Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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30 April 1996
Treaty of Waitangi Act 1975 -- Maori Fisheries Act 1989 -- Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 -- Treaty of Waitangi Fisheries Commission -- "pre-settlement assets" -- "post-settlement assets" -- principles for apportionment of assets for the benefit of Maori -- whether Waitangi Tribunal has jurisdiction to inquire into potential proposals by the Commission -- whether "iwi" in the 1992 legislation extends to urban Maori -- judicial review.
Various Maori and other groups, concerned by the apparent intentions of the Treaty of Waitangi Fisheries Commission as to the distribution of assets, sought an inquiry by the Waitangi Tribunal. Others opposed such an inquiry. In judicial review proceedings, the issue was whether the Waitangi Tribunal had jurisdiction to conduct such an inquiry.
Held:
The effect of the deed of settlement of 1992 and of s. 6(7) of the Treaty of Waitangi Act 1975, added in 1992, was to exclude the jurisdiction of the Waitangi Tribunal and to confine consideration of legislation as to Maori commercial fishing to the Treaty of Waitangi Fisheries Commission. Declaration granted that the Tribunal did not have jurisdiction to inquire into the claims in question. Declaration granted, also, that the use of the term "iwi" in the 1992 Act should be interpreted so as to extend to Maori whose tribal affiliations were not established, and that they could be consulted through Urban Maori Authorities.
Lord Cooke Of Thorndon:
These cases concerning Maori fishing allocations come before the Court by way of appeals from part of a judgment delivered as a conference minute by Anderson J. in the Auckland High Court on 30 June 1995 and appeals and cross-appeals from parts of a judgment delivered by Ellis J. in the Wellington High Court on 31 July 1995. The complexity of the proceedings is sufficiently indicated by the length of the heading to the present judgment. It will be convenient to relegate to an appendix details of the appeals and cross-appeals, together with the formal result now reached by the Court in each.
Complex though the underlying problem assuredly is, the issues now before us are broad and we can determine them by quite broad and simple reasoning. We think this desirable.
The proceedings all arise out of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which came into force by a Commencement Order (S.R. 1992/370) on 23 December 1992. That Act largely implemented a deed of settlement made as of 23 September 1992 between parties described respectively as `Her Majesty the Queen in right of New Zealand acting by the Minister of Justice and the Minister of Fisheries ("the Crown") and Maori by the persons who have entered into and executed this Deed of Settlement on behalf of Maori and whose names, addresses, status and representative capacity are set out in the Fourth Schedule'. A most important point to be made at the outset of our present judgment is that the deed was conceived as a pan-Maori settlement of fisheries claims. It was not for the benefit of selected groups of Maori only. In Te Runanga o Wharekaui Rekohu Inc v Attorney-General [1993] 2 NZLR 301, where the recent history leading up to the deed is narrated, this Court declined to interfere with the introduction into the House of Representatives of legislation to give effect to the deed. That would have been an intrusion into the parliamentary sphere. The Court spoke of the deed as a compact of a political kind, adding among other things that whether there was a sufficient `mandate' for legislation to give effect to it was a political question for political judgment. Despite some weaknesses and obscurities in the deed, we ventured to describe it as a responsible and major step forward.
As a result of the deed and the consequent legislation the Maori Fisheries Commission was reconstituted as the Treaty of Waitangi Fisheries Commission, and in addition to the ten per cent of national fishing quota already held (substantially `the pre-settlement assets') the Commission was enabled to acquire a further 26 per cent through a 50 per cent shareholding in Sealord Products Limited, with the right to 20 per cent of all quota for any further species of fish brought within the quota management system; and the Commission holds additional cash resources to the extent of any residue of the $150 million made available principally to enable it to enter into the Sealords project. The added assets are usually referred to as `the post-settlement assets'. The problem has become how both categories of assets are to be applied for the benefit of Maori. Basically it is a problem of apportionment.
By s. 29 of the Maori Fisheries Act 1989 as substituted by the 1992 Act, the reconstituted Commission is to consist of not more than 13 members to be appointed by the Governor-General on the advice of the Minister of Maori Affairs given after consulting the Maori Fisheries Negotiators (of the deed) jointly and such persons who are, in the Minister's opinion, representative of Maori who are or may be beneficiaries of the Commission's assets. This again reflects the pan-Maori nature of the settlement.
