the Maori developed a communal culture. The
critical organizational construct of Maori culture was the tribe, `an extended
kinship organization' comprising sub-tribes and extended family groups, which
was further stratified in a population consisting of slaves (prisoners of war),
commoners, and nobles (classes of chiefs).[20]
The most important communal resource for the Maori was the land held by each
tribe. As Ranginui Walker explains, coastal tribes `aspired to incorporate a
stretch of coastline in [their] territorial boundaries, some arable land for
horticulture, and interior forest land for hunting and as a source of timber
and other raw materials. Inland tribes sought to control territories around
lakes and along riverbanks. Land was a tribe's turangawaewae, the
essence of its identity and existence as a tribe.'[21]
At first contact with Europeans there was no concept of Maori identity in the
sense of cultural or national similarity. "Maori" meant usual or normal. Groups
distinguished themselves by their tribal (iwi) affiliations and association
with physical features of the natural environment such as mountain ranges or
rivers.[22] Thus, as Durie explains, Maori
tribal identity `reflected historical, social and geographic
characteristics.'[23] The tribal identity was
and is the iwi. The tribal institutions of whanua (extended family or kin
group), hapu (sub-tribe), hui (meeting of the iwi) and marae (ceremonial
centre) remain key features of contemporary Maori culture.[24] The Maori relationship to the land involves a guardian
(kaitaki) role or obligation to oversee the environmental quality of their
ancestral lands.[25]
Traditionally, Maori land was held by the tribe/sub-tribe[26] rather than by individuals. These areas of land were
quite well defined although there were tracts of disputed land between some
tribal territories . Within each tribe, the principal unit to hold land was the
hapu (family or kin group), while particular families or individuals used parts
of the tribal land.[27] The use rights of the
tribal lands were determined by the authority of the Chief (rangatiratanga).[28] A tribe based its claim to land upon a right
(take) which generally had to be supported by the tribe's occupation of the
land.[29] Take existed in different forms,
depending on how the right to the land had been acquired: by ancestry, by
conquest or by gift.
All Maori land was under the control and care of an associated ancestral
descent group, and by custom could not pass outside the blood descent group;
`land and ancestors were fused'.[30] For all
Maori land , occupation was a pre-condition to entitlement.[31] This customary law continued to regulate title to tribal
land even after British colonization of New Zealand.[32]
When Europeans first arrived in New Zealand, they found a fully established
society, developed over a thousand years, in possession of the islands.
Initially, the `newly discovered' New Zealand territory was administered by the
Colonial authorities in the Australian Colony of New South Wales.[33] As Owens notes, from the late eighteenth
century, the Maori experienced the impacts of successive groups of Europeans,
`all of whom brought different kinds of influences: the explorers, mostly in
the late eighteenth century; the sealers, whalers, and traders from the 1790s
onwards; the missionaries, present from 1814 but effective only from the
mid-1820s; and finally the more permanent settlers who began arriving in
numbers in the late 1830s.'[34]
From the start of contact, both the Colonial Office in London and Europeans on
the ground in New Zealand, including traders, missionaries, and settlers `all
conducted their affairs on the understanding that the Maori held title to their
land.'[35] McHugh notes that the recognition
of Maori title to the land actually worked to the advantage of Colonial
interests, `for it provided a basis for the passage of rights from tribe to
European.'[36] Thus, from the beginning of the
nineteenth century the Maori entered into transactions with European (Pakeha)
settlers with the result that Maori customary land holdings were, over time,
steadily eroded.[37]
From the outset, settlers to the new colony purchased land from the Maori,
while the British Home Office considered how to deal with the New Zealand
frontier. In the early 1830s the British Resident, James Busby, complained of
the difficulties of keeping order as he lacked local authority to enforce the
peace.[38] Busby also faced a threat from the
French. [39] The added impetus of the New
Zealand Company compounded the problem. The New Zealand Company was preparing a
ship to sail for the frontier with settlers who were contracted to their own
system of government.[40] In response, Captain
Hobson was sent to New Zealand, instructed by the British Government to acquire
the sovereignty of New Zealand, which ultimately became acquisition of almost
all Maori lands.[41]
At the instigation of the British Resident, a confederation of thirty-five
hereditary Chiefs or heads of North Island iwi assembled at Waitangi in 1835
and signed or made their mark on the Declaration of Independence of New
Zealand.[42] The hereditary Chiefs' exclusive
sovereign power and authority was asserted. An annual meeting at Waitangi was
declared for the purpose of framing laws for all Maori. It was further declared
to send a copy of the Declaration to King William IV to entreat him to protect
"their infant state" from all threats to its independence.[43] This assertion of sovereignty and independence by the
Chiefs motivated the British to respond with a mechanism to assume governance
of New Zealand.[44]
The British Colonial Office practice in the 1830s was to recognise the
sovereignty of non-Christian societies.[45] To
assert territorial sovereignty over the Maori, principles employed in the
colonisation of North America were applied, requiring the consent of the Maori
Chiefs to any derogation of their sovereignty.[46]
The mechanism by which the British asserted sovereignty over New Zealand was
the Treaty of Waitangi. [47] Article Two of
the Treaty gave the Crown the exclusive right of pre-emption (first right of
purchase of the land). An active period of land purchases by Crown Land
Purchase Officers commenced and continued up until the 1860s. The Crown Land
Purchase Officers were also instructed to regularise land purchases and inquire
into earlier land dealings which settlers had transacted directly with the
Maori.[48] Instructions from Lord Normanby to
Captain Hobson specified that each tribe should be left a sufficient economic
land base for its future.[49]
The Treaty of Waitangi was signed in 1840 by a number of Maori Chiefs and
representatives of the British Crown. The Treaty was prepared in both an
English and Maori version, both being surprisingly brief by contemporary
standards.[50] Not all the Maori chiefs who
signed the Maori version, Te Tiriti O Waitangi, also signed the
English version .[51] The Treaty of Waitangi
presupposed the legal and political capacity of the Chiefs of New Zealand to
enter into a binding agreement that was valid by contemporary international
law.[52] Due to the haste in which it was
drafted and executed, no attention was paid to authorisation of the
signatories, definition of the land over which the Chiefs had authority, or to
the definition of the groups represented by the signatories.[53]
Without (for the moment) descending into the controversy that engulfs the
interpretation of the Treaty, by Article One the Maori signatories ceded
kawanatanga (governance). In return, Article Two reserved to the Maori
signatories te tino rangatiratanga (the highest chieftainship or `full
authority status and prestige with regard to their possessions and
interests).[54]
The ostensible purposes of the Treaty of Waitangi were threefold: to protect
Maori interests; to promote the settlers' interests in acquiring land; and to
secure the Crown's position in New Zealand to the best advantage. However, the
almost immediate effect of the Treaty of Waitangi was to separate Maori from
their land base and culture.[55]
The right of pre-emption in Article Two was intended to validate titles and
protect the Maori from exploitation. The right of pre-emption was waived by
Governor FitzRoy in 1844, allowing for direct sales of land by Maori to Pakeha
settlers, subject to Crown approval.[56] The
next Governor, Grey, resumed the right of pre-emption and undertook an active
Maori land purchase policy. Still the rate of availability of land for sale to
settlers lagged behind demand and the Crown's remedy was the Native
Land Act 1862 and subsequent legislation which largely did away with
customary land titles and freed up Maori land for sale to settlers.[57]
There are semantic differences between the English version and the Maori
version of the Treaty of Waitangi which have caused considerable controversy in
the interpretation of the Treaty and application of Treaty principles.[58] In the English version of Article One, the
reference to the transfer of "all the rights and powers of Sovereignty"
purports to cede more than the terminology of the Maori version which cedes
"kawanatanga", something lesser, interpreted as governance.[59] Kawanatanga, asserts Mason Durie amongst other
commentators, failed to capture the concept of absolute power, while the use of
"Tino Rangatiratanga" in Article Two converted the Maori version into an
acknowledgement of continuing Maori authority.[60] The word "guarantee" in Article Two has been given
particular emphasis by both the Waitangi Tribunal and the Court of Appeal as
denoting that the Crown's obligations are active rather than passive.[61]
Apart from the interpretation of the two versions of the Treaty of Waitangi,
there is the paradoxical situation arising from the validity of the Treaty as
between two sovereign nations. The treaty extinguished the identity of the
Confederation of Chiefs of New Zealand as a sovereign nation, causing the
enforcement of the reciprocal promises to move from the jurisdiction of
international law to domestic public law.[62]
At common law international treaties do not bind the Crown for internal
purposes until incorporated by legislation.[63] Recent attempts to have an express reference to the
Treaty of Waitangi in the New Zealand Bill of Rights did not succeed.
