Category: Māori Legal

The Marine and Coastal Area (Takutai Moana) Act 2011 acknowledges the importance of the marine and coastal area to all New Zealanders and provides for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area.  Public access to the common marine and coastal area is guaranteed by the Act.

The marine and coastal area is the area between the mean high water springs and the outer limits of the territorial sea – 12 nautical miles from shore.  The common marine and coastal areas are the parts of the marine and coastal area that aren’t in private ownership or part of a conservation area.

The due date for filing applications to the High Court seeking an order recognising customary interests, or to file an application to the Crown for direct engagement was 3 April 2017.  Over 380 applications were made under the Act.  We set out below a brief summary and update of the process to date.

High Court

For the High Court process:

• Public notices of the applications were due 20 working days after filing an application;
• Anyone who may be affected by an application was able to file a notice of appearance within 20 working days of those notices being filed; and
• The Attorney-General has proposed a grouped approach to the Court for dealing with the High Court applications based on specific areas of the coastline.

Crown Engagement

For the Crown engagement process, we understand that the Crown is currently processing the applications received.  No set timeframes for managing these applications and commencing engagement have been confirmed by the Crown.

Information regarding both processes in general is available on the Ministry of Justice website at https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/

Our Team has experience with direct engagement and negotiations with the Crown, and High Court matters.

Jerome is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7427.

For any iwi/hapū group, the idea of representation is something that is often grappled with and rarely mastered.  In the context of Treaty settlement negotiations with the Crown, representation is a major issue.  As a result, the focus is often placed on this at a very early stage in the negotiations process.

Hand in hand with the issue of representation is the issue of who is being represented by any particular body.  In a Treaty settlement context, this is known as claimant definition and is a fundamental aspect of the mandating process and the overall settlement.  This article outlines some of the key Crown policies and considerations to be taken into account in settlement negotiations in terms of representation and claimant definition.

Large Natural Grouping

The starting point for any issues of representation and claimant definition is the development for recognition of a “Large Natural Grouping” (LNG).  The Crown policy is that, fundamentally, it will only negotiate comprehensive Treaty settlements for historical claims with LNGs.

The definition of an LNG is not a mathematical one and is generally judged by the Crown.  The term has been interpreted in a number of different ways over the years and across the country to the point that it can truly be said that Treaty settlement negotiations is a political beast and Crown policy is simply a guideline in this regard.

Where the Crown recognises a LNG for the purposes of settlement negotiations, the detail around exactly who that LNG includes, and who will represent it, must then be addressed.  The basic premise is that any LNG will have one mandated body to represent it in all negotiations with the Crown through to a comprehensive Deed of Settlement.  In order to achieve the mandated body status, the entity must go through a robust mandating process with its beneficiaries (the iwi/hapū group that it represents) in order for the mandate to be formally recognised by the Crown.

As part of the mandating process, the entity which seeks the mandate must clearly outline a claimant definition to indicate to the Crown and to its beneficiaries who it seeks to represent and whom it seeks to settle on behalf of.

Claimant definition

Claimant definition has four distinct parts:

• Area of interest;
• Hapū;
• Marae;
• Wai claims.

All of these contribute to the LNG status of an iwi/hapū grouping in different ways and serve different purposes.

Area of interest

The area of interest included for a LNG outlines the rohe of that group and should include the specific rohe of the hapū, whānau and Wai claims within the mandated body.  The boundary lines for an area of interest should have a basis in historic evidence, which is often where the work carried out through a Waitangi Tribunal process can be very helpful, and should factor in overlapping claimant groups and the discussions that may be required there.  It may be that some hapū/whānau or Wai claims within the mandated body are also partly covered by overlapping claimant groups and their mandates.  This is a matter for discussion as part of negotiations and mandating.

Hapū

The hapū listed within a claimant definition may or may not be intended as an exclusive list of hapū for that LNG.  A list of hapū is usually found in the final claimant definition under a Deed of Settlement to ensure that all individuals are captured where specific hapū are known or recognised as part of a LNG.  Specific wording is generally used by the Crown to ensure that the recognised ancestors of those hapū groups are also included as ancestors of the LNG in the sense that any person can benefit from the settlement by virtue of being descended from a recognised ancestor of one of those hapū within the LNG.

Marae

A list of marae is also sometimes included, particularly at very early stages of the settlement negotiations process, such as mandating.  It is not generally included in the final claimant definition for the settlement as whakapapa lines to marae are of course quite difficult as opposed to specific descent from a tupuna.