The 1992 Act further augmented what the Maori Fisheries Act treats as the additional functions of the Commission by adding the following paragraph to s. 6 of the latter Act:
(e) In relation to the Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992, -
(i) To consider how best to give effect to the resolutions in respect of the Commission's assets, as set out in Schedule 1A to this Act:
(ii) To develop, after full consultation with Maori, proposals for a new Maori Fisheries Act that is consistent with the Deed of Settlement and makes provision for -
(A) The appointment, composition, and powers of any body succeeding the Commission; and
(B) The development of a procedure for identifying the beneficiaries and their interests under the Deed of Settlement, in accordance with the Treaty of Waitangi and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement:
(iii) Within 90 days after the commencement of this paragraph, to propose for consideration by Maori provisions and a process for the Commission's accountability to Maori:
(iv) To report to the Minister on the matters referred to in this paragraph.
Section 9(2) of the Maori Fisheries Act confers various powers on the Commission.
The 1992 Act added the following paragraph:
(1) After giving consideration to the matters referred to in section 6(e)(i) of this Act and reporting to the Minister on those matters under section 6(e)(iv) of this Act, and subject to subsection (4) of this section, to give effect to the scheme (if any) included in the report furnished to the Minister under the said section 6(e)(iv) (being the scheme providing for the distribution of the assets held by the Commission before the Settlement Date defined in the Deed of Settlement and being the assets referred to in clause 4.5.2 of that deed).
The 1992 Act also added a new subs. (4) to s. 9 of the Maori Fisheries Act as follows:
(4) The Minister may, at any time and from time to time, but not later than 30 days after the date of receipt of the Commission's report under subsection (2)(1) of this section, request the Commission to reconsider all or any part of the proposed distribution under that subsection; and the Commission shall reconsider its proposed distribution of assets, amend the proposal, and report further to the Minister accordingly.
Another key provision of the 1992 Act is the addition to s. 6 of the Treaty of Waitangi Act 1975, which defines the jurisdiction of the Waitangi Tribunal to inquire into claims, of the following subsection:
(7) Notwithstanding anything in this Act or any other Act or rule of law, on and from the commencement of this subsection the Tribunal shall not have jurisdiction to inquire or further inquire into, or make any finding or recommendation in respect of, -
(a) Commercial fishing or commercial fisheries (within the meaning of the Fisheries Act 1983); or
(b) The Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992; or
(c) Any enactment, to the extent that it relates to such commercial fishing or commercial fisheries.
Section 6(e) of the Maori Fisheries Act, enacted by the 1992 Act and already quoted, refers to the resolutions in respect of the Crown's assets, as set out in Schedule IA to this Act. The material provisions of that Schedule are as follows:
SCHEDULE 1A RESOLUTIONS ADOPTED AT HUI-A-TAU ON 25 JULY 1992
ALLOCATION
AUTHORITY 1. That the hui endorse the decision made by the Commission to seek legislative authority to further secure the Commission's intention to allocate its assets to iwi. METHOD
2. That MFC examine the alternative methods to allocate, consult with iwi and have prepared discussion material to enable agreement to be reached on the optimum method for allocation.
LEGAL RIGHTS: 50% 3. That MYC ensure that no allocation of the 10% be made before the position of the pursuit of the legal rights of iwi to secure the complete 50 % is secure. . . . MANDATE 8. That this hui affirms the fact that the negotiators represent all the interests of all iwi in the negotiations with and litigation against the Crown.
MAORI FISHERIES COMMISSION
FUTURE 9. That the future of the NYC be subject to further consideration by NFC/iwi and a position paper be circulated to iwi by October 1992.
Section 2(l) of the Fisheries Act 1983 includes the following definition:
`Commercial fishing' means taking fish for sale within New Zealand or New Zealand fisheries waters.