The first case involving the interpretation of the Treaty of Waitangi is found
in R (on the prosecution of CH McIntosh) v Symonds.[64] In this case, McIntosh sought to set aside a Crown grant
of land to Symonds on the basis that his purchase of land from the Maori had
been authorised by a Crown waiver of its right of pre-emption. The Court held
that the waiver was procedurally ineffective. In the process of considering
McIntosh's claim, the High Court of the young country recognised the legal
right of the Maori to their traditional lands. Justice Chapman held the Treaty
of Waitangi did not assert anything new but rather guaranteed native title and
secured the Crown's pre-emptive right. Relying upon early cases decided by the
US Supreme Court,[65] he also held that the
common law principles of aboriginal title, although inferior to those
associated with fee simple tenure, existed as a recognised right of customary
use and possession, inalienable and subject to the exclusive right of the Crown
to extinguish. Justice Chapman found that the legal doctrine of the exclusive
right of the Queen to extinguish native title arose from "our peculiar
relations with the Native race and our obvious duty of protecting them...". [66]
With the Treaty of Waitangi in place and the Crown's right of pre-emption
secured,[67] the power of the exclusive right
to acquire Maori lands was exercised under the aegis of Land Purchase
Officers.[68] Large areas of Maori land,
including much of the South Island, thus passed into European hands.[69]
By the mid 1850s the Maori Chiefs were concerned with the effect of these
increasing land sales on their authority. The Land League or King Movement
arose and gained momentum with the Chiefs using their power of veto (the akiri
system) to prevent the sale of further tribal lands.[70] The resulting conflict over access to land led
inevitably to the Maori Land Wars.[71]
In summary, the early period of colonization of New Zealand by Europeans which
began so promisingly with the European acknowledgment of Maori sovereignty over
their lands, followed by the signing of the Treaty of Waitangi in 1840, ended
in civil war.
As Litchfield notes, there was no single land war or unified rebellion,
rather there was a series of battles with various North Island tribes in
conflict with the New Zealand authorities.[72]
The Land Wars or Maori Rebellion of 1860-65[73] resulted in the confiscation of large tracts of Maori
land.[74] In 1860, the Maori still controlled
21 million acres of land; by the conclusion of the Land Wars, a further 3.25
million acres of land had been confiscated.[75]
In the wake of the Land Wars, the British recognised that New Zealand could not
be effectively governed from London.[76] In
1862 the Colonial Assembly was given power to pass laws over Maori land and the
Native Land Court (later the Maori Land Court), was created by the Native Land
Acts of 1862 and 1865.[77] Maori freehold
title, signified by certification of the Native Land Court, was freely
alienable. The Court had three functions in the period 1865 -1900: to identify
the customary Maori land owners; to convert Maori land rights into a title
recognisable in English law; and, to assist peaceful colonisation.[78] As Maori freehold became available for
purchase, Crown (pre-emptive) purchases were no longer required.[79] Maori freehold title was a tenancy-in-common, as
communal title was not recognised. A ten name only rule limited the number of
ames on a certificate of Maori freehold for Maori land under 5,000 acres.[80] The effect of reconstituting traditional,
communal ownership of Maori land to Maori freehold title was to displace tribal
ownership, fragment legal title to the land, displace the custom of
turangawaewae (that ownership depended on occupation)[81] and, as was the intent in the US during the 50 year
period of allotment (privatization) of Indian tribal lands, to facilitate the
transfer of Indigenous land holdings to non-Indigenous interests.[82]
The legislative diminution of Maori rights was also facilitated by the New
Zealand Courts. Following the Symonds case and Re Lundon and
Whitaker Claims which reconfirmed the doctrine of aboriginal title as part
of New Zealand common law,[83] the next
notable interpretation of the Treaty of Waitangi was the case of Wi
Parata v Bishop of Wellington.[84] In this case the applicants relied on the Treaty of
Waitangi to contest the Crown grant of land to the Bishop without prior
extinguishment of Maori title to the land. The Supreme Court dismissed the
case on the grounds that the applicants had no legal basis, as the Court
doubted that the Maori had the legal capacity to enter into a treaty. The
Treaty of Waitangi was regarded as a legal nullity, and consequently the Maori
had mere permissive rights to occupy the land.[85] This narrow approach, based upon the refusal to
recognise Maori customary law, provided a long standing precedent for Maori
property rights to be unenforceable in courts of law, except for those
customary land rights transformed into Maori freehold by the Maori Land
Court.[86]
Notwithstanding the Privy Council elucidating for the New Zealand Courts the
error of the Wi Parata position in the successful appeal of Wallis v
Solicitor General, the narrow view of the Treaty of Waitangi prevailed.[87] To ensure that there were no more further
challenges by the Maori, sections 84 and 86 of the Native Land Act 1909
were enacted to prohibit proceedings against the Crown to enforce `native
customary title'.[88]
Despite the attempt to codify the Wi Parata position in the Native
Land Act, the case Taminhana Korokai v Solicitor-General held that
although the Treaty was not embodied in a statute and thus non justiciable,
statutes could however recognise customary law and the Native Land
Act 1909 had done just that.[89] Sir
Robert Stout held that for the Crown to claim title to land recognised by
statute, the Crown had to show formal extinguishment, and also that the Native
Land Court had jurisdiction to identify the customary owners.[90]
In 1941 Hoani Te Heu Heu Tukino v Ateo District Maori Land Board
gave the Privy Council another opportunity to apply the presumption of
continuity of property rights.[91] Common law
aboriginal title rights were conceded; however the Privy Council confined the
Court of Appeal decision in that case to the principle of Parliamentary
supremacy, holding that whatever rights existed at common law were subject to
statutory modification.[92] What was
significant in Hoani Te Heu Heu Tukino v Ateo District Maori Land Board
was that the Court of Appeal did not dismiss the Treaty of Waitangi as
irrelevant.[93]
In Re the bed of the Wanganui River, the Maori Land Court heard and
dismissed a 1938 claim for Maori freehold title to the bed of the Wanganui
River.[94] Ultimately, in 1962, the Court of
Appeal held that there was no native title right to the river bed.[95] Another unsuccessful claim was In re an
Application for investigation of Title to the Ninety Mile Beach, which
claimed rights to the foreshore.[96] The case
attempted to assert Maori title to the foreshore, arguing that the Maori Land
Court had jurisdiction over the foreshore and could issue Maori freehold titles
over the foreshore.[97] The claim failed in
the Supreme Court and was appealed to the Court of Appeal.[98] The Court of Appeal held that once the Maori Land Court
had inquired into the title of a coastal location and Maori freehold title to
the foreshore was not granted, customary rights to the foreshore were
extinguished.[99]
In summary, the middle phase of European settlement in New Zealand ushered in
the era of the alienation of the Maori from their traditional lands by
government purchases, by confiscation of land from those involved in the Maori
Wars and by the conversion of commercial lands to Maori freehold enabling the
sale of those lands to non-Maori. By 1896, only 11 million acres of New Zealand
remained in Maori ownership. In less than a century 55.5 million acres of Maori
land had been alienated by one means or another.[100] The erosion of the land base affected both the economic
welfare and social cohesion of the hapu (kin group) and iwi (tribe)
infrastructure.[101] This dispossession
continued in the twentieth century. By 1920, the amount of land under Maori
control was reduced to 4.7 million acres, and by the time of the Treaty of
Waitangi Act 1975, Maori controlled land amounted to only 3 million
acres.[102]
The case law in the century from the 1860s to the 1970s strictly enforced the
view that no native title rights were enforceable without statutory recognition
in municipal law. In response to the failure of Maori claims in respect of land
before the courts, the Maori turned their attention to increased political
activism. Following a heightened period of political protests and an increased
concern with international human rights issues, a new Labour Government enacted
the Treaty of Waitangi Act in 1975.[103]
The Treaty of Waitangi Act 1975 established the Waitangi Tribunal,
consisting of
three members, to hear and inquire into claims by Maori arising from the Treaty
of Waitangi.[104] Originally limited to
claims arising from 1975, the Treaty of Waitangi Act was amended in 1985
to enlarge its jurisdiction to include investigation and reporting on historic
claims back to 1840. The Tribunal has powers to inquire into claims and make
non-binding recommendations to the Government if it is of the opinion that the
claim is supported by the evidence and requires redress by the Crown.
Alternatively, the Waitangi Tribunal may refer the claim to another body or
decline to hear a claim.
Ironically, the Crown expected that the Waitangi Tribunal would not hear many claims, meet very often or be an expensive body to fund.[105] This expectation was turned on its head by a confluence of events starting with the appointment of ETJ Durie as the first Maori judge of the Maori Land Court and consequently Chairperson of the Waitangi Tribunal.[106] Other factors raising the Waitangi Tribunal's profile included the Motunui-Waitara claim, a claim by the Te Ati Awa that the Crown was responsible for pollution of traditional fishing grounds.[107]
Even prior to the enlargement of its jurisdiction, the Waitangi Tribunal, although strictly unable to `investigate' pre 1975 events, did `consider' historical events.[108] The overall effect of the 1985 amendments was to allow investigations back to 1840 resulting in more claims, and more complexity in the investigations. The Waitangi Tribunal membership was expanded, research and administrative staff were increased and authority was given to appoint counsel, both for the Tribunal and claimants.[109]
A further stimulus to the development of the law of native title in New Zealand was the reinvigoration of the common law doctrine of native title by the judiciary in the mid 1980s. In three important cases, the courts reversed the Wi Parata case, acknowledged the continuance of common law native title as part of the law of New Zealand, and declared that the Crown owes a fiduciary duty to the Maori to protect their rights and interests in land and other resources.