It is generally accepted that a list of marae will not be exhaustive, particularly where a LNG covers a very large area of interest.

Wai claims

Wai claims also make up an integral part of claimant definition for the very fact that all historical Treaty of Waitangi claims for a LNG must be settled.  This is part of the full and final policy of the Crown in relation to settlement negotiations.  That is, any settlement must be full and final for the region and the group which it is made on behalf of.  Any list of Wai claims will usually be concluded with a provision to include all other registered or unregistered claims made by a member of the LNG.

These four key elements, for the most part, make up the overall claimant definition for a LNG.  As part of the settlement negotiations process, the mandated body will need to engage with all those who fall within the claimant definition and will generally do so in a range of ways, as set out within a Deed of Mandate.  These will generally include things like regular newsletters, updates to websites, hui-ā-iwi and other pānui to iwi members.  It is not necessary that the mandated body come back to the wider iwi/LNG to “ratify” every step of the process.  Some groups will choose to do this because of special dynamics within their groups but it is important to note that this can be costly and time consuming, and sometimes detrimental to maintaining momentum with settlement negotiations.

At a very minimum the mandated body must report back on key milestones and must present a Deed of Settlement and any post settlement governance entity to the group for formal ratification.

Challenges to mandate/settlement

Challenges to a mandate, or settlement, can often arise from within the claimant definition group.  There is no one way to manage these disputes and each group will differ in its approach in accordance with tikanga and iwi dynamics.  The important aspect of any internal dispute resolution is ensuring that any process (as per the Deed of Mandate and/or Trust Deed/Constitution for the mandate entity) is followed.  There must always be an ability for any person or group raising issues to be heard.

When managing internal disputes there are, however, some key principles and Crown policies which have been demonstrated in previous negotiations and sometimes supported by the Waitangi Tribunal through urgency inquiries.

It is accepted now that, a challenge from a Wai claimant, without the support of a wider grouping, is not sufficient to upset a robust mandate given by the iwi and recognised by the Crown.  The role of a Wai claimant is much like the role of any individual beneficiary to the settlement in the sense that any Māori can file a Waitangi Tribunal claim.  The fact that one person has done that where another has not, generally, does not give them any greater rights as a beneficiary or to have a say over the settlement of those Treaty grievances.

This is an area which is often confronted by mandated entities in negotiations whereby individual claimants consider that they personally should receive some form of redress based on what is set out in their statement of claim and any evidence presented to the Waitangi Tribunal.  This is not the case as settlement negotiations are of a political nature and are dealt with directly between the Crown and the mandated entity on behalf of all of those within a LNG.  This will include any Wai claimants and their claims but it does not mean that specific redress would be afforded to that Wai claimant.

With that in mind, the Tribunal has also supported the decision of the Court of Appeal in Attorney General v Mair, saying that where a challenge has significant support from a wider group within the LNG, more weight will be given to that challenge.  This is because the prejudice arising from the settlement continuing will be more substantial.  In that regard, where hapū groups seek to be removed from a mandate (rather than individuals or Wai claimants) this will be looked at more closely by the Crown and any mandated entity.

Ultimately, the decision on whether the Crown will negotiate separately with any group who wishes to remove themselves from the mandated body or existing LNG is one for the Crown and will often be based on Crown resourcing and willingness to negotiate those hapū claims distinct and separate from the claims of another LNG.

What to look for

When reviewing a proposed Mandate Strategy and/or Deed of Mandate, it is important, to look at the dispute resolution provisions around internal disputes, together with the provisions to amend the mandate.  It is not just important that there are provisions to remove the entire mandate for an entity but that there are clear provisions as to how a group may seek to be removed from the mandate and/or how the mandate itself will be amended.  This will generally include discussions amongst the mandated entity itself first, followed by discussions with the Crown and then potentially presentation to a hui-ā-iwi for a formal decision.

Amendment to mandate clauses are often left out of Deed of Mandates but in our view, it is generally best practice in order to avoid uncertainty where there are disputes in future.

It is also of course important to look at the representation clauses within the proposed Mandate Strategy or Deed of Mandate to understand exactly how the wider iwi/group will be represented.  Some groups may have specific hapū representation or representation of smaller rohe within the overall area of interest, whereas others may consider that a “best person for the job” model is the right approach given the iwi dynamics.  This will be determined on a case-by-case basis and often it is appropriate to look at existing structures for that iwi grouping to understand what type of model will work best, and what will provide the best accountability and results in a settlement negotiations content.

Renika is an Associate in our Māori Legal Team and can be contacted on 07 958 7429.