The issues in the case arise because various Maori tribes or groups object to what they perceive or suspect to be the Commission's intention to include in its report to the Minister under ss. 6(e)(iv) and 9(2)(1) of the 1989 Act, as inserted by the 1992 Act, a scheme providing for the distribution of pre-settlement assets based on or much influenced by the principle mana whenua, mana moana: which is to say, authority over the land carries authority over the sea. For example, one model reflecting this principle to a major extent would give a coastal tribe all the Maori quota for the inshore fishery adjacent to its coast and 50 per cent of corresponding deepwater quota, the remaining 50 per cent of the latter being divided among tribes according to population. It is contended that this would unfairly advantage a tribe such as Ngai Tahu, with its very long South Island coastline, and unfairly disadvantage groups or tribes with less shoreline or an inland base, such as Muriwhenua and those making up the Area One Consortium. It is also contended that annual lease rounds have resulted in Ngai Tahu receiving the lion's share of settlement benefits hitherto.
Other objectors include the Urban Maori Authorities, who have espoused the cause of Maori without declared tribal affiliations, and the Te Iwi Moriori Trust Board on behalf of Moriori of Rekohu (the Chatham Islands). By a definition in the deed of settlement, Maori is deemed to include the Moriori people of New Zealand. The people of the Chatham Islands, a small population very largely dependent on the resources of the ocean, appear to have strong grounds to be treated as a special case. So, too, special consideration is obviously required to be given to the position of the numerous urban Maori who have no established connection with a specific tribe (or `iwi'). Some do not know of what iwi they may claim membership by descent; others may have genealogical connections with more than one.
A few figures may illustrate the claims that are being made. It is claimed that the population of Muriwhenua is 18,492, that of Ngai Tahu Rohe 22,269; and that Muriwhenua, although heavily dependent on fisheries, unlike Ngai Tahu has few other resources as well as a large number of unemployed. Sharp discrepancies are alleged in the past lease rounds, and it is said that the application of a mana whenua, mana moana model would give the Muriwhenua tribes an average of $203.92 per capita as compared with $4533.24 for Ngai Tahu. Again, for urban Maori it is said that 70 to 80 per cent of all Maori live outside their tribal areas, that many (probably most) do not know their tribal connections, and that in the 1991 census 154,797 Maori (out of a total of something over 500,000) gave no iwi affiliation.
Because of their apprehensions about the Commission's intentions, various parties lodged claims with the Waitangi Tribunal seeking an inquiry into the Commission's proposals. Other parties such as Ngai Tahu and the Treaty Tribes Coalition resisted any such inquiry. After contested hearings the Tribunal accepted jurisdiction. Judicial review proceedings challenging that decision followed. The Commission and others were the plaintiffs. In his judgment now under appeal Ellis J. held that the proceedings before the Tribunal were premature in that the Commission had not yet formulated a scheme. He said that when it had obtained agreement on a scheme and made its report to the Crown it would be proposing a policy of the Crown which the Tribunal would be empowered to inquire into if requested by a Maori to do so.
We do not question the learned Judge's view that, at least when proposing a policy to the Minister for asset distribution, the Commission will be acting partly on behalf of the Crown. In terms of clause 3.4.3 of the deed of settlement the Commission `will be accountable to Maori as well as to the Crown ... . Were it not for s. 6(7), that would give the Waitangi Tribunal jurisdiction to consider relevant claims under s. 6 of the Treaty of Waitangi Act.
But, respectfully differing in this respect from the views of Ellis J. and the Tribunal itself, we are clear that s. 6(7) excludes jurisdiction. The memorandum of understanding of 27 August 1992 which preceded the deed of settlement made it plain from the start that in return for the provision of capital for the Sealords project Maori would withdraw existing litigation and support inter alia an amendment to the Treaty of Waitangi Act `to exclude from the Tribunal's jurisdiction claims relating to commercial fishing' (see [1993] 2 NZLR at 309). Part II of the first schedule to the deed of settlement provided for `Amendments to the TOW Act whereby the Tribunal's jurisdiction to inquire into or making findings on commercial fisheries or this Settlement Deed or the legislation giving it effect is removed'. In their Fisheries Settlement Report 1992 (Wai 307) the Tribunal at p.1 summed up this aspect of the deed in the words `that this tribunal shall have no further say on commercial fishing matters'. We consider that to be an accurate summary of the relevant provisions of both the deed and the new s. 6(7), and preferable to the interpretation with glosses enabling jurisdiction to be assumed which was reached by the Tribunal more than two years later in a determination of preliminary issues, 27 January 1995 (Wai 447) at pp 5 to 7.