A radical departure from the land claims discussed earlier was made in the
fisheries prosecution case Te Weehi v Regional Fisheries Officer.[110] In this case, Te Weehi was charged with
taking undersized shellfish contrary to prevailing fisheries regulations. In
defence, he argued that he had a customary right to harvest the shellfish from
the sea shore. As Dorsett and Godden note, to prevail, Te Weehi's counsel had
to overcome two obstacles: first, provisions of the Maori Affairs Act
1953 prohibited customary claims to land against the Crown; second, long
standing case law prevented exclusive Maori claims to the foreshore. Thus to
succeed, `Te Weehi had to establish a non-territorial, non-exclusive customary
right to take paua.'[111] Justice
Williamson, in a landmark judgment, rejected the restrictive view of Maori
customary title and applied the principle of continuity of private property
rights upon the assertion of sovereignty, citing amongst other decisions the
Canadian cases of Calder v Attorney-General of British Columbia[112] and Guerin v the Queen.[113]
The practical effect in Te Weehi v Regional Fisheries Officer was
to restore R v Symonds, reverse the Wi Parata narrow view of
native title and acknowledge the common law as a source of the native title
right to fish, apart from any statutory recognition of Maori fisheries.[114] The case confirmed a Maori property right
in coastal fisheries and has been interpreted as acknowledging a `legal
pluralism directly into the New Zealand judicial system without the aid of any
ushering statute'.[115] The decision in
Te Weehi's Case did not, however, affect the statutory bar
against the enforcement of native title to land, as fishing rights are not
within the ambit of Part XIV of the Maori Affairs Act 1955 which
prohibited customary claims to land.[116]
In Te Runanganui o Te Ika Whenua Inc Society v Attorney-General,[117] the New Zealand Court of Appeal confirmed
that the common law doctrine of `native title' was part of New Zealand law and
applied to lands as well as fisheries. In this case, the Maori lodged a claim
to a riverbed with the Waitangi Tribunal and sought an interim injunction from
the Court blocking the transfer of ownership of a dam on the Wheao River from
the Bay of Plenty Electrical Board to newly constituted private energy
companies. Seeking to forestall a recommendation by the Minister for Energy
favoring the transfer, the Maori claimed that the transfer would prejudice
existing rights in the river bed based on aboriginal title.
While the Court denied the requested relief, it concluded that aboriginal title
was part of New Zealand law. Citing both the 1847 Symonds case and the
decision of the Australian High Court in Mabo v Queensland in 1992,
President Cooke, on behalf of the Court held that: aboriginal title (or
interchangeably, Maori customary title) includes rights in lands and waters
held by the indigenous tribes of an area up to the time of colonial annexation;
upon annexation/colonisation, the Crown acquires the radical title to the land
burdened by or subject to indigenous rights; and that the scope and nature of
those (generally collective) rights depends upon the uses of those lands in a
particular case.[118]
The year after the decision in Te Weehi's case, the Court of Appeal
handed down another landmark decision in New Zealand Maori Council v
Attorney-General.[119] The Court of
Appeal was unanimous in rejecting the long standing notion of the Treaty of
Waitangi as a nullity.
The interpretation of the Treaty of Waitangi was squarely before the Court
since section 9 of the State Owned Enterprises Act 1986 provided that
nothing in the State Owned Enterprises Act permitted the Crown to act in
a manner inconsistent with the principles of the Treaty of Waitangi. The Crown
contemplated transferring Crown land, amounting to 10 million hectares (37% of
the land surface of New Zealand) to the State Owned Enterprises and the Maori
Council mounted a challenge. The Court accepted the Maori Council's argument
that the Treaty of Waitangi created responsibilities for the Treaty partners.
The Crown was held to be in a position analogous to a fiduciary relationship
and the parties were required to deal with each other in good faith. After
examining the State Owned Enterprises Act, the Court of Appeal found
that there was no provision for the consideration of whether a proposed Crown
asset transfer would be inconsistent with the principles of the Treaty of
Waitangi, and hence any such transfers would be unlawful.
The principles of the Treaty of Waitangi that can be extracted from the case
require the Maori and Government, as Treaty partners, to act towards each other
reasonably and with the utmost good faith.[120] The Treaty relationship gives rise to responsibilities
analogous to fiduciary duties which are not merely passive. The President of
the Court, Sir Robin Cooke stressed that the fiduciary duty included active
protection by the Crown of the Maori in the use of their land and water `to the
fullest extent reasonably practicable'.[121]
Other members of the Court asserted the Crown's obligations to remedy past
breaches.[122] However, it was held that
the principles of the Treaty of Waitangi do not authorise the right of
unreasonable restriction on the elected government in its policy decisions.[123]
As a result of the decision in the New Zealand Maori Council v
Attorney-General the Government entered into negotiations with the New
Zealand Maori Council which lead to the Treaty of Waitangi (State
Enterprises) Act 1988.[124] This
legislation requires that Crown land the subject of recommendations by the
Waitangi Tribunal be acquired or reacquired through the mechanism of the
Public Works Act.
Further changes to the Waitangi Tribunal's method of operation were also introduced by the Treaty of Waitangi (State Enterprises) Act 1988 and the Crown Forests Act 1989. The Treaty of Waitangi (State Enterprises) Act 1988 provided that if the Tribunal found the evidence supported a claim and recommended that Crown land that had been transferred to a State Owned Enterprise be returned to the Maori owners, the Tribunal recommendation would legally bind the Crown.[125] The Crown Forest Act 1989 gave the Tribunal the power to make recommendations on the return of Crown Forest lands, and again the Tribunal recommendations would legally bind the Crown.[126]. To date these provisions are the only binding recommendations that the Waitangi Tribunal can make for the return of Crown land to Maori claimants.[127] It is not uncommon, however, for claimants to request the Tribunal to only make findings of fact and state the relevant principles of the Treaty of Waitangi, and then use the report as a basis for negotiating a settlement with the Crown.[128]
In summary, the modern era of Maori / non-Indigenous relations can be said to begin with the adoption of the Treaty of Waitangi Act in 1975. Originally limited to considering post-1975 claims, the 1985 amendments extending the Waitangi Tribunal's jurisdiction to historical claims dating since 1840 significantly expanded the reach and consideration of Maori claims in New Zealand. Judicial reinvigoration of the doctrine of aboriginal title and the accompanying fiduciary duty of the Crown to protect Maori rights gives further impetus to a rapidly changing relationship.
Additionally, legislative enactments, including the State Owned Enterprises Act 1986 and other laws, acknowledging Maori rights to use, manage, benefit from, and be consulted regarding the uses of resources have expanded aboriginal rights. Throughout this period, the Tribunal's reports and recommendations have played an increasingly important role in redefining the place of the Maori within contemporary New Zealand society. The Tribunal's role is specifically considered in the next section of this Discussion Paper.
As observed earlier, the Waitangi Tribunal became the focus of Maori hopes for
justice and restitution of breaches of the Treaty of Waitangi. A few of the
many reports of claims published by the Tribunal are discussed below to
identify the issues raised, some of the Tribunal's recommendations and most
importantly the interpretation principles of the Treaty of Waitangi as `the
foundation for a developing social contract'.[129] The most important Tribunal reports consider fisheries
and land claims.
The Motunui-Waitara claim protested against the destruction of the Tribe's traditional shellfish gathering ground by an existing sewage outfall and the proposed creation of an additional outfall for industrial waste.[130] It was argued that the Crown had permitted pollution of their traditional resources in breach of the Treaty of Waitangi. The Waitangi Tribunal found that the evidence supported the Tribe's claims to the right to traditional food sources of the hapu (kin group) over sections of the reef, for their own use, for hospitality and for mana (authority).[131]
The Tribunal accepted that traditional values as well as tribal rights were protected by the Treaty of Waitangi. Moreover, the Tribunal declared that those rights and values should be considered in planning decisions made by Crown authorities. The Tribunal condemned the failure of the planners to pay any attention to `the Maori approach to the water as source of food'.[132] The principles of the Treaty of Waitangi were discussed for the first time to the extent of interpreting that the rangatiratanga guaranteed protection of the fisheries. The promise of protection in the Treaty was interpreted to encompass protection from pollution.[133] As the Treaty of Waitangi was a social contract, the Tribunal was of the view that both the Maori and the Crown should be ready to compromise.