The Waitangi Tribunal (“the Tribunal”), established under the Treaty of Waitangi Act 1975, is a commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown that potentially breach the promises made under the Treaty.

The Tribunal, through stringent planning processes, determines the order in which claims are to be heard.  In some circumstances, claimants may seek an adjustment to the priority that the Tribunal has given to their claim by outlining the main reasons for the urgent adjustment sought.  There are two circumstances in which parties involved in the Tribunal claim process may apply for urgent consideration:

• Applications for an urgent inquiry; and
• Applications for an urgent remedies hearing.

This article discusses the criteria set by the Tribunal in determining applications for urgent inquiry.

The Tribunal will only grant such applications in exceptional circumstances. This is because when applications for an urgent inquiry are filed, the Tribunal must review how it will allocate its resources to claims and inquiry districts.  This re-allocation may affect the order in which claims are heard and the Tribunal reserves its discretion to amend its priorities as circumstances require.

Criteria for applications seeking urgency

The Tribunal’s Guide to Practice and Procedure sets out the criteria for determining the proper allocation of resources.  The Tribunal has indicated that it will only grant an urgent hearing if it is satisfied that adequate grounds for priority have been made out.  Urgent hearings effectively delay hearings that are already in progress, such that the claims of those seeking urgency must be balanced against the claims involved in inquiries.

By way of illustration, some of the applications for urgent hearings that have been brought before the Tribunal to date include matters relating to the Kohanga Reo kaupapa, the grounding of the MV Rena and the preservation of the Maui’s dolphin.  The main basis of these applications, as stated above, is an alleged breach of the principles of the Treaty of Waitangi by the Crown.

Applications seeking an urgent inquiry

In deciding whether to grant an urgency application, the Tribunal will consider a number of factors and have particular regard to whether:

• The claimants can demonstrate that they are suffering, or are likely to suffer, significant and irreversible prejudice as a result of current or pending Crown actions or policies;
• There is no alternative remedy that would be reasonable for the claimants to exercise; and
• The claimants can demonstrate that they are ready to proceed urgently to a hearing, meaning that claimant briefs of evidence have been prepared and a majority of the technical research has already been undertaken.

In addition, the Tribunal will consider other factors, including whether:

• The claim challenges an important current or pending Crown action or policy;
• An injunction has been issued by the courts; or
• Whether other grounds justifying urgency have been made out.

Upon receipt of an application for urgency, the Chairperson or Deputy Chairperson may determine the application or may delegate consideration to a Tribunal Member.  The urgency application may be determined either on the papers or by convening a conference to hear submissions from the claimants and others who have a sufficient interest, including the Crown.  The process will normally be discussed amongst the parties involved and set out by the presiding officer.

The Tribunal will expect the parties, and especially the claimants seeking urgency, to be ready to do all that is reasonably possible to promote the prompt inquiry into, and reporting of, an urgent claim.  These circumstances will make it desirable or necessary that the Tribunal hear and report on an urgent claim as quickly as possible.   It is also important to note that upon approval, as with claims in the Tribunal District Inquiries, the costs of urgency applications are covered by the Ministry of Justice.

Conclusion

It is generally understood that the Tribunal will only grant urgency in exceptional circumstances.   Despite this, and in light of the stringent conditions for urgency applications, the Tribunal will endeavour to give priority to claims that can satisfy the criteria.  Legal professionals with experience in this area of law can assess whether a particular claim meets the Tribunal criteria to be considered for urgency.

Jerome is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7427.

The Māori Land Court (“the Court”) has the ability to order reasonable access to landlocked Māori land.  This article examines the considerations the Court takes into account when determining whether to grant access, what the Court can actually do when faced with an application for access, and how McCaw Lewis can help.

Te Ture Whenua Māori Act 1993 (“the Act”), which governs Māori land, recognises that land is a tāonga tuku iho of special significance to Māori and therefore the retention of it should be promoted, and the occupation, development and utilisation of it facilitated.

It is with this philosophy in mind that the Court has the jurisdiction to order reasonable access to Māori land, being either Māori freehold land or general land owned by Māori that ceased to be Māori land under the Māori Affairs Amendment Act 1967, where that land does not have reasonable access i.e. it is surrounded by other blocks and has no road, driveway or easement leading to it.  The key consideration is whether there is “reasonable access” to the block.  In some situations access to a block by boat may be considered reasonable where in other cases it may not be considered reasonable.  Each application is assessed on a case by case basis weighing up all the circumstances.    Therefore, whilst informal arrangements can be made with neighbours to access your land, an application to the Court is the only way this access can become legal.

