Compiled by Jason Koia Ruawaipu Tribal Authority

1

04 March 2005

To:

The Registrar,

Maori Land Court

Te Tairawhiti, Aotearoa.

REPORT TO THE MAORI LAND COURT ON COMPLIANCE ISSUES. WHAREKAHIKA A13 – POTAKA MARAE.

Compiled by Jason Koia Ruawaipu Tribal Authority.

“As is clear from the research completed so far in this area, our general understanding of Maori law is evolving. What is emerging from the research can only be described as broad in scope and laced with generalisations which still need to be properly tested tribe by tribe or region by region. Failure to do so will always mean, no matter how good any glossary or dictionary of terms may be, that concepts of Maori law will be selectively chosen to fit outside the cultural context within which they have evolved and adapted. In my view, Maori customary law concepts can only be properly ascertained and applied by considering their historical evolution within a particular hapu or iwi from ancient times through to the present. The challenge is to uncover and demonstrate that evolution.” - [Access To Customary law, New Zealand Issues, Judge Caren Wickliffe].

“Maori consciously chose such property rights over customary landholding patterns. They were promised certainty of boundaries, of title against conquest, transferability, and exclusive enjoyment. On their own property even the monarch could not intrude, absent hot pursuit or a warrant given by independent judges … I have great sympathy for East Cape’s Potaka Marae. They want to build fish farms on their land. They should be free to do that as long as they avoid nuisance to neighbours or to the commons. Local government’s power to stop them is a breach of the Treaty and an infringement of their ownership rights.” [Stephen Franks Australasian Law Reform Agencies Conference: Session 6, 15 April 2004].

Foreword

Tena Koe,

On February 21, 2004 as a result of a meeting held between the Ruawaipu Tribal Authority and Trustees and Marae Committee of Potaka, an aquaculture hatchery was erected under the ancient rule of custom by Tapaeururangi hapu members and Ruawaipu Tribal Authority members.

The initiative involved fulfilling the aspirations of their tupuna. Parliament viewed it as not complying with government laws. The members involved were making claim to their tino rangatiratanga as a direct stance against Parliament over the proposed foreshore and seabed bill. The focus was aimed at education, kaitiakitanga and manawhenua.

Since then there has been a division between hapu members, Parliament and government threats to comply, enforcement by the Maori land Court and Police. Fundamental issues of compliance are still unresolved.

This Report looks at legal complexities of Potaka Marae and raises significant questions of law. As a direction by the Maori Land Court (meeting convened 14 February 2005 at Ruatoria), the court has stated that the hapu need to go back to a hui to be facilitated by a Judge to re new and resolve issues of Wharekahika A13 – Potaka Marae.

This Report recommends that under section 27 (1) of Te Ture Whenua Act 1993, the Maori Land Court initiates an inquiry or investigation into the matters contained in this report, and that the report by the Maori land Court, forms the basis of dialogue to be initiated at the hui as a result of the Maori Land Courts latest direction dated 14 February 2005.

Noho ora mai ra

Jason Koia

[1].By way of background

1.1On the 20 of April 2004, as a result of an application in the Maori Land Court on 25th of March 2004, an injunction was enforced by Judge Wickliffe of the Maori Land Court prohibiting Ruawaipu Tribal Authority members from actual or threatened trespass to Wharekahika A13 – Potaka Marae. Two trustees of Potaka Marae were also removed by the Maori Land Court.

1.2On the 2nd of June 2004 an order was directed by Judge Wickliffe of the Maori land Court prohibiting the remaining trustees from taking further action pursuant to the injunction dated 20th of April 2004.

1.3On the 5th of July 2004, the Maori Land Court (Judge Isaacs) reinstated the trustees that were removed on 20th of April 2004, as it was found that the principles of natural justice had been breached by convening a judicial conference into a court without proper notification. A meeting was to be facilitated by the Maori Land Court at Potaka Marae in which those who were trespassed in the Injunction dated 20 April 2004 could attend.