Ultimately, the Tribunal recommended that the Motunui outfall not be built and the industrial effluent be discharged elsewhere.[134] The Tribunal recommended that the legislation should be amended to protect Maori fishing grounds and empower the Maori Land Court to declare specific Maori fishing grounds as reserves.[135]
The Muriwhena fisheries claim was prompted initially by plans to create a marine reserve which would have the effect of prohibiting fishing along the North Coast of the North Island.[137] Subsequently the State Owned Enterprises Bill 1986 proposed to remove Crown land from the jurisdiction of the Waitangi Tribunal, by vesting the land in the State Owned Enterprises. Another reason for the claim was the announcement of the Ministry of Fisheries and Agriculture's plans to introduce fishing quotas under a new quota management scheme. To expedite the report, the fishing issues were separated from the rest of the claim and heard on an urgent basis.[138] The Tribunal was not in a position to report on the claim but prepared a memorandum to the Minister of Fisheries in support of the Muriwhena claimants.[139] During the urgent fifth hearing of the claim before the Tribunal, the High Court restrained the issuing of further fishing quota in the Muriwhena district.[140]
This first offshore fisheries claim raised wider issues, as the detailed historical evidence of the commercial fisheries related to Maori generally, and was not limited to Muriwhena district. The crucial issue was the introduction of a new system of resource management, the Quota Management System, and its relationship to the Maori fishing rights protected under the Treaty of Waitangi. The Tribunal considered the principles of the Treaty and stated that the principles relevant to the claim were, in particular, the notions of partnership, fiduciary duties and reciprocal obligations.[141] The Tribunal then turned to the question of whether the new system accommodated Maori fishing interests and then considered the scheme as a whole. The Quota Management System was found to be in fundamental conflict with the Treaty's principles and terms.[142]
In stating its specific findings, that inter alia the Crown had omitted to provide any adequate protection for Maori fishing interests, the Tribunal referred to President Cooke's judgment in New Zealand Maori Council v Attorney-General that `...the duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable'.[143] The Tribunal then noted that in its 1985 Manuka Report, it had stated authoritatively that to `omit to provide protection for rights is as much a breach of the Treaty as a positive Act that removes them.'[144]
The Tribunal found that the Crown failed to make any provision for tribal interests in promoting the fishing industry.[145] The Tribunal also addressed the advancement in international human rights law of a general right of development and observed that there was a long list of prejudice to the Maori claimants including the loss of control of the exploitation, management, and conservation of their fish resources.[146] As one New Zealand commentator notes, despite the lack of any reference to modern developments in the international law of indigenous rights, "the New Zealand courts have adopted the approach of the Waitangi Tribunal...and applied it to the definition of Maori rights...", thus extending both the substantive reach of Maori rights to resources as well as the permissable methodas for acquiring those resources.[147]
The Tribunal determined that the Government's Quota Management System, in its existing form, was in conflict with the Treaty as it apportioned `to non-Maori the full, exclusive and undisturbed possession of the property in fishing that to Maori was guaranteed; but the Quota Management System need not be in conflict with the Treaty, and may be beneficial to both parties, if an agreement or arrangement can be reached.'[148] The claimants requested that the Tribunal defer making any recommendations other than that the Crown meet the costs of the Maori in the negotiations to come.[149] The negotiations that followed led to the interim Maori Fisheries Act 1989 and the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.[150]
The Orakei claim was made on behalf of the Ngati Whatua who sought redress
for Crown actions, since 1840, which deprived the tribe of their traditional
lands in the vicinity of Auckland.[152] The claim area had been the subject of
protests, the
occupation of Boston Point and conviction of the protestors.[153]
The Tribunal considered the interpretation and principles of the Treaty of Waitangi, including the principles as determined by the Court of Appeal in New Zealand Maori Council v Attorney-General.[154] The Treaty principles relevant to the Ngati Whatua claim included obligations on the part of the Crown to leave the Maori sufficient land for economic and cultural purposes, the recognition of the right to manage and control their land according to their cultural preferences and to refrain from purchasing land the Maori wished to retain.[155] The Tribunal findings were that the Crown had failed in its duty by allowing the Native Land Court and other bodies to contrive to facilitate Maori land sales, which were inconsistent with the Treaty.[156] Furthermore, and with far reaching consequences, the Tribunal found that the Crown's right to govern in the public interest is restricted by its Treaty obligations.[157]
The Tribunal recommendations included providing land for a sufficient economic base, and other actions to restore the Ngati Whatua to their mana (authority/prestige).[158] Specific recommendations involved restoring some Housing Trust land to the Tribe, vesting public park land in the tribe and providing for a joint administration of the parks by the Ngati Whatua of the Orakei Maori Trust Board and the Auckland City Council.[159]
The Ngai Tahu, of the South Island, had long standing grievances for the loss of their traditional lands. Their claim was complicated by a counterclaim by other tribes.[161] The Ngai Tahu had sold land to the Crown under the Kaikona and Arahura Deeds of Purchase of 1859.
The claims covered land, fisheries and mahinga kai (traditional food source) losses arising from the Crown purchases. In reporting on nine specific aspects of the land claim, the Tribunal drew upon the Treaty principles it had interpreted in the earlier Orakei and Muriwhena reports. The Tribunal again found that the Crown had an obligation at the time of the Ngai Tahu land purchases to ensure the Ngai Tahu had a sufficient land base with which to meet their needs.[162] The Tribunal determined that neither the unequal bargaining position of the parties nor the Crown's obligations to protect Maori interests in land had been taken to account sufficiently during the various purchases.[163]
As in the Muriwhena Report, the Tribunal was requested not to make specific recommendations as the parties had requested that the issues be left open for further negotiations.[164]
The Taranaki Report was released as an interim report on twenty-one claims in the Taranaki district. The claims arose from grievances in respect of land confiscations which followed the 1860 Land Wars and subsequent expropriations.[166]Without coming to any final conclusions or recommendations, the Tribunal issued its interim report as an aid to the negotiation process. In late September, 1999, the New Zealand government and two northern Taranaki tribes signed an agreement worth NZ$29 million to settle their claims. The agreement, subject to tribal member ratification, will provide for an apology for the confiscation of land, access to traditional food gathering areas, and mandatory consultation by government with Maori over the use of conservation areas.[167]
The Tribunal did identify two foundations for the claim, the loss of traditional tribal lands and loss of autonomy.[168]Amongst the Tribunal's considerations was the applicability of the general principle, first stated in the Orakei Report, that claimants should be restored to an economic land base which recognises their tribal authority.[169]
In summary, the Waitangi Tribunal findings and recommendations, even though not totally acted upon, have progressed Maori claims considerably in the last decade.[170] The parties have come to the negotiating table over specified grievances and have had the benefit of the support of various Tribunal's reports on the individual claims and Treaty principles. Many of the Tribunal's recommendations have been implemented, although there is criticism of the number of recommendations that remain outstanding.[171]
The Waitangi Tribunal interpretation of the principles of the Treaty of Waitangi have been referred to by the courts and have the potential to influence government attitudes and policy.[172] The Tribunal Chairperson has identified issues which require greater clarity in the future claim resolution processes: entitlement to lands and other resources, representation on management boards, comparative equities in service provision, Maori input into and limitations on their abilities to affect resource decision making.[173] There is still much work ahead for the Tribunal, since by March 1997, there were 633 outstanding claims.[174]
The sources of Maori authority to govern, manage and use tribal lands, forests, waters and taonga (treasured things) arguably have as their foundation the common law doctrine of aboriginal title, the Treaty of Waitangi, the equitable fiduciary duties which arise from the Treaty of Waitangi (and the common law), and references to the Treaty of Waitangi/Maori rights in New Zealand statutes. This chapter first considers the sources of Maori rights and then turns to the practical resource management powers that flow from those sources.
Paul McHugh has identified what he considers the important `Treaty rights' as
encountered by the common law: firstly, property rights, especially those
associated with tribal land and maritime areas; second, rights of
self-regulation according to Maori customary law (te tino rangatiratanga);
third, the Crown's duties under the Treaty of Waitangi, especially the duty of
protection of common law aboriginal rights; and fourth, Maori obligations as
well as their rights and privileges as British subjects.[175]
With the Symonds case in 1847, New Zealand became the second common law jurisdiction, following the US, to judicially acknowledge the continuing native title rights of its Indigenous tribes. Rejected or ignored from the 1880s through most of the twentieth century, the reinvigoration of the common law doctrine of native title which began in Te Weehi's case (as applied to customary fishing rights)[176] and which was confirmed as applying to both land and waters in the Te Runanganui case, reaffirms the role of common law aboriginal title in New Zealand. As to the extinguishment of aboriginal title, Justice Williamson in Te Weehi expressly adopted the North American model and held that any extinguishment of Maori customary title required specific legislation that had a clear and plain intention to extinguish.[177] The distinction between extinguishment and regulation of aboriginal title had not been considered by the New Zealand courts until Te Runaga O Muriwhena v Attorney-General .[178] In that case, President Cooke , speaking for the Court, referred to R v Agawa, a Canadian authority on licensing regulations and the need to balance the interests and values involved in the rights of others.[179]
It remains to be seen whether the New Zealand Courts will follow the Canadian test for regulation of aboriginal rights as determined by the Supreme Court of Canada in R v Sparrow. [180]
The Treaty of Waitangi, as a treaty and a potential source of power to govern, remains subject to the `Huakina Principle': that is, it requires recognition in a domestic statute before it can be enforced in municipal law. The necessity for the domestic enforcablity of the Treaty has given way to the judicial interpretation of the spirit of the Treaty, aided by the reports of the Waitangi Tribunal and its non-binding interpretation of the principles of the Treaty.
The express reference to the "Principles of the Treaty of Waitangi" in section 9 of the State Owned Enterprises Act 1986 has proven to be an indirect but effective source of Maori power over natural resources in possession of the Crown. In New Zealand Maori Council v Attorney-General, the Court of Appeal interpreted those principles of the Treaty of Waitangi that were relevant to the Government's legislation providing for transfer of Crown lands, some of which were subject to Waitangi Tribunal claims, to state owned enterprises.[181]Although the Crown had protected land claims lodged with the Waitangi Tribunal before December 18,1986, the State Owned Enterprises Act 1986 did not protect Crown land subject to Maori claims after that date.
