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Wheen, Nicola R --- "Foul play? Government and the SILNA forests" [2002] NZJlEnvLaw 9; (2002) 6 NZJEL 279

Last Updated: 25 January 2023


Foul Play? Government and the SILNA Forests

Nicola R Wheen*

This article evaluates the legal history of the dealings between various New Zealand governments and the owners of the SILNA forests (indigenous forests on land originally granted to Southern Maori under the South Island Landless Natives Act 1906). Recent decisions to apply the Resource Management Act’s land-use controls to SILNA land, in conjunction with the government’s current approach to the SILNA land owners are open to criticism. The problems with this approach have less to do with the conservation of the forests, and everything to do with the government’s duties to the landowners under the Treaty of Waitangi.


Until recently, most of the “SILNA forests” (indigenous forests on land originally granted to Southern Maori under the South Island Landless Natives Act 1906) could be lawfully clear-felled, and the timber exported to supply a market denied by law to almost all other landowners. The reason behind this apparently preferential treatment of the SILNA landowners is simply that their land was granted to them for their economic development. Still, it was criticised both by other landowners and by conservationists since many of the SILNA blocks contain virgin forests of high conservation value.

The Forests Act 1949 and the Resource Management Act 1991 control logging in indigenous forests on most privately owned land in New Zealand. SILNA land, however, is expressly exempt from the Forests Act’s sustainable forest management controls. The Resource Management Act’s land use controls were not applied to

* BA, LLM (Otago), Senior Lecturer, Faculty of Law, University of Otago, Dunedin. I am indebted to Adam Holloway’s unpublished LLB(Hons) dissertation “Seeing the Treaty for the Trees”, University of Otago, 2000, and my colleagues Associate Professor John Dawson and Mrs Nicola Peart, for supporting the SILNA research.

any SILNA land until last year. They have now been applied to control some forestry activities in the Clutha and Southland districts.

The Government has negotiated with the owners of two SILNA blocks with particularly high conservation values. Those blocks are now protected, and the owners have been compensated for lost cutting rights under the Waitutu Block Settlement Act 1997 and the Tutae-Ka-Wetoweto Forest Act 2001. Today, a voluntary moratorium is the only thing stopping on-going clear-felling in those areas that are not protected and are not under Resource Management Act control. The Government has invited the SILNA landowners to extend this moratorium for three years until March 2005.1 It says that it plans to negotiate further with the owners of other ‘priority’ blocks with especially significant conservation value. The owners of other blocks will, apparently, be left in the hands of local authorities and the Environment Court acting under the Resource Management Act. The Government will then legislate to stop exports from all indigenous forests on SILNA land.

The landowners are not pleased. One of them has described the Government’s offer of compensation of $19.7 million over seven years as “peanuts”. He claims that the Government’s policy “... insults the mana and rangatiratanga ...” of the landowners — mainly due to lack of adequate consultation.2 Certainly the landowners have a claim to full consultation, and, from their point of view it is hard to understand a policy where landowners will be approached on a priority basis determined by the conservation value of the forests.

Investigation of the history of the SILNA blocks, and of various governments’ dealings with the landowners, clearly reveals that most have been badly treated. The Government has failed to act as a reasonable Treaty of Waitangi partner. It is good that it has at last decided to do something, but it is critical that it should now do it properly, fairly and reasonably. Furthermore, the application of the Resource Management Act to SILNA land is open to criticism. This could be both wrong, and lead to consequences that will, once again, see the Crown breaching the principles of the Treaty.


This article evaluates the legal history of the dealings between various New Zealand governments and the SILNA landowners and the judicial decisions affecting SILNA land. It begins by briefly describing the law on indigenous forestry in general, as a necessary point of comparison with forestry on SILNA land.

  1. The Government’s most recent proposals are described and criticised in the Otago Daily Times, Monday 13 May 2002 and Tuesday 14 May 2002.
  2. Otago Daily Times, Monday 13 May 2002, 1.

First, I wish to say that I believe that most if not all, indigenous forests in New Zealand should be conserved. The trees that make them up, and the plants and animals that inhabit them, are unique. Indigenous forests once covered about 85 percent of New Zealand’s landmass, but are now reduced to just 23 percent of the landmass.3 There is considerable debate amongst the scientific community as to whether these slow-growth indigenous forests can be sustainably logged.