With this in mind, and given up to a third of Māori land was landlocked in 2000, the jurisdiction of the Court to unlock the land is particularly important.

Considerations of the Court

Whereas in the past applications to unlock Māori land had to be made to the High Court, since an amendment to the Act in 2002 applications are made to the Māori Land Court.  This, it is hoped, makes it easier for owners of landlocked Māori land to bring their applications before a less formidable and less costly court.  Under the Act, when considering an application, the Court must have regard to a number of factors:

• The nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land;
• The circumstances in which the landlocked land became landlocked;
• The conduct of the applicant and the other parties, including any attempts that they may have made to negotiate reasonable access to the landlocked land;
• The hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order;
• Other factors where the access would cross conservation land or a railway line; and
• Such other matters as the Court considers relevant.

Of those matters we consider the following in more detail.

The nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land

Since the establishment of Māori freehold land titles legislation has sought to ensure that special succession rules exist in order that such land remains with the whānau upon the death of an owner.  Therefore, today, most owners of Māori land hold title through succession and not through purchase.  In light of this, it is unlikely that the inherited nature of access will be an impediment to owners seeking to unlock Māori land.

The circumstances in which the landlocked land became landlocked

Generally, given Māori land was landlocked through no fault of the owners (through historical partitions or because of public works takings) it is unlikely that owners applying for reasonable access will be denied upon this consideration.

The hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order

The Court has found that, if it comes to the view that the benefits for the owners as a whole outweigh the detriment to the landowner affected by the application, or that the detriment can be compensated for or dealt with in some way, then the Court may look favourably upon the application, provided that all other requirements have been met.

In Houpapa v Woods – Taharoa A Sec 6D No 2 Block (2012) 44 Waikato Maniapoto MB 167 (44 WMN 167) the Court considered these matters closely.  In that case the applicant had applied for access over a neighbouring block as there was no access by road.  There was access by boat and by foreshore however the applicant gave evidence that these methods were expensive and difficult.  Despite the application being dismissed as only one of a number of owners had applied (which did not equate to the statutory requirement that “the owners” make the application), the Court provided a comprehensive decision which considered each of the factors closely.  There the Court set out a number of matters the owners would need to address if they were to make an application for access in the future including:

• When determining what was considered “reasonable access” the Court took into account the purposes which the land was used for as well as what physical access is reasonably necessary in this case.  Here, the Court indicated that it would need further evidence as to what the intended land use would be before making an assessment as to the kind of access that was reasonably necessary.  It did however note that access by boat or along the foreshore was sufficient for recreational uses of the block, including visiting wāhi tapu that may be on the block;
• Both the applicants and neighbours raised misconduct on the part of the other party.  The Court found that none of the evidence produced for either side was sufficient for it to determine who was at fault, or who was most at fault.  Regardless the Court found that such misconduct by each party, even if proven, would not be sufficient on its own to determine the application one way or the other, although it might weigh with other factors;
• The applicant alleged he would suffer hardship if the application were not granted due to the difficulty he would have in establishing a proposed economic farm on the property if he did not obtain easier access.  The Court was sceptical about the proposal and noted a lack of business plan, feasibility study or other evidence to show there would be economic benefit concluding that any future application would need to address these matters if it were to have a chance of success.

The above factors highlight just how unique every application for access to landlocked Māori land is and while there are some general factors the Court will look at when faced with such an application, each case is determined on its merits.

What can the Court do?

If, after considering all matters the Court is of the opinion that reasonable access should be granted to the landlocked land, the Court may create an easement (which gives you permanent permission to use a piece of land for access) or transfer another piece of land to the owners of the landlocked land.

When granting access the Court can also set such terms and conditions as it thinks fit, most of which involve costs to the applicant, including payment of compensation or exchange of land with another person, the fencing of any land and the upkeep and maintenance of any land or fence.

How can McCaw Lewis help?

McCaw Lewis can assist you to determine whether your land is landlocked, negotiate with neighbours for access and, if necessary, make an application to the Court.

If you would like further information please contact Kylee Katipo on 07 958 7424.

Introduction

Te Ture Whenua Māori Act (“the Act”) places restrictions on who Māori land may be left to by Will and who is entitled to succeed to Māori land interests when a person dies intestate (without a Will).  In either case, in order to succeed to Māori land an application must be made to the Māori Land Court.

Who can you leave your Māori Land to in your Will?