In this landmark judgment the court determined that the proposed land transfers were inconsistent with Treaty principles and consequently that the Act was unlawful. In interpreting section 9, the Court of Appeal, unanimously, but in separate judgments, found that the principles of the Treaty of Waitangi created a partnership, and that the Crown's role in the partnership was not passive but active in its protection of Maori land.[182] The Court of Appeal's recognition of the Crown's fiduciary-like obligations was a catalyst for the further negotiations between the parties which resulted in the inclusion of the "claw-back" mechanism in the Treaty of Waitangi (State Enterprises) Act 1988.[183]
The Government plan to transfer mines to Coalcorp, a state owned enterprise, was challenged by the Tainui, as the land and minerals in question were subject to their claim before the Waitangi Tribunal.[184] However, the Crown proposed to sell the coal rights and not the land, as the Crown's view was that mining rights were not subject to the State Owned Enterprises Act 1986.[185]
The Court of Appeal held unanimously, in Tanui Maori Trust Board v Attorney- General, that coal rights were interests in land, that the Tainui had an interest in coal mining in the land which had been confiscated and which formed part of their claim before the Waitangi Tribunal.[186] It was significant that the claw-back provisions of the Treaty of Waitangi (State Enterprises) Act 1988 were not yet in place.[187] The Court of Appeal did not decide the issue of ownership of the coal or the land. Ultimately, it was held the Crown assets were not to be transferred until claw-back mechanisms were operative.[188] This result would allow any Tainui land transferred to Coalcorp to be returned to the Tainui if they were successful with their claim before the Waitangi Tribunal.[189] President Cooke at 529 acknowledged there was evidence that coal was a taonga (treasured thing) and advocated a negotiated solution to the matter.
The judgment of the Court of Appeal in the seminal New Zealand Maori Council v Attorney-General case affected the Crown's intended sale of Crown forests to Forestcorp.[190] In 1988 the Crown proposed an alternative scheme to sell the timber and milling rights as opposed to the land which was encumbered by the claw-back provisions of the Treaty of Waitangi (State Enterprises) Act 1988.[191]
To protect their interests the Maori Council exercised the option of returning to the Court of Appeal to utilise the leave reserved in the orders handed down in New Zealand Maori Council v Attorney-General and seek protection of their Treaty rights under section 9 of the State Owned Enterprises Act 1986.[192] The parties entered into negotiations, as ordered by the Court of Appeal.[193] The resulting Crown/Maori Agreement 1989 did not resolve any claims, leaving that issue to the Waitangi Tribunal, but did agree to the Crown sale of the trees, with the land to be put in trust to protect Maori claims.[194]
The terms of the Crown/Maori Agreement are embodied in the Crown Forest Assets Act 1989.[195] This legislation provided for the establishment in 1990 of the Crown Forest Rental Trust, with both Crown and Maori trustees, to collect rental proceeds from forestry licences and hold the proceeds on trust until ownership of the land is confirmed.[196]
A number of resource and planning statutes expressly or indirectly recognise Maori interests to a lesser extent than the overriding section 9 of the State Owned Enterprises Act 1986, which provides that `[n]othing in this Act permits the Crown to act in a manner inconsistent with the Principles of the Treaty of Waitangi'.[197] It is this recognition of the Maori dimension, as well as the application of the Treaty principles, that can be used to influence Government policy or action.[198] To examine the ability of each statute to effect the governance, management and use of natural resources is outside the scope of this Discussion Paper.[199] Instead, the Maori dimension for participation in the management of commercial and non-commercial traditional fisheries will be reviewed as will provisions of the Resource Management Act 1991.[200]
The history and extent of Maori customary fishing is well documented by the Waitangi Tribunal.[201] At the time the Maori were guaranteed exclusive use and possession of their fishery by Article Two of the Treaty of Waitangi, the non-Maori settlers' interest in fishing was recreational and personal.[202] In 1866 the first fisheries law was enacted. The Oyster Fisheries Act 1866 was intended to save the oyster fishery from depletion.[203] The assumptions in the Oyster Fisheries Act 1866 were seen by the Waitangi Tribunal to have been perpetuated over the century: the assumption of the unrestricted right of the Crown to the foreshore;[204] the assumption that no regard to the Treaty of Waitangi was required; the assumption of no commercial use of the fisheries by the Maori; the assumption that even reserves for Maori fisheries were to be regulated by the Crown; and the creation of a regime where non-Maori interests in the fisheries could be licensed for commercial use and Maori interests provided for by non-commercial reserves.[205]
Crown regulation of freshwater, coastal and offshore fishing did not recognise Maori rights to participate in the control and management of their fisheries.[206] Historic fishing rights saving provisions, most currently as enshrined in section 88(2) of the Fisheries Act 1983,[207] were not supported by the courts until the decision in Te Weehi v Regional Fisheries Officer.[208] By recognising an aboriginal right to fish and interpreting section 88(2) as protecting customary fishing rights, the Te Weehi case was instrumental in empowering the Maori negotiations with the Government on Maori fisheries claims.[209]
The outcome of the negotiations was the Maori Fisheries Act 1989. Section 74 of the Maori Fisheries Act 1989 provides for the establishment of customary fishing reserves in a Taiapure-local model.[210] The aim of the Taiapure is to allow greater Maori participation in management and consultation of the non-commercial fishery.[211]
The next legislative attempt to resolve Maori fisheries claims and the decline in the fishery resource was the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.[212] This legislation provided for a Maori share of the resource, the repeal of section 88(2) of the Fisheries Act 1983 and for Maori to play a role in the regulation of Maori customary non-commercial fisheries. This aspect of the governance of non-commercial fisheries will be discussed below in the section on Practical Resource Management Powers.
As noted, the New Zealand Government did not historically recognise the Maori traditional commercial fisheries and continued in this manneruntil 1986 when the Government embraced a radical change in conservation of the declining fisheries in the guise of a Quota Management System.[213] The Crown assumption of ownership and control in the Fisheries Amendment Act 1986 put the Quota Management System in place. Maori litigants succeeded in enjoining the distribution of commercial fishery quotas under the new Quota Management System.[214] In each case, the Memorandum preliminary to the Muriwhena Report, released by the Tribunal on an urgent basis on September 30, 1987, was referred to in support of the Maori applicants.[215] In both the New Zealand Maori Council and Ngai Tahu Maori Trust Board cases,[216] Justice Greig took note of the historical Maori fisheries over the whole coast of New Zealand and found there was no statute that had extinguished the customary right. Section 88(2) of the Fisheries Act 1983 was pivotal in the ratio of each case, as the Quota Management System was found to be contrary to section 88(2) in that it affected Maori fishing rights.
This interpretation of section 88(2) of the Fisheries Act 1983 has been instrumental in bringing about a negotiated settlement of the Maori commercial fisheries claim. Still wishing to retain the Quota Management System but also recognising Maori interests, the Government commissioned working parties to report on `How Maori Fisheries may be given effect'.[217] The result was the Maori Fisheries Bill 1988 which provided for Maori to earn up to 50% of the quotas over 20 years.[218] The sting in the tail was the proposed clauses repealing section 88(2), cancelling the injunction orders of Justice Greig and curtailing the jurisdiction of the Waitangi Tribunal for 20 years.[219] The Maori responded with more legal proceedings to protect their rights to the commercial fishery.[220] It was during this litigation that the opportunity for the purchase of 25% of the quotas arose, by means of the purchase of Sealord Fisheries Ltd.
There has been much criticism of the process by which agreement was reached in what has become known as the `Sealord Deal': failure to get a Maori consensus; that the agreement was pan-Maori and not with iwi (tribes); the extinguishment of the Treaty right to the fisheries; repeal of section 88(2), and the unanswered questions of the allocation of the newly acquired resource and profit distribution.[221]On the positive side of the ledger, the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 provided for a share in the national resource, the administration of the Maori quota by the Treaty of Waitangi Fisheries Commission and for Maori management and advisory positions in the fisheries resource agencies. These developments are discussed below in the section on Practical Resource Management Powers.
The background to the Resource Management Act 1991 was the Government's comprehensive resource management review project which absorbed an earlier review of coastal management law.[222] Early in the review project, the Government decided upon an active role in regard to Maori interests in resource management, and that the new legislation should provide for iwi participation and for the protection of Maori cultural and spiritual values. All of this arose from Government recognition that resource management law should take account of the Treaty of Waitangi.[223] This new Maori dimension to administration related more to the te tino rangatiratanga ( full sovereignty) aspect of the Treaty rather than the property guarantees.[224]
The Resource Management Act 1991 brought together for the first time New Zealand laws governing land, air and water resources with a new decentralised approach to environmental management. This new approach owed much of its spirit to environmental concerns raised in various claims before the Waitangi Tribunal throughout the 1980s.[225] The Ministry of the Environment published guidance on the consultation requirements to clarify for the Maori, planners and local councils that Maori concerns were to be taken into account, and identified at least 30 provisions of the Act where Maori concerns were relevant.[226]
A clear purpose of the Resource Management Act 1991, as expressed in the long title, is to ensure that in the management of natural and physical resources, full and balanced account is taken of "(iii) The principles of the Treaty of Waitang". Indicative of the new approach is the use of many Maori words and phrases in the Act.[227] Mason Durie identifies several inferences from the incorporation of Maori terms: first, Maori customary law is now part of several statutes; second, those who interpret the law will require an understanding of Maori customary law; third, there is an inherent difficulty in translating Maori terms into English without recourse to a wider spiritual context; and finally, there is the risk of diminishing the meaning of the Maori words.[228]
Maori interests are expressly acknowledged in sections 6(e), 7(a), and 8. The wording in section 8 require the principles of the Treaty of Waitangi to be taken into account in the performance of functions.[229] Section 7(a) requires all persons exercising powers and functions under the Act to recognise, amongst other matters of importance, the concept of kaitiakitanga (guardianship/stewardship) and the ethic of stewardship.[230] Under the new decentralised management model, local and regional councils must develop policies and plans in accordance with the principles of the national policy.