Although significant tracts of the SILNA forests have already been lost, there are some blocks where forests remain, “... some of which [are] being heavily logged and some of which have high conservation values”.4 Forest and Bird has been lobbying on the SILNA issue for some time. The Government clearly recognises the conservation imperative, at least for some of the SILNA forests. It has already negotiated two settlements, and Parliament has enacted the Waitutu Block Settlement Act 1997 and the Tutae-Ka-Wetoweto Forest Act 2001. The 2001 Act especially represents a near-perfect solution to the “SILNA issue”. Both Acts are the outcome of negotiated settlements between the Crown and the landowners that ensure the conservation of the affected forests. The 2001 Act is better because it leaves both ownership and management in the hands of the Maori landowners.

The Government has further persuaded many of the landowners to stick to a moratorium on logging, and has now asked that the moratorium be extended for another three years. In conservation terms, this is all good news. The problems with the Government’s latest offer, and the decision(s) to apply the Resource Management Act’s controls in the Clutha and Southland Districts have less to do with the conservation of the forests, and everything to do with the Government’s duties to the landowners under the Treaty of Waitangi.


The first steps in protecting indigenous forests were taken in the 1980s. Outrage over logging in Crown-owned forests in North Westland, on the West Coast of the South Island, generated the West Coast Accord in 1986. “This agreement, between the Crown, conservation organisations, production interests, and local authorities, provided for the protection of some areas in exchange for continued clear-felling, or long-term sustainable management of others.”5 Two further Accords were signed

  1. Ministry for the Environment, The State of New Zealand’s Environment, 1997, 8: 27.
  2. Maturin, S., Royal Forest and Bird Protection Society Press Release, 4 August 2000, 1. <http://> .
  3. Milne, C.D.E. (ed), Handbook of Environmental Law (1992) 225.

between conservation organizations and industry groups logging privately owned forests in 1989 and 1991.6

When the new Department of Conservation was created under the Conservation Act 1987, the greater majority of New Zealand’s publicly owned indigenous forests were transferred into its care, to be managed “... for conservation purposes”.7 The old, “production-driven”8 New Zealand Forest service was dismantled. Some Crown-owned forests (particularly the vast West Coast production forests) were held back for further logging, and subsequently transferred to new state-owned enterprises, which were instructed to operate as successful businesses.9

Privately owned indigenous forests were unaffected — at least until 1989 when the Labour Government adopted a general policy for the sustainable use of all indigenous production forests in New Zealand. In the interim, it implemented this policy simply by controlling exports of indigenous timber and timber products under the Export Prohibition Regulations 1953. In effect, exports were banned, unless the timber had been produced from forests managed under an approved sustainable management plan, or unless the Minister had exempted the specific export in question. Exports of timber from SILNA land were routinely exempted.10 In 1991, The Resource Management Act was enacted to promote the sustainable management of all natural and physical resources. This Act’s land use controls can clearly apply to forestry activities on both public and private land. Since these controls are expressed in practice through the implementation of plans by local government, they took some time to have a practical effect, especially in some districts. Of more immediate effect was the decision to amend the Forests Act 1949 in 1993. The purpose of the introduced Part IIIA is to “... promote the sustainable forest management of indigenous forest land” (s 67B). The Act prohibits the milling and export of most indigenous wood-products, unless the timber has been harvested in accordance with a sustainable forest management

plan or permit.11

Thus, by 1993, the situation was that most Crown-owned indigenous forests were included in the conservation estate, although some (particularly the West Coast production forests) were still being logged. The West Coast forests were

  1. Being the Tasman and New Zealand Forest Accords, respectively. The Minister of Conservation was also a party to the former.
  2. Conservation Act 1987, s 6(a).
  3. Milne, supra note 5, at 224.
  4. State-Owned Enterprises Act 1986, s 4.
  5. Exemptions for timber from SILNA forests were issued routinely when the 1953 Regulations were being used (Alan Johnston Sawmilling Ltd v Governor-General [2002] NZAR 129, 136; (1999) 1 NZCC 129, 133). ‘Routine’ in the sense that exemptions were allowed on application. Within the period March 1991 to October 1995, 12 shipments of SILNA wood chips were exported from Southland, involving the clearance of approximately 1,800 hectares of indigenous forest.
  6. See ss 67C and 67D.

taken out of production and moved into the conservation estate in 2000 and 2001.12 As for almost all privately owned forests, logging could be regulated under the Resource Management Act, and was directly controlled via the exports and milling restrictions in the Forests Act. The SILNA forests, however, were expressly exempt from the Forests Act.13 Furthermore, local authorities seemed reluctant to apply the Resource Management Act’s wider controls to these particular forests. Logging on SILNA land continued, free from the controls applied to indigenous forests on other private land.