An owner of Māori land may leave his or her interests in Māori land by Will to any of the following:

• Children and remoter issue;
• Any other persons who would be entitled to succeed if the person died intestate (as is explained below);
• Any other persons who are related by blood and are members of a hapū associated with the land;
• Other owners of the land who are members of a hapū associated with the land;
• Whāngai of the deceased; and
• Trustees of the persons referred to in the five points above.

A deceased owner may also leave a life interest in Māori land to their spouse, civil union partner or de facto partner.  This life interest exists until that person dies, gives up the interest in writing, or enters into another marriage, civil union or de facto relationship.  Once the life interest has expired the land reverts to the beneficiaries under the Will so long as they fit into one of the categories in the six points above.

Any provision in a Will that purports to leave Māori land to someone outside of the above categories or to a surviving spouse, civil union partner or de facto partner absolutely, will be treated as though it is null and void and of no effect, and the Court will deal with that interest as though the person died intestate.

Intestate succession

When a Māori land owner dies intestate there is a priority order for succession to the Māori land interests:

• Children of the deceased living at his or her death (or the children of any child of the deceased who died before the deceased) are entitled to equal shares;
• Where the deceased leaves no children then the deceased’s brothers and sisters are entitled to equal shares.  If they are deceased then the interests pass to their children;
• Where the deceased has no children or brothers and sisters then the persons entitled are those most closely related to the deceased from the side of the whānau from which the land derives from, who have children living at the date of death of the deceased; and
• When no person falls into the above categories, the Court can determine who is entitled based on tikanga Māori.

First and foremost however, when a Māori land owner dies intestate, a surviving spouse or civil union partner is entitled to a life interest , unless that person gives up the interest in writing, or enters into another marriage, civil union or de facto relationship.

An interesting distinction to note is that, while a Māori land owner can leave a de facto partner a life interest in their Will, there is no provision for a de facto partner to take a life interest on intestacy.

The succession process

The process of succeeding to Māori land begins with an application to the Māori Land Court.  The application should include the following information:

• The deceased’s whakapapa;
• The names, contact details and birth certificates  of any children (including any whāngai);
• The names and contact details of any surviving spouse/partner;
• A list of Māori land that the whānau know the deceased owned (the Māori Land Court will do further research once the application is filed to ensure that all land owned by the deceased is included in the succession orders);
• A copy of the Will and probate documents (if applicable); and
• The death certificate.

Template succession application forms are available on the Māori Land Court website (http://www.justice.govt.nz/courts/maori-land-court) or at any of the Māori Land Court offices.

Once the Māori Land Court has all of the necessary information, the matter will be set down for hearing.  At the hearing the Judge will hear from the applicant and any other interested parties.  The Judge will then make a determination as to who is entitled to succeed to the Māori land interests of the deceased and make orders vesting the interests in those entitled.

Conclusion

To avoid any further distress for whānau following the passing of a loved one, owners of Māori land should ensure that they have an up to date Will that deals with their Māori land in accordance with the Act.  We also suggest that Māori land owners talk to their whānau about what they want to happen with their Māori land so that there are no surprises when the time comes.  Our Team can assist with the drafting of your Will, the preparation of the succession application and, if required, appear on your behalf at the Māori Land Court hearing.

If you would like further information please contact Kylee Katipo on 07 958 7424.

He Tīmatanga/Introduction

The matter of ownership of a dwelling built on multiply-owned Māori freehold land was recently raised again in the case of Herewini – Maungaroa 1 Sec 23K (Keterau) (2013) 85 Waiariki MB 141.  This case is a reminder to those who build on multiply-owned Māori freehold land that, once built, the dwelling, if affixed to the land, is considered to form part of the title to the land, belonging to all of the owners.

The Māori Land Court (“the Court”), however, has the ability to award the ownership of such a dwelling to the owner who built it.

Herewini – Maungaroa 1 Sec 23K (Keterau) (2013) 85 Waiariki MB 141

This case concerned a dispute over the ownership of a dwelling (in this case a converted skyline garage) on a Māori freehold land block, Maungaroa No. 1 Section 23K.

The applicants applied under s 18(1)(a) of Te Ture Whenua Māori Act 1993 (“the Act”) for an order granting them ownership of the dwelling.

The basis of their application was that they had built and occupied the dwelling since 1989, had paid all outgoings from 1993 and had obtained a loan in 2007 which they used to convert the garage into the four bedroom dwelling.