No specific powers over resources are granted to the Maori under the Resource Management Act 1991; rather as constituents of the public in a given area, the Maori benefit from the detailed procedures for public participation set out in the First Schedule of the Act.[231] Maori and non-Maori alike may apply to the Planning Tribunal for a declaration or an enforcement order to enforce statutory obligations.[232]
Interpretation of the section 8 requirement that authorities take into account the principles of the Treaty of Waitangi by consulting with the tangata whenua (people of a given place) has varied.[233] The approach to consultation expected by the Environment Court has been clarified in Otaraua Hapu of Te Atiawa v Taranaki Regional Council and Petrocorp Ltd .[234] A distinction has been made between consultation and notification of district and regional plans, and the decision as to whether to notify a resource consent application and notified applications where the Council will be acting in a quasi-judicial body.[235] The right of the Maori to be consulted and submit policy documents for consideration by district and regional Councils is augmented by provision for iwi (tribal) management plans.[236] The plans are given statutory recognition and can be submitted to local authorities who are required by the Resource Management Act 1991 to take the management plans into account.[237] The failure to involve Maori in the decision-making of resource consents has been criticised as missing an opportunity for recognition of Maori rangatiratanga (sovereignty).[238]
The 1980s and 1990s have encompassed an era in which litigation to protect
and
recognise Maori interests, major Government policy changes, and large scale law
reform have all contributed to a redistribution of Maori and non-Indigenous
resource management powers. These events have affected the management and
conservation of New Zealand resources with regard to recognition of Maori
interests and Maori participation.[239] This section of the Discussion Paper reviews
developments in relation to the management of commercial and non-commercial
fisheries, the management of lands returned in negotiated settlements, and
practical resource management powers offered to the Maori under the Resource
Management Act.
The controversial Deed of Settlement which foreshadowed the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 was reviewed by the Waitangi Tribunal and found to be inconsistent with the principles of the Treaty of Waitangi.[240] The terms of the Deed included Crown financial support for the joint venture purchase of Sealord Fisheries Ltd and an additional 20% of new species quotas, bringing Maori ownership of quotas to 30%.[241] The Sealord Deal returned to the Maori substantial ownership of the New Zealand commercial fisheries subject to government regulation of the fishery resource.
Aside from the highly politicised issues of consensual extinguishment of the Treaty right to their fisheries, barring litigation and the repeal of section 88(2) of the Fisheries Act 1983, the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 provides tangible gains for the Maori in the management and control of New Zealand fisheries.[242] The Maori have gained a voice in the national fishing industry. Maori nominated by the Treaty of Waitangi Fisheries Commission Board/ Te Ohu Kai Moana are appointed to two positions on the Fishing Industry Board, which promotes the interests of the industry on a national basis.[243] Maori are also entitled to participate on fisheries advisory boards, namely the Fisheries Advisory Committee, the Fishery Authority and the Conservation Authority and Board.[244] Also, the Treaty of Waitangi Fisheries Commission must be consulted by the Crown whenever the Crown has a statutory obligation to consult with the Fishing Industry Board.[245] Lastly and most significantly, the Maori have management over their commercial fishing interests in Sealord Fisheries Ltd. through the Treaty of Waitangi Fisheries Commission/Te Ohu Kiamoana, a larger Maori role in commercial fisheries management than previously acknowledged in this century.[246]
The Deed of Settlement addressed neither the issues of allocation to coastal tribes and the position of urban and inland Maori nor the nature of the management structure and, as a result of this uncertainty there has been much criticism and ongoing litigation.[247] It is a point of contention that having established a right to the resource, Te Ohu Kiamoana is appointed by the Crown and not directly answerable to the Maori, diminishing the Maori governance and control of their fishery.[248]
To consider the achievements of the Sealord Deal, the Treaty of Waitangi Fisheries Commission/ Te Ohu Kiamoana has involved over 50 iwi in the fishing industry and has been determining how the fish quotas will be allocated, developing management practices, providing scholarships and training and considering aquaculture initiatives and private sector assistance for the Maori commercial fishing right, which has been transformed into a prosperous commercial venture.[249]
Maori have also been given an opportunity for a greater say in the management and conservation of their coastal fisheries with the adoption of the taiapure-local fisheries model established under the Fisheries Amendment Act 1989.[250] Upon establishment of a taiapure, a management committee is appointed upon recommendations from the local Maori community and by-laws can be made for the customary taking of fish and seafood.[251] The powers of the management committee to regulate the fisheries are, however, limited to an advisory role to the Minister.[252] Only two management committees had been established by 1998.[253] The taiapure is a more explicit recognition of customary fishing rights but less effective than the now repealed section 88(2) of the Fisheries Act 1983.
In Te Runanga o Wharekauri Rekohu Inc v Attorney-General the Court of Appeal remarked that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 has some `apparently conflicting provisions about the customary or traditional food gathering, some speaking of regulations to recognise and provide for this, others seeming to say that there will no longer be any legislative or regulatory recognition.'[254]
The Waitangi Tribunal in its review of the Deed Of Settlement called it a `confusing deed' that, while not expressly extinguishing non-commercial fishing rights, effectively abrogated them.[255] The treaty rights were replaced with regulations and policies for non-commercial fisheries, which in the opinion of the Waitangi Tribunal were reviewable by the courts.[256] While it was consistent with Treaty principles to regulate, it was found to be inconsistent to abrogate Treaty rights by rendering them legally unenforceable.[257] The failure of the Crown to provide an administrative review mechanism was regarded as having failed to adequately protect Maori interests.[258] The retention of power by the Crown in regard to regulation of the non-commercial fisheries has created concern that tribal control will be subverted.[259]
In recognition of Maori interests, subsections 10(b)(i) and (ii) of the Treaty of Waitangi (Fisheries Claim) Act 1992 provide that the Minister, `acting in accordance with the principles of the Treaty of Waitangi' shall consult with the tangata whenua (people of a given place) about the Maori non-commercial fishing use and management practices and develop policies which help recognise those practices. The Minister is to recommend the making of regulations to recognise and provide for the customary food gathering. The Maori role is ultimately limited to consultation.[260]
The customary taking of fish or seafood is recognised and authorised by regulation 27 of the Fisheries (Amateur Fishing) Regulations.[261] The taking of seafood is subject to the Director-General's approval and any conditions the Director-General considers necessary. Regulation 27(2) provides for the delegation of the approval to specified Maori or marae committees or to kaitiaki (caretakers/guardians).
Additional potential powers are found in section 89(1) of the Fisheries Act 1983, inserted by section 34 of the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992. The Minister may make regulations for taiapure-local fisheries [262] declare mataitai reserves after consultation with the tangata whenua[263] and empower the appropriate Maori representative to make by-laws restricting the taking of customary fish and seafood.[264] The regulations have not yet been promulgated and the limited ability of the Maori to influence the regulations has been criticised.[265]
The sport fishing of indigenous and acclimatised introduced fish is governed by the Conservation Act 1987. Section 4 provides that `[t]his Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi'. Section 26ZH provides that `[n]othing in this part shall affect any Maori fishing rights'. In the case of Taranaki Fish and Game Council v McRitchie, fishing in a traditional river fishery without a licence was initially upheld where one is fishing with traditional authority.[266] In Ngai Tahu Maori Trust Board v Director-General of Conservation the Court of Appeal held that the Treaty principles as stated in section 4 of the Conservation Act 1987 governed the administration of the Marine Mammals Protection Regulations and required active protection of Maori interests, rejecting a narrow approach to consultation.[267]
Maori non-commercial customary fishing rights are expressly acknowledged in statutes, and the mechanisms for governing customary taking of fish and seafood, and managing taiapure and maitaitai reserves are in place. The form that the various regulations and by-laws take will determine the level of local control over the resource. Yet again, the Maori role is largely consultative.