1.4On the 31st of July 2004, a meeting was facilitated by the Maori Land Court at Potaka Marae. The Police ignored clear directions from the Maori Land Court and enforced a trespass on Ruawaipu Tribal Authority / hapu members. Approximately 150 people attended. Following voting, in which 127 people took part, three resolutions were passed:

(i)That the gazette (Potaka Marae) notice be amended to read:

“….be set aside as a Maori Reservation for the purpose of a meeting place, urupa and wahi tapu for health educational, social and employment development of Te whanau-a-Tapaeururangi hapu of the Ngati Porou tribe.”

(ii)That there would be a total of 7 marae trustees: and

This would mean that the purposes for which Potaka Marae was being used for would comply with the amended gazette notice. After the hui had completed, due to a majority resolution of nominated trustees, Ruawaipu Tribal Authority members were then invited onto Potaka Marae by the Police.

1.5On 25th of August 2004, a Letter by the GDC planner Hans van Kregten to Bill Te Kani stated;

“…. If the operation (hatchery) is not a commercial one (i.e. not carried out primarily for profit, but say for the well-being of the Marae) then the activity could be classed as permitted, and no land use consent for the operation will be needed.”

1.6On 26th of August 2004, the Maori Land Court received no objections to the nominated trustees elected at the hui convened on the 31st of July 2004. The court then put it to the elected trustees that in order for them to work together as trustees in a legal manner they must not only comply with the local authority but that they must also comply with the gazette notice.

It was made clear to the court that the hapu already had a structural engineers report and an electricians compliance report and that dialogue was always intended with the Gisborne District Council (GDC) and the Ministry of Fisheries (MoF) about fulfilling the hapu’s aspirations legally.

1.7 On 13 September 2004 Daniel Lees Acting Senior Fisheries Advisor for the Ministry of Fisheries wrote to Mr Te kani ………..

“Whether the operation is legal - Because the activities you are currently undertaking is not breeding or rearing fish for sale, it is not necessary to have a fish farm licence under the freshwater Fish Farming regulations 1983, provide the following points are observed;

Fish used to stock the “hatchery” must be taken under a valid permit authorised for that purpose by kaitiaki or the Fisheries Act 1996.

Stock cannot be sold the definition of “sale” is broad and may include either monetary or non-monetary payment such as barter and trade..

Stock is used for non commercial and educational purposes only.”

1.9On 20 September 2004 a reserved decision by Deputy Chief Judge Wilson Isaac confirmed; Having regard to the fact that the beneficiaries and trustees have agreed to comply with the legal requirements as stipulated by the Maori land Court being The Resource Management Act 1991, The Fisheries Act 1983 and 1996, and The Building Act 1991,

Pursuant to section 338(5)(d)/93 the court recommends that the purpose of which Potaka Marae is set aside as a Maori Reservation be changed to read as follows;

“….be set aside as a Maori Reservation for the purpose of a meeting place, urupa and wahi tapu for health educational, social and employment development of Te whanau-a-Tapaiururangi hapu of the Ngati Porou tribe.”

[2].Scope

2.1This report looks at the complex intricacies of the law, and the best pathway forward for Potaka Marae.

[3].The foundation of Law

THE ORIGIN OF THE CROWN THE ORIGIN OF THE ROMAN CROWN

THE ORIGIN OF THE NZ CROWN

[4].Compliance Issues

Part I Imperial Law and case law.

4.1For many years up to and including 1840, the King, Lords and Commons of England distinctly and absolutely disavowed all pretensions to the sovereignty of the New ZealandIslands, or to any dominion or authority over them[1], Imperial Law states;

 “that nothing in the said charter contained shall affect or be construed to affect the rights of any aboriginal natives of the said colony to the actual occupation or enjoyment in their own persons, or in the persons of their descendants, of any lands in the said colony then actually occupied or enjoyed by such natives” – [s 37 Queens Instructions (Imperial), December 1840]

“ And whereas it may be expedient that the laws, customs and usages of the Aboriginal or Native inhabitant of New Zealand, so far as they are not repugnant to the general principals of Humanity, should for the present be maintained for the Government of themselves, in all their relations to, and dealings with each other, and that particular Districts should be set apart within such Laws, customs and usages should be observed.” [s71 New Zealand Constitution 1852,]

4.2Case law states

“The doctrines of Feudalism, English Law or Civil Law cannot influence upon the lands (territories) to which the Maori of New Zealand own according to their customs and usages” [Fenton 1870].