However, their right to possession of the dwelling was challenged by some of their whānau for the following reasons:

• The house was a fixture and therefore owned by all owners;
• Consent given by other owners was only for  a double garage;
• The original intention of the dwelling was that it would be available for all whānau living away as a temporary home base;
• It was not intended for one whānau to own or occupy the dwelling indefinitely;
• The spiritual connection that all the whānau have for the whenua and dwelling should be maintained and not extinguished.  This was because the site where the dwelling is located is the site of the old whānau homestead.

Ko te Ture/Relevant Law

In its decision, the Court referred to the Māori Appellate Court decision in Tohu – Te Horo 2B2B2B (2007) 7 Whangārei Appellate Court MB 34 (7 APWH 34) where the Appellate Court discussed s 18(1)(a) of the Act stating:

“Where an owner of multiply owned land, … builds a house on the land, the house if affixed to the land, forms part of the title to the land and belongs to all the owners of the land according to their respective shares.  That is the legal position.  However the Court has, in many such cases, using equitable jurisdiction … awarded the property in the house in an owner who has erected the building, thus giving him or her rights to the house.”

Therefore, the Court is able to use its equitable jurisdiction to award ownership of a dwelling to an owner who erected it.  Where it grants such an order the Court noted that this appears to separate the house from the title to the land and treat it as a chattel.

The Court also noted that there is no ability to succeed to an order of this nature and that anyone who wishes to sustain a claim for the house needs to apply for another order.

Ko te Whakawā/Decision

Following that line of reasoning, the Court in the Herewini case awarded the applicants ownership of the dwelling.  Factors the Court considered in reaching this decision included:

• The length of the applicants’ occupancy of the dwelling and the improvements they had made;
• The significant work and investment made by the applicants in building and improving the dwelling;
• The fact that the applicants had taken responsibility for payment of the rates;
• The fact that the applicants were the ahi kaa on the land;
• The fact that alternate sites were available on the block for other members of the whānau should they wish to build on the land, meaning that no one would irrevocably lose their bond with the land as a result of the Court’s decision.

It is noted however that, although there was a positive outcome in this case, there is always a risk that the Court will not grant ownership in this type of case.

Tono noho whenua/Occupation Orders

An alternative available to owners, either in this situation or considering building, is an occupation order issued by the Court.  Such an order grants people the right to occupy a house site on Māori freehold land. Occupation orders can be sought for an existing house, but preferably would be sought in advance.

The owner of a beneficial interest in Māori land or anyone entitled to succeed to a deceased owner may apply for an occupation order. The area of occupation sought must not be more than the proportion of shares the applicant owns, or will own upon succession, in the block.

The Court may set a period of time that the order is for, or specify that it will end on the occurrence of a defined event, such as the death of the occupier.

He Whakarāpopototanga/Summary

Given the potential ownership issues with dwellings built on multiply-owned Māori land, it is recommended that owners seek advice before proceeding to build to avoid any unwanted repercussions later, such as a challenge to ownership.

Alternatives such as occupation orders under the Act may be more appropriate for those considering building on multiply-owned land and provide applicants with some assurance, before proceeding to build, that their right to occupation will not later be challenged.

If you would like further information please contact Kylee Katipo on 07 958 7424.

Introduction

In June 2013 I prepared an article titled “The Constitution Conversation – He Kaupapa Nui te Kaupapa Ture”.  The article discussed the “constitution conversation” or the review of New Zealand’s constitutional arrangements (“review”) that was conducted by the Government throughout 2013.  As part of the review, the Ministerial Advisory Panel (“Panel”) held a series of consultation hui across the country and invited public submissions on a number of questions regarding the constitutional arrangements of our country.  The report by the Panel titled “New Zealand’s Constitution – A Report on a Conversation, He Kotuinga Kōrero mo Te Kaupapa Ture o Aotearoa”, was released in November 2013.  Set out below is a a summary of the key findings and recommendations from that report.

The review

The review originated from a 2008 Confidence and Supply Agreement between the Māori Party and the National Government.  The review called for public submissions on how we want our country to be run and sought views from the public on the following topics:

• The pros and cons of having our constitution written in a single document;
• The role of the Bill of Rights Act 1990 in our constitution;
• The role of the Treaty of Waitangi in our constitution;
• How Māori views should be represented in national and local government; and
• Electoral issues such as the size of Parliament and the length of each government’s term.

During public consultation in 2013, the Panel members attended over 120 community hosted hui and other events.  There was also a significant media campaign.

The Panel received 5,259 submissions in total from individuals and groups, which, it has been noted, reflected a diversity of views.