The return of a portion of tribal lands claimed and a negotiated co-management approach to conservation areas has arisen in various negotiated settlements. The 1994 Government claims policy was accepted by some claimants, who entered into negotiations within the Government's requisite framework.[268] The benefits of the settlements, concluded and under negotiation, included the restitution of a land base for the tribe and compensation. The control and resource management of the tribal lands returned will be subject to the domestic laws of New Zealand unless expressly exempted in the enactment of the settlement deed.[269]
The Tainui land claim, settled in 1995, related to the confiscation of land under the New Zealand Settlements Act 1862.[270] The agreement, enacted as the Waikato Raupata Claims Settlement Act 1995, provided for the return of 15,790 hectares, an apology from the Queen and monetary compensation for a total value of NZ$ 170 million.[271]
Since 1991 the Ngai Tahu and the Crown have attempted to reach a negotiated settlement of the claims over South Island land purchased by the Crown. The Waitangi Tribunal reported on the injustice of the alienation and the failure to reserve a sufficient land base and recommended a negotiated settlement with the Crown.[272] After protracted negotiations the Deed of Settlement, signed in October 1996, included the grant of title over certain properties of conservation interest that were agreed to be leased back to the Crown and also recognised Ngai Tahu rights to pounanu (jade).[273] The settlement acknowledged the Ngai Tahu management of areas of the coastline and reefs, granted title to and use of 32 customary fishing areas, granted title to Mutton Bird (Crown Titi) and Centre Islands, with the former to be managed by the Ngai Tahu as a nature reserve.[274]
A final settlement of the Ngai Tahu claims has not yet been concluded. Mason Durie observes that the settlement process is `indicative of co-management of conservation by government and Maori.'[275] In 1998, as a show of good faith, the Crown enacted the Ngai Tahu (Tutaepatu Lagoon Vesting) Act 1998 . That Act vests the Tutaepatu Lagoon in the Te Runaga o Ngai Tahu and provides for the co-management of the lagoon by Waimakariri District Council and the Ngai Tahu in accordance with the principles set out in Schedule 3 of the Act.[276]
The Whaketohea also entered into settlement negotiations and signed a Deed of Settlement which provides for an apology for confiscating 70,000 hectares of the Opotiki area and NZ$40 million in compensation, less the value of any land transferred.[277] The Crown proposed involving iwi in management of Ohiwa Harbour, iwi representation on the East Coast Conservation Board, access to plants and whalebone, and the right to identify sites of special significance within the Conservation Estate.[278] The settlement terms were not ratified by Whakatohea in the time frame set by the Government and the Deed of Settlement has lapsed.[279]
The practical powers offered to the Maori in the Resource Management Act are limited to the opportunity to become involved in environmental impact assessment and resource management. However the lack of priority accorded to the principles of the Treaty of Waitangi in Part II of the Resource Management Act have proved frustrating to Maori in the consultative process and have been found by the Waitangi Tribunal to be inconsistent with Treaty principles.[280]
The failure to accord Maori concerns proper priority arose in Te Runanga o Taumarere v Northland Regional Council.[281] The Planning Tribunal accepted the Treaty principle of active protection of Maori interests, and granted an interim stay of the planned effluent discharge outlet. However it was made clear that Maori interests were not absolute and community need would prevail if alternatives were untenable.[282]
In effect, the Maori involvement in the planning, environmental assessment
and management process will depend on the commitment of the local
authorities.[283] Section
33 of the Resource Management Act, which allows for councils to transfer
powers to iwi (tribes), has been criticised as a failure of the Act to allow
iwi to manage natural resources. Where power is transferred to iwi, the local
council is ultimately responsible.[284]
The power of the Maori to control development by means of the section 314
objection process and section 319 enforcement orders has recently been
litigated. The test of what is offensive or objectionable has been determined
to be the standard of the community at large.[285] The Court of Appeal overturned an earlier
decision that `the reasonable person, where cultural issues are the focus of
the objection, should be a reasonable member of the Maori community not the
community at large.'[286]
Watercare Services Ltd. v Minhinnick is indicative that the
effectiveness of the protection of Maori interests, ostensibly a purpose of the
Act, will depend on how conscientiously local authorities embrace the spirit
of the Treaty of Waitangi. It appears that until land and other resource
ownership issues have been resolved, the issue of management and control of
natural resources will be problematic and dependent on the goodwill of the
parties.
The last twenty years have witnessed a radical and irreversible change in the
New Zealand Government's acknowledgment of Maori interests. The judiciary's
interpretation of the role of the Treaty of Waitangi and its principles have
invigorated the Crown/Maori relationship. As a consequence, land claims, rights
to participate in the management of traditional fisheries, and other resource
management issues have progressed significantly in the last twenty years.
The judicial acknowledgment of the continuing viability of the common law
doctrine of aboriginal title (and the Treaty of Waitangi), first in relation to
non-territorial fisheries in the Te Weehi case, and second more
generally in respect to traditional lands and waters in the Te
Runanganui case, has been a major catalyst for change in the relationship
of Maori and Pakeha in New Zealand.[287] The principle that pre-existing property
rights, based upon prior occupation, continue until extinguished by a plain and
clear intention of an act of the government is the law in New Zealand,[288]
as it is in the US, Canada, and Australia. The specific gains in relation to
the `ownership' and `management' of lands, waters, fisheries, and other
resources made thus far in individual claims litigation have been supported by
the general elevation of the principles of the Treaty of Waitangi as a fetter
on Parliamentary sovereignty. Moreover, the Court of Appeal has played a major
role in recognising and refining the Treaty of Waitangi partnership, first
enunciated in New Zealand Maori Council v Attorney-General.[289] The
fiduciary-like relationship that arises under common law and which is
acknowledged by the Treaty requires the Crown to actively protect Maori
interests and has been applied in the State Owned Enterprises litigation and
other cases.[290]
A second, related, and perhaps, most important stimulus for legal change is the
creation of the Waitangi Tribunal which, since 1975, has inquired into Treaty
claims and interpreted the Treaty of Waitangi in relation to Maori grievances.
In reporting on the various claims, the Tribunal has provided a useful
analysis, claim by claim, of the concepts of rangatiratanga (full authority,
chieftainship), Kawanatanga (governance) and taongo (treasured things) as well
as the Crown's guarantees to the Maori.[291] The Waitangi Tribunal reports have been
referred to by the courts in the numerous Maori challenges to New Zealand
legislation which have asserted breaches of Treaty principles.
The development of the principles of the Treaty of Waitangi in the case law and
the incorporation of express references to the Treaty in the new and revised
statutes has offered the promise of substantive recognition of Maori
interests.[292] However, the
variety of references to `giving effect to the principles of the Treaty of
Waitangi,'[293] not acting in a
manner `inconsistent with the principles of the Treaty of Waitangi,'[294] and to `the relationship of
the Maori and their culture and their tradition with their ancestral lands,
water, sites, waahi tapu, and other taonga,'[295] is confusing as to the priority to be given
to Maori interests.[296]
Arguably, further judicial interpretation of these provisions is necessary to
refine their intent in a manner compatible with the Treaty of Waitangi and
cement their import in the law of New Zealand.
Negotiated claims settlements have returned some lands to the Maori, as well as
providing economic compensation for the historical loss of those lands, while
the Sealord Deal has provided the Maori with a large share of the New Zealand
commercial fisheries. The Maori have not, however, been significantly involved
in the regulation of the fisheries resource. In non-commercial fisheries, law
reform has offered various iwi an opportunity to consult on and object to
fisheries decisions, manage taiapure, and act as advisers to the Minister in
promulgating regulations, generally under the watchful eye of the Minister.[297] The recognition of the
emerging right to development of indigenous rights by the Waitangi Tribunal in
the context of fisheries has been particularly beneficial for expanding these
rights.[298]
The courts have also had an impact on the articulation of mineral and timber
rights. The Court of Appeal has recognised the Tainui interests in coal and
pounana (jade). In the Coalcorp case it was said in dicta, that the Treaty
partnership did not mean that `every asset or resource in which Maori have a
justifiable claim to share would be divided equally'[299], however, it is clear that the Maori have
rights in the resources of the land. Additionally, while the final contours of
the relationship are yet to be negotiated, it is also now clear that Maori
interests in forest resources will be acknowledged.[300]
Apart from Maori freehold land, Maori reserves and land returned to or
purchased by Maori in negotiated settlements, the Maori have a limited (albeit
increasing) power to manage and conserve their environment. Statutory
recognition of the special relationship of the Maori to their land has not
empowered the Maori to make decisions relating to land use and management, but
has allowed them to participate in the process and be a mandatory decision
making consideration of the Crown.[301] Importantly, Crown policy on negotiated
settlements now expressly includes offers of Maori management or co-management
of specific natural resources and for Maori representation on advisory boards
and tribunals.[302]
In summary, recent judicial recognition of the partnership obligations of the
Treaty of Waitangi has identified both the source of aboriginal rights for the
Maori and the fiduciary-like duty to protect those and other Maori rights and
interests. Moreover, these cases establish that the protection of those rights
and interests is to be active not passive. Earlier precedent identifies the
common law duty to protect the Maori apart from the Treaty principles. [303] While to date the recognition
of the native title rights and interests of the Maori, based on their prior
occupation, has not been translated into a comprehensive recognition of their
customary rights to manage and control all their lands and resources (apart
from lands and resources restored through settlement or by the courts), the
right to consult and participate in management and conservation is an important
step forward. Finally, the continuing work of the Waitangi Tribunal,[304]its reports, and recommendations will have, as has been the
case over the past 25 years, an increasingly important role in refining both
the legal nature of Maori rights and the social relationship of Maori and
Pakeha in New Zealand.
The English Text of the Articles of the Treaty of Waitangi reads:
In consideration thereof her Majesty the Queen of England extends to the
natives of New Zealand Her royal protection and imparts to them all the Rights
and Privileges of British Subjects.
(Note: Texts in English and Maori are found in the Treaty of Waitangi
Act 1975.)[51]
For a discussion on the signing of the Treaty of Waitangi see C Orange
The Treaty of
Waitangi Chapters 3 and 4 Allen and Unwin/Port Nicholson Press 1987.[52]
I Browlie QC Treaties and Indigenous Peoples: The Robb Lectures 1991
11 Clarendon Press
1992.
[53] Id. at 31.
[54] Waitangi Tribunal Finding of the
Waitangi Tribunal on the Manukau Claim (Wai 8) 90 New
Zealand Government Printer 1985.
[55] MH Durie Te Mana, Te Kawanatanga
above nt 22 at 176.
[56] Ibid.
[57] Id at 119. See 121 for discussion of the
role of the Native Land Court that was established by
the Native Land Act 1862.