The language of s. 6(7) is wide and overlapping and, we are satisfied, deliberately so. In the natural and ordinary use of language an inquiry and a recommendation or finding as to how Maori fishing quota should be allocated would be an inquiry into and a finding or recommendation in respect of part of the field of commercial fishing and commercial fisheries. Inevitably, too, it would involve an inquiry into and a finding or recommendation in respect of both the deed and the 1992 Act: for instance, the reasons for and the scope of the frequent references to `Maori' in the Act and the references to `iwi' in Schedule 1A of the Act would be at the heart of the inquiry which the claimants would have the Tribunal undertake. The proper implementation of the deed and the Act cannot be divorced from their true interpretation.
There is no need for the Court to be astute to avoid placing on s. 6(7) its natural and ordinary meaning in its context. In legal terms it is to be seen more realistically as a demarcation clause than as a privative one. Parliament was establishing what is essentially another body to safeguard Maori interests. The intention reasonably to be inferred is that in the special field of that body the more general Tribunal was no longer to operate by way of considering claims under s. 6 of the Treaty of Waitangi Act. The complication and possible confusion of competing Maori-oriented institutions in that field was to be avoided.
That is not to say that the Waitangi Tribunal will never have any function in respect of Maori commercial fishing. Section 6(7) prevents inquiry into an enactment, but not into a Bill. As the Act stands, there would be nothing to prevent the House of Representatives under s. 8 referring any Bill to the Tribunal for consideration in the light of the principles of the Treaty. Conceivably that course might commend itself to the House if a Bill about commercial fishing, although recommended by the Commission, was highly contentious among Maori. We note that, in leaving open the ability to refer a Bill to the Commission, the statute accords up to a point with clause 4.5.3 of the deed of settlement, whereby any tribe with a beneficial interest could obtain a Crown recommendation to Parliament that a Bill be referred to the Tribunal.
With regard to the distribution of pre-settlement assets the legislation as it at present stands does not provide for any reference of a scheme or proposal to the Tribunal. Section 9(4) does allow, in our view, a sequence of references back to the Commission by the Minister. It is not beyond the bounds of possibility that divisions of Maori opinion could prove so intractable as to drive Parliament to an imposed solution, in which event amending legislation to enable a report by the Tribunal might be considered. But that is speculative and in any event not a matter for this Court.
In its determination of 27 January 1995 the Tribunal suggests that s. 6(7) is substantially the same as s. 9 of the 1992 Act. To some extent the provisions do cover the same ground, but s. 9(b) in particular is a true privative clause rather than a demarcation clause. As to the jurisdiction of the High Court in judicial review and other like proceedings, s. 9 will fall to be interpreted on the principles in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147. In the argument before this Court it was rightly accepted by Mr Barton for the Treaty of Waitangi Fisheries Commission that the Commission is subject to judicial review.
For example, we read the legislation, including as it does para. 2 of Schedule 1A, as requiring the Commission to take all reasonable steps to procure the agreement of iwi (the meaning of which term will be discussed shortly). To give a workable interpretation to this duty, we are disposed to think that the Commission is not required to achieve what no doubt is highly likely to be the impossibility of unanimity within Maoridom, but rather to consult sufficiently widely and to have prepared discussion material adequate to enable agreement to be reached if possible on the optimum method for allocation. In the end the Commission itself would have to decide, by a majority as a last resort, on a scheme for the Minister's consideration. The degree of agreement actually reached among Maori would be a material factor for the Minister to consider in deciding whether there should be a reference back. The Commission would be amenable to an order in the nature of mandamus if it failed to consult adequately or to take all reasonable steps to obtain agreement to a scheme.
For these reasons we hold that the Tribunal does not have jurisdiction to inquire into the claims in question. There will be a declaration accordingly.