“Maori customary law enjoyed legal status in the European Colonial courts in NZ, in the absence of any statute indicating otherwise, that statute being enacted by the native inhabitants themselves” [ (Lord Phillimore Privy Council) Hineiti vs The Public trustee NZ 1901]

“The Privy Council held that Indigenous customary Law to be enforceable legal rights in the ordinary Courts, irrespective of whether or not the Treaty of Waitangi or the Principles have been expressly incorporated in to legislation”- [Oyekan v Adel ].

Part II The Native Title.

4.3The New Zealand Lawyers rejected the Privy Council’s view that the Crown is not the exclusive source of title in this country (NZ) [S. Franks 2004]. The other source of title is the native title, recognised by the Queen [s10 1846 constitution (imperial)]. The issue of Crown grant did not amount to the extinguishment of the native title, the native title being full rights powers and privileges prior to the Treaty of Waitangi and that the Crown lacked unreviewable prerogative power in relation to the native title [Tamaki vs Baker 1901]. This native title was found to still be unextinguished [NZ Court of Appeal 2003 – Marlborough Sounds Case]. Te Tiriti o Waitangi did not cede sovereignty or extinguish the native title.

4.4The native title is enshrined in the Declaration of Independence 1835 and Te Tiriti o Waitangi 1840. There are two duties the Crown (Monarch) has

(i)Feudal (protection by Her Majesty’s Royal Navy and Army)

(ii)Fiducial (in the utmost of good faith).

Part III Feudalism.

4.5 Feudalism derives from common law, a land tenure system usually held by a divine ruler. The King was the ultimate overlord, tenancies were granted to feudal overlords, below them lesser lords, tenants and serfs were ranked according to status[2].

4.6 Maori customary land is held under tikanga (the ancient rule of custom). The over lord is Io matua te kore, all subjects were of the land while high ranking chiefs held in trust (kaitiaki) the manawhenua for their respective whanau hapu.

“Every title shall not have been extinguished, shall be determined according to the ancient custom and usage of the Maori people” [ Native Rights Act 1865]

4.7The New Zealand land tenure system derives from Imperial and common law Although it could be argued that Maori land once transformed into title became a title of common law, however, there were certain pre emptive rights that belonged to the Crown (Article II). By clause 14 of the Letters Patent or Charter of 23rd December 1846, issued under the authority of the Constitution Act of 1846, 9 & 10 Vict. C.103, the authorities authorised to issue grants were the Governors of the Provinces of New Ulster and New Munster, using the public seals of their provinces. The 1846 legislation was opposed in New Zealand by the Governor and not put in place and repealed in 1848[3].

4.8It could be said theoretically, if the Crown was proven not to own one inch of soil under its pre-emptive right, the over lord in New Zealand in respect to land law according to common law, would be tangata whenua. Common law cannot determine feudalism according to tikanga Maori. Therefore New Zealand land law is subject to two laws (common law and tikanga).

Part IV Domestic Statute.

4.9NZ law derives from English and Imperial Law (Common Law) introduced into this country at 1840 (radical title).

4.10There is a history of domestic statute by NZ Parliament (1852) recognising native governance rights,

Section 18 1 (c) iv – “To apply and maintain the maximum possible efficiency and responsibility in their local self government and undertakings”. [Maori Community Development Act 1962 ] (this means our own governance-tino rangatiratanga)

Section 56(2)(d) to promote the aspirations of Maori governance [State Sector Act 1988]

4.11The Resource Management Act 1991 (RMA) includes some 30 separate references to Maori issues. The references in the Act to Maori values reflect the Crowns obligations under the Treaty, and specifically Article II, under which the Crown agreed to protect the Chiefs absolute authority (te tino rangatiratanga) over their lands, villages and all possessions including taonga. Section 8 of the RMA states………..