[58] See generally, MH Durie Te Mana, Te
Kawanatanga above nt 22; Waitangi Tribunal
Muriwhenua Fishing Report (Wai 22) Waitangi Tribunal 1988,
173-88; P Cleave The Sovereignty Game: Power, Knowledge and Reading the
Treaty, Victoria University Press 1989; P Adams Fatal Necessity:
British Intervention in New Zealand 1830-1847 above nt 44; New
Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.
[59] F M Brookfield `The New Zealand
Constitution the Search for Legitimacy' in Kawharu
Waitangi: Maori and Pakeha Perspectives above nt 44 at 4-5. See also
MH Durie Te Mana, Te Kawanatanga above nt 22 at 177.
[60] MH Durie Te Mana, Te Kawanatanga
above nt 22 at 177.[61]
New Zealand Maori Council v Attorney General [1987] NZLR 641 at 664
per President
Cooke. He encapsulated the terms of the Treaty of Waitangi as follows: `In
brief the basic terms of the bargain were that the Queen was to govern and the
Maori to be her subjects; in return their chieftainships and possessions were
to be protected, but the sales of land to the Crown could be negotiated. These
aims partly conflicted. The Treaty has to be seen as an embryo rather than a
fully developed and integrated set of ideas.' See also R Boast `The Treaty of
Waitangi - A Framework for Resource Management Law'(1989) 19 Victoria
University of Wellington Law Review Monograph 1, 7.[62]
Brownlie Treaties and Indigenous Peoples above nt 52 at 9-10.
[63] Confirmed by the Privy Council in Te
Heu Heu Tukino v Ateo District ML Board [1941]
NZLR 590; [1941] AC 308. The Treaty of Waitangi is not enforceable in New
Zealand except
where incorporated by statute. This precedent is known as the Te Heu Heu Tukino
principle.
[64] [1840-1932] NZPCC 387(SC). This case was
a challenge to the legality of a Crown grant
where the land had been a prior acquisition directly from the Maori during the
period
Governor Fitzroy waived the Crown's right of pre-emption. The Court of Appeal
held that the
right of the Crown to extinguish native title must be consistent with legal
principles. Reference
was made to the decisions of the Supreme Court of the United States under Chief
Justice
Marshall demonstrating `principles of the common law as applied and adopted
from the
earliest times by the colonial laws'. Justice Chapman stated at 390 that :
Whatever may be
the opinion of jurists as to the strength or weakness of native title...it
cannot be too solemnly
asserted that it is entitled to be respected, that it cannot be extinguished
(at least in times of
peace) otherwise than by the free consent of the Native occupiers. But for
their protection, and
for the sake of humanity, the Government is bound to maintain, and the Courts
to assert, the
Queen's exclusive right to extinguish it. It follows in solemnly guaranteeing
the Native title,
and in securing what is called the Queen's pre-emptive right, the Treaty of
Waitangi,
confirmed by the Charter of the Colony, does not assert in doctrine or in
practice any thing
new or unsettled.'
[65] Id at 388-90.
[66] Id at 391.
[67] Under the Native Land Ordinances 1846,
land acquired from the Maori was considered Crown waste land and, unless needed
for a public purpose, was distributed to settlers via Crown Grants. S Dorsett
and L Godden A Guide To Overseas Precedents Of Relevance To Native Title
37 Native Title Research Unit/AIATSIS 1998.
[68] McHugh Maori Magna Carta above nt
25 at 79.
[69] Ibid.
[70] Ibid.
[71] Ibid.
[72] M Litchfield `Confiscation of Maori
Land' [1985] Victoria University Wellington Law Review 335, 340.
[73] See generally, H Miller Race Conflict
in New Zealand 1814-1865 19-125 Blackwood & Janet
Paul 1966.
[74] The confiscation of large areas of land
in the North Island extinguished native title under the
New Zealand Settlers Act 1863 and are subject of claims before
the Waitangi Tribunal.
[75] P Haveman `Chronology 3 Indigenous
Rights in the Political Jurisprudence of Australia,
Canada, and New Zealand 22, 28 in P Haveman (ed) Indigenous Peoples
Rights in Australia,
Canada & New Zealand 108-22 Oxford University Press 1999. The land
was confiscated on the basis that its owners were in `rebellion' against the
Crown. Litchfield Confiscation of Maori Land above nt 72 at 335.
[76] McHugh Maori Magna Carta above nt
25 at 80.
[77] Ibid. See generally I H Kawharu
Maori Land Tenure Oxford University Press 1977; E T J
Durie Submission to the Royal Commission on Maori Land Court No.
11, Wellington 1979; J
McGuire `The Status and Functions of the Maori Land Court' (1993) 8 Otago
Law Review 125.
[78] Ibid.
[79] Ibid.
[80] Waitangi Tribunal The Report of the
Orakeia Claim (Wai 9) Waitangi Tribunal 1987, 44-45.
The Tribunal discusses the role of Justice Fenton and s 23 of the Native
Title Act 1865.
[81] McHugh Maori Magna Carta above nt
25 at 80.
[82] Meyers & Landau The US
Experience above nt 5 at 5-6.
[83] See: Re Lundon and Whitaker Claims
(1872) NZCA 41 at 49 in which Justice Chapman
notes, `[t]he Crown is bound both by the common law of England and by its own
solemn
engagements [ie Treaty of Waitangi], to a full recognition of Native
proprietary right.
Whatever the extent of that right by established Native custom appears to be,
the Crown is
bound to accept it.'
[84] (1878) 3 NZ Jur 72. The case concerned
land the Ngati Toa had gifted to the Bishop in 1850
for the purposes of building a church or school. As the school was never built
Wi Parata and
others sought a declaration that the grant of the land was void.
[85] Id at 77-78.
[86] McHugh The Maori Magna Carta
above nt 25 at 114-15. McHugh criticises the decision
with references to the fundamental misconception of the basis of land titles in
the colony. He argues that the basis for the denial of the status of the Treaty
of Waitangi and the denial of common law aboriginal title were erroneous.
[87] McHugh The Maori Magna Carta
above nt 25 at 119-21 discusses the
Privy Council judgment holding that the Tribe's endowment of land to the Bishop
of
Wellington was not an act of state but a fully justiciable act. The response to
the Privy Council judgment was a dramatic and unprecedented critical response
by the judges and the legal community of New Zealand.
[88] McHugh The Maori Magna Carta
above nt 25 at 120-130.
[89] (1912) 32 NZLR 321 at 340.
[90] Id at 341; McHugh The Maori Magna
Carta above nt 25 at 121-122 discusses the case and
the application of the statutory recognition of aboriginal rights as applied by
New Zealand
courts.
[91] [1941] AC 308.
[92] Id at 315.
[93] MH Durie Te Mana Te Kawanatanga
above nt 22 at 315; See generally E Haughney `Maori
Claims to Lakes, River Beds, and the Foreshore' (1966) 2 NZULRev 29.
[94] [1955] NZLR 419.
[95] [1962] NZLR 600. The Court of Appeal
applied the ad medium filum rule to deny the claim to
the river bed.
[96] [1960] NZLR 673. Justice Turner in the
Supreme Court applied the Hoani Te Heu Heu
Tukino principle finding that the Treaty of Waitangi did not give the
Maori any cause of
action, until the Treaty is recognised by statute it is not enforceable in the
courts.
[97] See generally: R Boast `In Re Ninety
Mile Beach Revisited: The Native Land Court and the
Foreshore in New Zealand Legal History' (1993) 23 Victoria University
Wellington Law Review 145 who discusses the historical background of the
case noting that the Native Land Court had previously issued Maori freehold
titles to the foreshore, reviews the legislative appropriation of the foreshore
and historical documentation from the Crown Solicitor's Office, and comments on
the weakness of the Crown's opposition to the issue of Maori freehold titles to
the foreshore.
[98] [1960] NZLR 673; [1963] NZLR 461 (CA).
Justice North at 471-73 approached the question
on the basis that as earlier adjudication of the land blocks adjoining the
foreshore did not
include the foreshore in the title, then Maori customary law title to the
foreshore must be treated as extinguished. Justice Gresson at 474 - 80 upheld
the decision of Justice Turner in the Supreme Court denying the Maori Land
Court jurisdiction over the foreshore. Gresson agreed with the reasons of the
other judges.
[99] Id. at 474-480.
[100] MH Durie Te Mana, Te Kawanatanga
above nt 22 at 120. Durie states at 53 that by 1874 the
Maori were reduced to 14 % of the population of New Zealand. The source of this
statistic is
given as I Poole Te Turi Maori: A New Zealand Population Past, Present and
Projected at 245 Auckland University Press 1991.
[101] Id. at 116.
[102] Haveman Chronology 3 above nt 75 at
37 and 46.
[103] Dorsett & Godden Overseas
Precedents above nt 67 at 44.
[104] See generally E T Durie ` A Judge's
Eye View of the Waitangi Tribunal', a paper presented at a conference on
Indigenous Peoples: Rights, Lands Resources, Autonomy International
Symposium and Trade Show, Vancouver, Canada, March 20-22, 1996.
[105] W H Oliver Claims to the Waitangi
Tribunal at 10 Department of Justice 1991.
[106] Ibid.
[107] Id at 11. The claim boosted the
Tribunal's reputation in the eyes of the increasingly
environmentally conscious public. Oliver notes "The Tribunal's findings on land
ownership
claims, by contrast, were never received by Pakeha with such applause."
[108] Ibid.
[109] Ibid.
[110] [1986] 1 NZLR 682