The proceedings before Anderson J. are all concerned with the issue of the principles which should determine the allocations by the Commission. The only respect in which those proceedings are now before this Court on appeal is that the appellants challenge his order that there be determined before trial the following preliminary question --
Is the Treaty of Waitangi Fisheries Commission, in the exercise of its power to allocate presettlement assets as set out in s. 9(2)(1) of the Maori Fisheries Act 1989 (as amended by s. 17(l) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992) required to allocate those presettlement assets solely to iwi and/or bodies representing iwi or group of iwi?
The Judge reserved leave to any party to apply for further directions as to procedure but indicated that the Court was unlikely to be assisted by evidence. No doubt that was because he saw the question as one of statutory interpretation. On that point we take the same view so far as any further evidence is concerned. The factual background is certainly important, but it is sufficiently and helpfully supplied by the evidence and materials now before this Court, among which we attach particular importance to the discussions of the term iwi in the Waitangi Tribunal's Fisheries Settlement Report 1992 (Wai 307) and its memorandum of 22 May 1995 (Wai 447 and 485) following a second hearing concerning the Fisheries Allocation claims.
The word iwi appears only once in the Maori text of the Treaty set out in the First Schedule to the Treaty of Waitangi Act 1975. There it refers to the Queen's subjects already living on the land and others yet to come. Where the Maori text refers to what in the scheduled English text are called tribes, it uses the expression hapu, which at the present day is usually rendered as a subtribe (see the Kawharu version reproduced in [1987] 1 NZLR at 662-3). In the 1992 Report just cited, at p. 12, the Tribunal states that from its own knowledge and from evidence tendered in various Tribunal inquiries it appears that the main Maori group in the context of the ownership of fisheries was the hapu.
Williams' Maori Dictionary, 7th ed. revised 1985, defines iwi as `Nation, people'. At the present day the expression is commonly used to refer to a tribe, and we have no doubt that it was used in that sense in the resolutions adopted at the annual general meeting of the Maori Fisheries Commission in 1992 set out in Schedule IA to the Maori Fisheries Act 1989 as inserted in 1992. A point not to be lost sight of is that, as the definition in Williams suggests the reference is to the people of the tribe. The leaders or representatives are not the iwi. Consultation with leaders or representatives is merely a means of ascertaining the views of the iwi whom they lead or represent. This truth must be kept prominently in mind in interpreting and applying the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
Neither the 1992 Act nor the deed of settlement uses anywhere the expression iwi, except that the expression appears in the resolutions in Schedule 1A inserted into the Maori Fisheries Act by s. 18 and the Schedule to the 1992 Act. Otherwise the material references are consistently and constantly to Maori. Clause 4.5.1 of the deed of settlement records that `Maori agrees that the settlement evidenced by this Settlement Deed of all the commercial fishing rights and interests of Maori is ultimately for the benefit of all Maori'. Section 3 of the 1992 Act declares `It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the agreements expressed in the Deed of Settlement referred to in the Preamble to this Act'. Early in this judgment we stressed that the settlement was a pan-Maori one. This dominant fact together with the meaning of iwi already discussed must govern the interpretation and application of the 1992 resolutions set out in the new Schedule 1A.
Whatever may have been the former thinking of the Treaty of Waitangi Fisheries Commission, its approach as conveyed to this Court is constructive and helpful. The written submissions of its counsel include --
4.18 That is not to say that individual Maori including those living in the cities, do not have a clear and direct interest in the allocation of pre-settlement assets. The question is not whether urban Maori individuals will receive benefits from pre-settlement asset allocation. The only question is how those benefits will accrue. The legislation makes it clear, in the Commission's view, that those benefits arise by virtue of the inherent and inalienable right of every Maori to membership of one or more of the Iwi in this country. The Commission contends that it is the duty of Iwi to ensure that the benefits inherent in the group are distributed to Iwi members.