The “SILNA forests” grow on land allocated to the original Maori grantees under the South Island Landless Natives Act 1906.14 This Act was a response to an investigated need among Southern Maori for land to use to generate a living or income.15 Some say that the land was “compensation” for wrongs done by the Crown (that in turn caused or led to the established landlessness of the affected Maori), others that the land was a “gift” from the Crown, given simply as a matter of practical welfare.16 Claims that the original land allocations breached the principles of the Treaty of Waitangi were settled by the Ngai Tahu settlement, which was implemented in the Ngai Tahu Claims Settlement Act 1998.

“Gift” or “compensation”, the simple fact that the lands were granted “... for [the] economic development” of the grantees explains why they were exempted from the Forests Act’s sustainable forest management regime in 199317 and the Export Prohibition Regulations when they were being used to control exports to

  1. Forests (West Coast Accord) Act 2000. 13 Forests Act 1949, s 67A(1)(b)(i).
    1. Repealed by the Maori Land Act 1909.
    2. The Act was largely a product of reports made by the Smith-Nairn Royal Commission, 1879, and Royal Commissioner and Native Land Court Judge, Alexander Mackay in his Report on Middle Island Native Land Question (1887).
    3. The former view is quoted from Cabinet papers, with apparent approval, by Wild J in Alan Johnston Sawmilling Ltd v Governor General [2002] NZAR 129, 141. Judge Sheppard in Minister of Conservation v Southland District Council, Environment Court Auckland, A39/01, 10 April 2001, 13 accepted Crown submissions that the land grants were not compensation, but were “... more in the nature of the provision of practical welfare”.
    4. New Zealand Parliamentary Debates (1993) 13940, per Hon Denis Marshall. The Act itself declared that its purpose was “... to make Provision for ... Maoris in the South Island who are not in possession of sufficient land to provide for their support and maintenance ...” (Long Title and s 2). Further support can be found in the Alan Johnston case, supra note 16 at 135 and Cabinet papers reproduced in the case. This does not necessarily mean that the land must be used for forestry, Minister of Conservation v Southland District Council, Environment Court, Auckland, A39/01, 10 April 2001, 13.

promote sustainable forestry.18 It does not, however, explain why, when the 1953 Regulations were revoked in 1996, the Crown replaced them with a new regulation to “... remove or defeat the s 67A(1)(b)(i) [Forests Act SILNA land] exemption”.19 This new regulation20 which prohibited indigenous timber exports unless they were obtained in accordance with the Forests Act, or had been specifically authorised by the Minister, was found to be illegal precisely on the ground of repugnancy to the Forests Act in Alan Johnston Sawmilling Ltd v Governor- General.21 What is more, the Judge in this case also found that the regulation had been made for an improper purpose (promoting the sustainable management of SILNA forests, or improving the Government’s negotiating position vis a vis the

landowners),22 and was in breach of the Bill of Rights 1688.23

Following the decision in Alan Johnston Sawmilling, the Government introduced the Forests Amendment Bill to Parliament in July 1999. It has not been enacted, but if it were to be it would repeal the Forests Act’s SILNA exemption and limit the Crown’s liability to provide compensation to the landowners.24 The Minister of Conservation in the previous government said the Bill would only have effect “... when it has been agreed to between [SILNA landowners] and the Crown”.25

Meanwhile, some blocks of SILNA land with especially high conservation value were protected by negotiated settlement with the landowners. The first settlement was implemented in the Waitutu Block Settlement Act. This Act provides for the land to remain in the hands of its existing owners, but to be administered by the Department of Conservation in consultation with the landowners as if it were a national park.26 It protects certain rights of the landowners, including rights to erect accommodation on, and remove vegetation and take traditional foods from the land.27 Under the settlement, the landowners were compensated for lost cutting rights to the value of NZ$18 million.