The Panel’s report is 176 pages in length and responds to the topics and questions posed in the review by identifying what it considers to be key themes coming out of the consultation process and providing “Perspectives and Reflections” as well as overarching recommendations to the Government.

Key themes of the conversation

In the review the Panel identified themes or common factors that most people appeared to consider and balance while developing their views on the topics of the conversation.  Common themes included: a sense of belonging, fairness and justice, representation and participation and checks and balances on power.  The Panel said that, while there were some contradictory views on some of the topics, participants’ aspirations for the constitution were fairly consistent: “to provide for stable, adaptable, legitimate, representative, responsive, principled, considered, accountable, transparent, inclusive government that aspires to ensure people’s well-being”.

Recommendations, reflections and perspectives

The key recommendation of the Panel was that the Government continue the constitution conversation with Aotearoa.  Co-Chairs of the Panel, Sir Tipene O’Regan and Professor John Burrows stated, “The report signposts a way forward for future conversations about the constitution – a conversation that many within our nation are enthusiastic to continue”.¹

However, in terms of continuing the conversation, the Panel noted that there was a lack of strategic leadership in this field, highlighting that the existing resources on the constitution are incomplete and difficult to find.  For example, the Panel identified that there are few resources on constitutional topics that are suitable for Māori medium schools.  Therefore, to support a continued conversation, the Panel recommended that the Government improve access to information about the Treaty of Waitangi, civics, and citizenship in our schools and communities.

On the specific topics tendered as part of the review, the Panel makes the following recommendations to the Government:

• A Written Constitution: That the public needs more information on the subject of a written constitution.  The Panel notes that, although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution.
• Te Tiriti o Waitangi, The Treaty of Waitangi: In terms of Te Tiriti o Waitangi, the Panel recommended that the Government continue to affirm the importance of the Treaty as a foundational document.  The Panel also recommended that the Government set up a process to develop a range of options for the public to consider for the future role of the Treaty in our constitution, including options within existing constitutional arrangements and arrangements in which the Treaty is the foundation of the constitution.
• Māori Representation: The Panel recommended that the Government investigates how Māori representation in Parliament might be improved by looking at how local government processes and decision-making can better reflect the interests of Māori.  In addition, when conducting the recommended investigation,  the Panel recommended that the Government has regard to a range of options including Māori political structures and local and international models.
• The New Zealand Bill of Rights Act 1990: The Panel recommended that the Government set up a process for the public to explore in more detail the options for amending the Act to improve its effectiveness, including:
  • Adding economic, social and cultural rights, property rights and environmental rights;
  • Improving compliance by the Executive and Parliament with the standards in the Act; and
  • Giving the Judiciary powers to assess legislation for consistency with the Act,  entrenching all or part of the Act.
• Electoral Matters: In terms of the size of Parliament, the Panel’s view was that there was no need for the Government to further review this matter.  The Panel advised  that the discrepancy in geographic size affects the representation of people in large electorates, particularly Māori and rural electorates.  The Panel noted that there is a reasonable level of support for a longer term of Parliament and a fixed election date.
• Other Issues:
  • The status and functions of local government and its relationship to central government;
  • The role of He Whakapūtanga o te Rangatiratanga o Nu Tireni, the Declaration of Independence;
  • The role and functions of the public service;
  • The distinct interests of citizens of countries within the realm of New Zealand;
  • The role and functions of the head of state and symbols of state; and
  • An upper house of Parliament.²

The Government has indicated that it will respond to the recommendations contained in the report within six months.

If you would like further information please contact Aidan Warren on 07 958 7426.

1. “New Zealand’s Constitution –A Report on a Conversation, He Kotuinga Korero mo Te Kaupapa Ture o Aotearoa”, November 2013
2. Ibid

Iwi groups throughout the country are currently in Treaty settlement negotiations for the comprehensive settlement of their historical Treaty of Waitangi claims against the Crown.

Some of these iwi groups will have their claims discussed in Waitangi Tribunal reports and have a body of evidence already prepared as part of the Waitangi Tribunal process. Others have skipped the Waitangi Tribunal inquiry phase altogether and have proceeded to direct negotiations with the Crown without that background.

Direct Negotiations vs Tribunal Inquiry

Both avenues have their merits. Proceeding through a Waitangi Tribunal inquiry/hearing process prior to negotiations has the benefit for iwi to be able to draw from significant evidence once in negotiations with the Crown. It also means recommendations and findings from the Waitangi Tribunal which, although not binding, do have weight when later negotiating directly with the Crown.