At the conclusion of the hearing in this Court the parties were asked to keep the Court informed of any progress towards a solution that might be made as a result of lessons learned by all from participation in the hearing. A memorandum of counsel for the Commission dated 20 December 1995 includes this passage --
19. In this last respect the Commission has always been of the view that it is required by statute and by tikanga Maori to allocate to Iwi, but that such allocation should not and does not disregard the needs of hapu, whanau or individual Maori, whether urban or rural. Rather, the Commission sees the issue as one of accountability; that is not whether such interests are provided for, but how the interests of the individual, whanau or hapu. are provided for. The Commission is committed to addressing that issue in any optimum method for allocation.
There are also references in that memorandum to a new regional model for allocation developed for discussion purposes by four Commissioners, a mechanism for benefiting the interests of Maori with no iwi affiliations, and consultation `with iwi and other relevant interested parties (including all of the parties to the Court of Appeal proceedings)'. A memorandum from Miss Wainwright, counsel for the Urban Maori Authorities, dated 5 February 1996, indicates support in principle for the initiative represented by the new model. We note that the Commission envisages that initially consultation will take the form of a circulated panui relating to procedure, but that, depending on the responses received by the Commission, the panui will invite direct discussions with the Commission.
We consider that this evinced willingness to extend consultation to the Urban Maori Authorities is a major advance in the history of the allocation discussions. Further, it accords with our view of the 1992 resolutions when interpreted in the context of the legislation incorporating them and the surrounding circumstances. `Iwi' refers, as we have said, to the people of tribes; and this must include those entitled to be members although their specific tribal affiliation may not have been and even cannot be established. They are among those entitled to benefit from the pan-Maori settlement. Natural justice requires that as far as reasonably practicable they be consulted by the Commission. The most practicable mode of consultation with them is through the Urban Maori Authorities. We are satisfied that the Commission is right in being now prepared to consult them in that way. We hold that in all the circumstances this is the Commission's statutory duty. The duty extends to ensuring that any scheme or legislation proposed by the Commission includes equitable and separately administered provision for urban Maori. This is required by the Treaty of Waitangi and its principles, applied as a living instrument in the light of the developing national circumstances, which this Court has previously held to be the right approach: see Te Runanga 0 Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641, 655.
There will be a declaration accordingly. No useful purpose would now be served by the determination of a preliminary point as ordered by Anderson J. In effect the point is determined by the present judgment. On this ground the appeals from his judgment will be allowed.
It is not of course the function of this Court to propound any scheme for the distribution of either pre-settlement or post-settlement assets. We accept the Commission's view that a wide range of factors have to be considered, and we have noted that there appear to be special cases such as the Chatham Islands. Any past inequities in the lease rounds would fall to be taken into account and adjusted as far as reasonably practicable in a future settlement. As we have mentioned, the Courts retain their ordinary jurisdiction to require performance of the Commission's statutory functions. We can only hope however that the progress which has apparently resulted from the hearing here will continue with no or minimal involvement of the Courts. It is the responsibility of Maori and a test of Maori to rise to the challenge of working out a solution for Maori of this difficult but surely not insuperable problem.
In these appeals and cross-appeals various parties have succeeded in various respects. The issues were of public importance justifying the proceedings. All counsel have materially helped us, including some whose submissions we have not had occasion to mention specifically, because of the pattern of our judgment. Consequently the party-and-party costs of the parties who appeared in this Court should be paid in the amounts following out of funds held by the Commission, leave being reserved to apply to this Court on any question as to which of such funds should be resorted to. The appellants in C.A. 155/95 and C.A. 184/95 and fourth respondents in C.A. 165/95 will be allowed $12,500; the appellants in C.A. 165/95, $12,500; the fifth to fourteenth respondents in C.A. 155/95 and second respondents in C.A. 165/95 and C.A. 184/95, $12,500; the Crown, $10,000; the twentieth respondent in C.A. 155195, $10,000; the fifth respondent in C.A. 165/95 and eleventh respondent in C.A. 184/95, $10,000; the sixth respondent in C.A. 165/95 and tenth respondent in C.A. 184/95, $10,000. In each case there will also be disbursements including any cost of reproducing the case on appeal and the reasonable travelling and accommodation expenses of two counsel (where appropriate) to be fixed by the Registrar. Costs in the High Court are a matter for that Court in the light of our present judgment.