  1. See supra note 10.
  2. Alan Johnston case, supra note 16, at 143.
  3. Being regulation 4 of the Customs Export Prohibition Order 1996, made pursuant to s 56 of the Customs and Excise Act 1996.
  4. Supra note 16, at 142–144.
  5. Whereas the purpose of the Customs and Excise Act 1996 is to control the export of products rather than their manner of production (see Alan Johnston case, supra note 16 at 146).
  6. Alan Johnston case, supra note 16, at 145.
  7. Compensation will be limited in respect of any diminution in the value of forestry contracts over SILNA land, or of the land itself, resulting from its prohibition against exports of unsustainably harvested timber, see cl 25 of the Bill.
  8. Hon Nick Smith, quoted in SILNA Hui — Rehua Marae: Summary of Proceedings (1999) 4–5.
  9. Waitutu Block Settlement Act 1997, ss 5 and 9.
  10. Waitutu Block Settlement Act 1997, s 5(2)(a) and cl 3 of the Deed of Covenant reproduced in Schedule 2.

The second settlement was implemented in the Tutae-Ka-Wetoweto Forest Act 2001. This Act again preserves the existing ownership of the land and forest (in Rakiura), but places qualifications on that ownership:28

by stipulating that Rakiura must prepare a management plan [to] implement the objectives set out in cl 3, and give effect to cl 4, of the [settlement agreement]. In summary, cl 3 states that preservation, protection, public enjoyment and freedom of access must be achieved in the management of the Forest [and] recognises the rights of the owners to continue to practice their customary rights. Clause 4 reinforces cl 3 by addressing management details ...

Again, the landowners were compensated for lost cutting rights, this time to the tune of NZ$10.9 million.

In 1999, the Government persuaded groups of the SILNA landowners to apply a voluntary moratorium to halt logging in forests identified as having particularly high conservation value. The moratorium apparently expired on March 31, 2002. The Government is now seeking to extend them until 2005, while the Nature Heritage Fund negotiates conservation settlements to protect “priority” SILNA blocks. Priority is to be determined according to conservation status. Other “non- priority” forests will apparently be moved into sustainable management regimes under the Forests Act or the Resource Management Act.29

In 2001, the Environment Court confirmed that the Southland District Council had the power under the Resource Management Act to control the removal of indigenous vegetation from SILNA land under its jurisdiction in Minister of Conservation v Southland District Council.30 Although not subject to the same dual system of controls that applies to other privately owned indigenous forests,31 logging on some SILNA land is now controlled.

  1. Ruru, J., “Managing Private Land for the Public Benefit: The Tutae-Ka-Wetoweto Forest Act 2001” (2002) 4 BRMB 105, 106.
  2. This is all based on reports in the Otago Daily Times, 13 May 2002, 3. I draw the implication that the remaining blocks will be drawn into the Forests and Resource Management Acts regimes from the announcement that the Government will assist the landowners to develop sustainable management plans with the Ministry of Agriculture and Forestry, and will fund the Ministry for the Environment to support councils on Resource Management applications affecting SILNA forests.
  3. Environment Court, Auckland, A39/01, 10 April 2001.
  4. In other privately owned forests, logging may be controlled under the Resource Management Act and, if done for milling or export purposes, will also be controlled under the Forests Act.


1. The Southland Case: The Forests Act and the Resource Management Act

In the Southland case the Maori Trustee, trustee for 5,079 beneficial SILNA landowners, challenged a rule in the Southland District Plan.32 The rule purported to control the destruction, modification or removal of significant indigenous vegetation on all land, including SILNA land, in the Southland district. The Trustee argued that SILNA land should be exempt from the rule. This was based on an assertion that the Council lacked jurisdiction under the Act to control forestry on the land.33 The Trustee said that the Forests Amendment Act 1993 created an “... exception to the general power [under the Resource Management Act] to make rules in district plans, by curtailing the power to make rules affecting the [Forests Act, s 67A SILNA] exemption”.34

The Court answered this by applying the general legal principles of implied repeal. It found that the two Acts are able to “... stand together, each having its effect without creating conflict”,35 that there was no intention in the Forests Act Amendment Act to create an implied exemption to the Resource Management Act.36 These findings were based largely on four points: the lack of an exemption in the Resource Management Act for SILNA land; the different approaches of the Forests and Resource Management Acts; s 67V of the Forests Act; and the Court’s view that controls over vegetation clearance were not inconsistent with the purpose of the land grants.