“Any person who administers the RMA shall take into account the principles of Te Tiriti o Waitangi” . (That means every section of the Act).

4.12 1993 Te Ture Whenua Act was enacted by Parliament, Section 2 (2) states

“Without limiting the generality of subsection (1) of this section, it is the intention of Parliament that powers, duties and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Maori owners, their whanau, their hapu, and their descendants and that protects wahi tapu.”

Part V The constitutional status of NZ

4.13 In 1907 the Queen granted dominion status to her colony (subject to her rule). The Queen did not have the authority to grant sovereign status to the Dominion of New Zealand. To do so would breach the feudal and fiducial prerogative duty that is held in perpetuity unto the native-aboriginal of New Zealand whilst the subjects of England and the Commonwealth reside under Te Tiriti o Waitangi.

4.14The New Zealand ratification of the Statutes of Westminster Adoption Act 1947 was invalid [league of Nations Charter 1920] as Britain had no jurisdiction to draft a New Zealand constitution or pass it in Westminster. (English law can only be exercised on English soil).

4.15On October 28 1983 Muldoon (during a constitutional crisis) took letters patent 1917 and 1918 from King George V. The Governor General was constituted by these dormant letters Patent, the Executive Council put over the Governor General was Parliament who advised the Governor General to issue new Letters Patent revoking Letters Patent 1917/18, and drafting new Letters Patent. In 1986 Lange amended these Letters Patent 1983 that the Executive Council (Parliament) comes from the 1986 Constitution Act (begat by Palmer). However 1917/18 letters Patent were represented for a colony of Britain not a sovereign and still subject to British law. The 1986 New Zealand Constitution had no authority to annul the New Zealand Constitution 1852 (Imperial), Section 5 of the Imperial laws Application Act 1988 was an attempt to validate New Zealand’s governments constitution 1986 and the SWAA 1947, but had no delegated sovereign power to do so.

Part VI The Building Act 1991

4.16 The Building Industry Authority (BIA) is responsible for standards and the building Act. The BIA has been blamed for not performing its duties. Councils are being sued around the country by house owners, for issuing building consents, where their house has developed rotting floor boards etc.

4.17It is presumed that Local council are responsible for anyone if they are injured from unsafe structures (buildings). However councils are saying they are not responsible for issuing a building consent for leaking houses (unsafe structures).

4.18A new Building Act is now in force (the old one is a shambles). GDC do have the power to issue a building consent if they are satisfied it meets the Building Code of Compliance. A simple report from a certified structural Engineer saying the building is sound would suffice, (the wahi tapu is not a building for dwelling in). It is still unclear as to local governments role under the Act, and local governments exact liability needs to be specified.

Part VII The Fisheries Act 1996

4.19Section 88(2) of the Fisheries Act 1983 recognised the Treaty of Waitangi. In 1986 the NZ Crown omitted this Treaty clause. The Treaty of Waitangi Fisheries Claims Settlement Act 1992 (TOWFCS) extinguished native aboriginal title. This Act (s8) has blocked the NZ courts and tribunals from inquiring into the validity of the Act, [(breaching Article 8 of the UDHR 1948 and Article 2(3) of the ICCPR 1976)]. The establishment of customary regulations are subject to s10 of the TOWFCS Act 1992 pursuant to section 89 of the Fisheries Act 1983.

4.20These regulations are known today as the customary fishing regulations 1998 (pursuant to section 186 of the Fisheries Act 1996, which re enacts the provisions of s89 of the Fisheries Act 1983). There is a major problem with these regulations on the grounds that Tapaeururangi or Ruawaipu did not sign or agree to the TOWFCS, case law states ……

“All dealings with all the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of her Majesty’s sovereignty in the Islands. Nor is this all. They must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. [Instructions Lord Normanby to Consul Hobson 14 August 1839].