C.A. 155/95
In this appeal Te Runanga 0 Muriwhenua, Rima Edwards, TeRunanga-A-Iwi-O-Ngapuhi, Whetu Naera, Tainui Waka Fisheries, Tuhuatahi Arama Adams, Daniel Takutaimoana Te Kanawa, Rongo Herehere Wetere, Ngati Ranginui lwi Society Incorporated, Honua Tutengaehe, Te Kotahitanga 0 Te Arawa, Hapimana Whakaruru, Perenara Moke, Howard Rangiriri Harris, John Vercoe, Hohepa Mason, Claude Augustine Edwards, John James Hata, Area One Consortium Limited and Rihari Dick Dargaville appeal against the parts of the decision of Anderson J. on 30 June 1995 in Auckland (C.P. 122/95) wherein the Judge held:
(a) that a preliminary question ought to be argued before trial; and
(b) that a date must be fixed for determination of the question.
This appeal will be allowed and the two decisions set aside. There will be the declaration as to the Commission's duty set out in the body of this judgment.
C.A 165/95
In this appeal Temuranga `June' Jackson (on behalf of the Manukau Urban Maori Authority Incorporated), John Henry Tamihere (on behalf of Te Whanau 0 Waipareira Trust), Mahurenga Wineera (on behalf of Te Runanganui 0 Te Upoko 0 Te Ika Association Incorporated) and Norman Jack Mei Dewes (on behalf of Te Runanga 0 Nga Maata Waka Incorporated) appeal against the parts of the decision of Ellis J. on 31 July 1995 in Wellington (C.P. 154/95 and C.P. 171/95) wherein:
(a) the Judge determined that it was premature as a matter of law for the Waitangi Tribunal to inquire into proceedings of the Treaty of Waitangi Fisheries Commission; and
(b) that there will only be a `policy' proposed to be adopted by both the Treaty of Waitangi Fisheries Commission and the Crown at the end of the Commission's processes when the Commission reports to the Minister of Fisheries pursuant to s. 6(e)(iv) of the Maori Fisheries Act 1989; and
(c) the judge `failed' to hold that the Treaty of Waitangi Fisheries Commission had adopted a `policy' (as to allocation and distribution of assets in respect of urban Maori) which could be the subject of an inquiry by the Waitangi Tribunal.
The appellants in this appeal are all claimants before the Waitangi Tribunal in claim Wai 485.
This appeal will be dismissed; as indicated in the body of this judgment it will be declared that by virtue of s. 6(7) of the Treaty of Waitangi Act 1975 the Tribunal has no jurisdiction to inquire into the claims.
The Treaty of Waitangi Fisheries Commission cross-appealed in this case against:
(a) Ellis J.'s decision that s. 6(7) of the Treaty of Waitangi Act 1975 and/or s. 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 do not preclude the Waitangi Tribunal from inquiring into, and making findings and recommendations in respect of, the Fisheries Allocation Claims in the Waitangi Tribunal (being claims WAI447 and WAI485 -- both the subject of a Tribunal Memorandum dated 22 May 1995; and WAI514 -- filed in the Tribunal on 1 June 1995); and
(b) the Judge's finding that the Treaty of Waitangi Fisheries Commission acts of behalf of the Crown in performing some of its functions, particularly in reporting to the Minister of Fisheries persuant to s. 6(e)(iv) of the Maori Fisheries Act 1989 on the distribution of both its pre-settlement and its post-settlement assets; and
(c) the Judge's `failure' to determine that because the Waitangi Tribunal had issued a memorandum (27 January 1995) indicating that it would proceed with an inquiry on the basis that the claims were primarily against the Crown and the issues were so restricted, it therefore lacked jurisdiction to expand the scope of the inquiry so as to inquire into the Treaty of Waitangi Fisheries Commission as it proposed to do in its memorandum of 22 May 1995; and
(d) Ellis J.'s `failure' to determine that the Waitangi Tribunal's decision (recorded in a memorandum of 27 January 1995) to decline to exercise its discretion under s. 7(l) of the Treaty of Waitangi Act 1975 to inquire into the Fisheries Allocation claims was incorrect in law; and
(e) Ellis J.'s `failure' to determine that the Waitangi Tribunal's decision (10 March 1995) to proceed with the inquiry, having earlier (27 January 1995) indicated that it would await the decision in the concurrent High Court proceedings, was incorrect in law; and
(f) Ellis J.'s `failure' to determine that the decision of the Waitangi Tribunal (in memoranda of 20 April 1995 and 22 May 1995) to proceed with its inquiry and not to exercise its power pursuant to s. 7(lA) of the Treaty of Waitangi Act 1975 to defer its inquiry in the face of the concurrent High Court proceedings was incorrect in law; and
(g) Ellis J.'s `failure' to determine that the decision of the Waitangi Tribunal to proceed with its inquiry (22 May 1995) was wrong in law despite his finding that the Treaty of Waitangi Fisheries Commission was proceeding properly towards reaching an agreement on the optimum method of allocation and that there was no impasse at the Commission which required the intervention of the Waitangi Tribunal.