The reliance placed on the Forests Act, s 67V is questionable. This section provides:

Before cutting or felling any indigenous timber pursuant to a sustainable forest management plan, the owner shall obtain the resource consents (if any) required under the Resource Management Act for that activity.

The Environment Court saw this section as expressly stating that authority “... for milling certain indigenous timber under [the Forests Act] does not imply that

... felling that timber is immune from ... control under the [Resource Management] Act”.37 It held that a finding that the Forests Amendment Act was inconsistent with or “... intended to create an implied exception to ... the Resource Management

  1. The Maori Trustee’s interests are described in the Southland case, supra note 30, at 3.
  2. Southland case, supra note 30, at 10.
  3. Southland case, supra note 30, at 22.
  4. Southland case, supra note 30, at 23.
  5. Southland case, supra note 30, at 22.
  6. Southland case, supra note 30, at 22.

Act [for the] felling of indigenous timber, the milling or export of which is regulated by [the Forests Act], would conflict with s 67V”.38

All of this is true, but provides little assistance on the issue of SILNA land. Exports and milling of timber from SILNA forests do not occur pursuant to sustainable forest management plans because the sustainable forest management regime does not apply to them. Section 67A of the Forests Act means s 67V does not cover SILNA land. So s 67V simply does not address the applicability of the Resource Management Act to SILNA land.

Also questionable is the Court’s view that controls over vegetation clearance do not conflict with the purpose of the land grants. The Court said that the grant of land to enable the grantees to provide for their support and maintenance:39

is not inconsistent with application to those lands of the district rules regulating clearance of indigenous vegetation. The proposed rules would not prohibit that activity, but would control it for the general purpose of the [Resource Management] Act.

Although the rule does just control and not prohibit, the control it exerts is more comprehensive than that exerted by the Forests Act.40 SILNA land was exempted from the application of that Act precisely because the land had been provided “... for [the] economic development” of the grantees.41

What is more, it is hard to see how the owners can have been intended to provide for their economic development from the land without using the trees. Much of it was, and a lot still is, covered with forests. It has always been “... of poor quality for farming”.42 At the time of the grants, the forests had little economic or conservation value. Today this has changed, but long-term sustainable forestry is complicated by the fact the blocks of land themselves, and their ownership, are fragmented. The land was, and is, inalienable.43 Selling or leasing it to provide financial resources was, and is, not an option.44

  1. Southland case, supra note 30, at 23.
  2. Southland case, supra note 30, at 23.
  3. Under the Resource Management Act, the clearance of indigenous vegetation can be controlled in order to promote the sustainable management of all natural and physical resources (excluding minerals), including the forest. The Forests Act’s controls apply only where the clearance is for milling and/or export, and then are about managing the forest so as to maintain its yield and natural values.
  4. See supra note 17 and accompanying text.
  5. Weaver, S., “Protecting Maori Forests” (2000) NZ Political Review 18, 19 and see generally the Waitangi Tribunal’s Ngai Tahu Report (1991) 993–1001.
  6. See infra notes 79 and 80 and accompanying text.
  7. This is obviously quite apart from any non-economic reasons the landowners might have for not selling.

The lack of an express exemption for SILNA land in the Resource Management Act is hardly determinative. At the time the 1991 Act was enacted, timber from SILNA land was being routinely exempted from the Export Prohibition Regulations 1953. The exemptions were continued when the Forests Act was amended in 1993. Since the policy was to exempt, if it had been obvious the Resource Management Act would change this, surely something would have been said.

Instead it seems the implications of the Resource Management Act for activities on SILNA land were not obvious or controversial. In fact, the implications of the Act for forestry anywhere may not have been immediately apparent.45 Otherwise, what need would there have been to amend the Forests Act in 1993? Indeed, as the Court itself recognised in the Southland decision, the decision to amend the Forests Act was “... the Crown’s response to uncontrolled felling of indigenous trees ...”.46

The fact that the two Acts can “... stand together ...” in a general context says little about their compatibility on the precise issue of logging in SILNA forests. The two Acts obviously apply different principles: the Resource Management Act controls all uses of natural and physical resources. The Forests Act controls exports and milling, and applies only to forests. But can the two Acts stand together in respect of SILNA logging?