For those who proceed to direct negotiations without a Tribunal Report in support, one upside is that negotiations can progress more quickly without a lengthy Tribunal inquiry being carried out beforehand. On the other hand, the evidence base provided via the Tribunal process will not be available but may be met in some ways via research funded separately and prepared specifically for negotiations.

Each iwi group will need to consider what the appropriate course is for them, bearing in mind the nature of the grievances suffered by them, the timing factor and potential opportunity cost of delaying negotiations and the background evidence which may be provided via the Tribunal inquiry.

There is no right or wrong way to approach settlement negotiations but, for those who do commence negotiations with the Crown, we set out below an overview of the key milestones involved and some of the considerations to be made when embarking on this journey.

Mandating

The first step in settlement negotiations is the mandating process, whereby a iwi group receives the mandate, or authorisation, from the iwi members to act on their behalf in negotiations with the Crown towards a settlement of that groups Treaty of Waitangi claims. In order to do that a mandate strategy must first be prepared by the iwi group and approved by the Crown (via the Office of Treaty Settlements and/or Te Puni Kōkiri) which sets out the process through which a mandate will be achieved. The mandating process will invariably require a series of mandate hui at which the proposed mandated body will present to the iwi and to explain why it seeks a mandate and on what basis.

Following those mandate hui, if sufficient support is provided, the iwi group will prepare a Deed of Mandate for the mandated body. That document is submitted to the Crown for formal recognition. Once formally recognised, the mandated body can commence negotiations with the Crown.

In order to do so, the Crown will prepare its work plan through to an Agreement in Principle (at least). There is always the possibility that work plans and timeframes will vary during the course of negotiations and, whilst this can be frustrating for iwi groups, it is often inevitable given the political nature of negotiations. With that in mind, iwi groups must factor those potential delays into communication strategies and also funding application(s) to groups such as the Crown Forestry Rental Trust.

Terms of Negotiation

Terms of Negotiation are another milestone on the way to a settlement. At times, these can be relatively pro-forma however they do serve a purpose in setting the ground rules between the mandated body and the Crown going forward into what can be intense negotiations. Terms of Negotiation also have other impacts in terms of limiting iwi group’s involvement in Waitangi Tribunal proceedings and other Court proceedings. Whilst Terms of Negotiation are non-binding, they are based on good faith and must be followed by both parties if the negotiations are to progress.

Agreement in Principle

Following the signing of Terms of Negotiation between the two parties, formal negotiations can commence towards an Agreement in Principle. An Agreement in Principle is a major milestone for any iwi group, as it sets out the overall redress package agreed to.

In recent times, there has been a move towards more informal Agreements in Principle or Agreements in Principle equivalents, where the level of detail is less than that of a normal Agreement in Principle. This has been a result of a drive to reach settlements where there may not be resources to complete all aspects of the standard Agreement in Principle at that stage of the process. This can leave considerable work to be carried out in the following phase through to Deed of Settlement, but can also mean that claimant groups avoid delays at this phase (and flow on funding issues). That said, the Crown’s preference now seems to be moving back towards having full details in an Agreement in Principle to ensure completeness.

Deed of Settlement

Obviously, the Deed of Settlement is the ultimate aim, together with the settlement legislation. Following Agreement in Principle, the groups will work towards an initialled Deed of Settlement detailing all redress to be provided in full and final settlement of the iwi group’s historical claims.

A Deed of Settlement will include the following redress:

• Historical Account covering the claims of the iwi group and Crown breaches of the Treaty;
• Crown acknowledgment and apology;
• Cultural redress, including redress over sites of cultural significance to the group and relationship redress/agreements with Crown departments;
• Commercial redress, including a quantum amount and specific commercial sites which are to be purchased from that quantum.

Once the Deed of Settlement is initialled by the mandated body, the Deed is referred back to the iwi for approval (known as ratification).

Ratification is the formal process where all beneficiaries of the settlement have the opportunity to comment and vote on the settlement redress package agreed to between the mandated body and the Crown. This is a particularly important part of the process and is often tied together with the ratification of the post-settlement governance entity for the group. The Crown must approve the post-settlement governance entity for any iwi group, as it will be the group that receives the settlement redress following the passage of settlement legislation.

Summary

Although the key planks of settlement negotiations are set out above, we have recently seen a number of variations from the standard process which bring their own benefits and challenges. Our team is available to advise on all aspects of negotiations, including advice on unique approaches to settlement and specific on account settlements.

Renika is an Associate in our Māori Legal Team and can be contacted on 07 958 7429.