This cross-appeal will be allowed on the ground indicated in paragraph (a) above.
There was also a cross-appeal by the Treaty Tribes Coalition against:
(a) Ellis J.'s `failure' to determine that the Waitangi Tribunal's decision to proceed with its inquiry into claims WAI 447, WAI 485 and WAI 514 whilst the concurrent High Court proceedings were continuing was incorrect in law; and
(b) Ellis J.'s `failure' to exercise the inherent jurisdiction of the High Court to restrain the Waitangi Tribunal from proceeding with those claims pending the outcome of the High Court proceedings.
This cross-appeal will be allowed, again on the ground that the Tribunal lacks jurisdiction to proceed with the inquiry.
CA 184/95
In this appeal all the appellants in C.A. 155/95, except for Honua Tutengaehe and Te Kotahitanga 0 Te Arawa, appeal against the parts of the judgment of Ellis J. delivered on 31 July 1995 (C.P. 154/95 and C.P. 171/95) in Wellington wherein:
(a) the Judge decided that the Waitangi Tribunal lacked jurisdiction under s. 6(l) of the Treaty of Waitangi Act 1975 to proceed with its proposed hearing; and
(b) the Judge implicitly decided that there will be no `policy' or proposed `policy' (such as would give the Tribunal jurisdiction under s. 6(l)(c) of the Treaty of Waitangi Act 1975) until the Treaty of Waitangi Fisheries Commission reports to the Minister of Fisheries; and
(c) the Judge found that it is not open to the Waitangi Tribunal to conclude that the Treaty of Waitangi Fisheries Commission had not adopted, or had not proposed to adopt, a policy in relation to the allocation and distribution of assets for the purposes of s. 6(l) of the Treaty of Waitangi Act 1975; and
(d) the Judge `failed' to find that it is open to the Waitangi Tribunal to
conclude that there had been relevant acts and/or omissions
of the Treaty of
Waitangi Fisheries Commission such as would give the Waitangi Tribunal
jurisdiction under
s. 6(l)(d) of the Treaty of Waitangi Act 1975;
and
(e) the Judge concluded that the Waitangi Tribunal proceeding was an obstacle to Maori resolving their differences; and
(f) the Judge described the Manawhenua Manamoana Model; and
(g) the Judge made his findings, rejecting what were described in the judgment as allegations of self interest and breach of fundamental duty by the Treaty of Waitangi Fisheries Commission; and
(h) the Judge rejected the appellants' application for the costs of the parties to be paid from the assets and resources held by the first respondent, the Treaty of Waitangi Fisheries Commission.
The appellants in this appeal are all claimants before the Waitangi Tribunal in claim Wai 447.
This appeal will be dismissed, again on the ground that by virtue of s. 6(7) of the Treaty of Waitangi Act 1975 the Tribunal has no jurisdiction to inquire into the claims.
The first respondent, the Treaty of Waitangi Fisheries Commission, cross-appealed upon exactly the same grounds as in their cross-appeal in C.A. 165/95. Similarly, the Treaty Tribes Coalition cross-appealed upon the same grounds as in their cross-appeal in C.A. 165/95.
These cross-appeals will be allowed on the same ground as applies to the cross-appeals in C.A. 165/95.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/21.html