If the Resource Management Act applies, is there any point or benefit to the s 67A Forests Act exemption? It allows timber harvested unsustainably from SILNA land to be processed and exported. But if the Resource Management Act applies, the trees should only be harvested in a way or at a rate that promotes not only the forests’ sustainable management, but also that of other natural and physical resources, and minimises adverse environmental effects. This will be applied (as has been the case) using rules in district and regional plans, and resource consents. There is little point in being able to mill or export trees you are not allowed to cut down.

So there are clear flaws in the Environment Court’s reasoning supporting its decision to affirm the Council’s jurisdiction to make the rule controlling indigenous vegetation clearance on SILNA land. These flaws go on to undermine part of the Court’s reasoning on the landowners’ claims about s 8 of the Resource Management Act.

  1. At least it appears that existing forestry law was not considered in the body of working papers drawn up during the extensive resource management law reform process that preceded the enactment of the Resource Management Act.
  2. Southland case, supra note 30, at 16.

2. The Southland Case: Section 8 of the Resource Management Act

The Trustee also argued that the rule controlling the destruction or removal of significant indigenous vegetation on SILNA land in the Southland district breaches s 8 of the Resource Management Act.47 This section requires “... all persons exercising functions and powers under [the Act] ... [to] take into account the principles of the Treaty of Waitangi”. This clearly includes both the District Council and the Environment Court.48

Specifically, the Trustee said: “... preventing the landowners from utilising their land in any matter which would otherwise be permitted ... as a result of the exemption from ... the Forests Act’ would breach the Treaty principle of partnership;49 and that the rule amounts to a ... breach of trust [because it fails] to take into account that the land was granted for the economic benefit of the Maori owners”.50

The Environment Court rejected this for four reasons. The first had to do with the Court’s view of the relationship between the Forests and Resource Management Acts. It repeated its (contestable) refusal to accept “... that the exemption of SILNA lands from ... the Forests Act has anything to do with the District Council’s function and powers under the Resource Management Act”.51 The Court’s second reason was based on the place and meaning of s 8 within

the Resource Management Act: “[t]he ... Act has a single purpose [s 5] ... the provisions of sections 6 to 8 are subordinate and accessory to [it]”.52 It took the view that:53

[i]n considering a resource consent application [under the rule], the economic and cultural interests of Maori people (including owners of SILNA lands) affected by the proposed clearance would be able to be the subject of evidence and consideration by the consent authority. Those interests would not necessarily prevail in all cases. However the features of the process[54] would ensure that they would be given due weight.

  1. Southland case, supra note 30, at 24.
  2. Southland case, supra note 30, at 26.
  3. This requires the Crown to act towards the Maori race .. “with the utmost good faith which is the characteristic obligation of partnership” Southland case, supra note 30, at 27, quoting New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).
  4. Southland case, supra note 30, at 27.
  5. Southland case, supra note 30, at 27.
  6. Quoting Mahuta v Waikato Regional Council, Environment Court Auckland, A91/98, 29 July 1998.
  7. Southland case, supra note 30, at 46.
  8. The Court refers to para 193 of its decision, but it must mean para 196 (p 45). Therein, it said: “... the process for considering a resource consent application is prescribed by law, is carried out in public by an elected public authority (or its delegate), a written decision is given with reasons, and is subject to rights of appeal to this Court”.

This is all thoroughly consistent with the case law on s 8. The problem, however, is that s 8 may itself be a breach of Treaty principles. The Waitangi Tribunal has cited the Act’s failure to include “... any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty ...” as a breach of the Treaty.55 This, of course, is not an issue that the Environment Court could consider, but it is properly within the jurisdiction of the Tribunal.56 So are the Court’s other two reasons for rejecting the Trustee’s argument that the District Council’s rule breaches s 8.

The Court’s third and fourth reasons were more substantive and were linked. The Court held that rule does not breach good faith or the principle of active protection, since it controls (as opposed to prohibits) and “... to the extent that [does so, it] is an exercise of [the Crown’s] Treaty right to govern”.57 The Court emphasised that the rule’s controls would regulate land-use “... in a way that allows for the circumstances and effects of ... proposal[s] to be considered by elected officials against stated criteria, and for a clearly stated public purpose, with a right of appeal to an independent Court with membership appropriate to its task”.58 This reasoning can be challenged, and the appropriate forum is the Waitangi Tribunal.

3. The Treaty of Waitangi Claims in the Waitangi Tribunal

The SILNA landowners have a live claim before the Tribunal in which they say: “... the Crown’s ... policy on indigenous forests ... is depriving [them] of an economic base ... and ... the actions of the Crown ... constitute a derogation from and an affront to [their] Rangatiratanga”.59

The Tribunal is empowered to investigate claims of prejudice suffered by Maori resulting from any Crown policy or action, or any Legislation, that breaches the principles of the Treaty of Waitangi.60 Clearly this includes the rule, the Resource Management Act itself, and any other Crown actions, policies or legislation affecting SILNA land. The Tribunal is not bound by Environment Court findings and has exclusive authority to determine the meaning and effect of the Treaty’s principles for the purpose of exercising its powers.61 Its remedial

  1. This quote is from the Waitangi Tribunal’s Ngawha Geothermal Report (1993) 146, (emphasis added), but has been made elsewhere: see, for example: Ika Whenua Rivers Report (1998) 141.
  2. Although the Environment Court is not subject to investigation by the Tribunal, the Resource Management Act is, see, for example, Waitangi Tribunal, Mohaka River Report (1992) 66–67.
  3. Southland case, supra note 30, at 28–29.
  4. Southland case, supra note 30, at 28. 59 Wai 158.

60 Treaty of Waitangi Act 1975, s 6. 61 Ibid, s 5(2).

powers are limited to recommending that the Crown take action to remove the prejudice it has caused.

The Tribunal agrees with the ordinary courts (and the Environment Court) that, in principle, the Treaty “... must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources”62 and that “[t]he cession of sovereignty or kawanatanga gives power to the Crown to legislate ... for conservation control”.63 But, the Tribunal has also repeatedly emphasised that these Crown rights, deriving from the Article I of the Treaty, are not absolute. In the Ika Whenua Rivers Report, the Tribunal observed: “... the right to govern which [the Crown] acquired was a qualified right”.64 In the Mohaka River Report, the Tribunal said that the right of the Crown to legislate for conservation control “... is not an authority to disregard or diminish the principles in article the second, or the authority of the tribes to exercise control”.65 Ngai Tahu Sea Fisheries Report, it held that before making laws for conservation, the Crown should “... first consult with Maori on proposed conservation measures and ensure that Maori interests are not adversely affected, except to the extent necessary to conserve or protect

the resource”.66

The Crown has consulted directly and negotiated with some of the landowners, but consultation with the rest has been fragmented and largely conducted against the backdrop of the Crown’s unilateral power — and, at times, actual readiness

— to promote or use existing law to control the logging. The Export Prohibition Regulations were made without prior consultation, even though in this particular instance the Crown probably had a general legal duty to consult.67 And, although the Minister of Conservation in the last Government promised that the Forests Amendment Bill (that would repeal the s 67A exemption) will only have effect with the landowners’ agreement,68 the Resource Management Act was applied to SILNA land without any direct consultation between the Crown and the

  1. Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553, 558 (CA).
  2. Waitangi Tribunal, Muriwhenua Fishing Report (1988) 232. Emphasis added.
  3. Waitangi Tribunal, Ika Whenua Report (1998) 105.
  4. Waitangi Tribunal Mohaka River Report (1992) 65.
  5. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report (1992) 272.
  6. Turners and Growers Exports Ltd v Moyle, High Court Wellington, CP 720/88, 15 December 1988, and Fowler & Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56 (CA) both support the idea that before making delegated legislation, the Crown should consult with those who will be specially and uniquely affected by the legislation.
  7. See supra note 25.

landowners. Even the most recent initiative by the Government has been put forward without adequate consultation with the landowners.69

Assuming that the SILNA landowners exercised tino rangatiratanga over the forests,70 is either its continued exercise, or are the landowners’ wider interests, adversely affected by the application of the Resource Management Act? The answer may lie at least partly in s 85 of the Resource Management Act. Section 85 provides, inter alia, that no compensation is payable in respect of any land-use controls implemented in plans under the Act. If the SILNA landowners have been deprived of their ability to use the land for their economic development they cannot be compensated. The only thing they can do is challenge the offending plan. But this must be on the ground that the plan renders the land “incapable of reasonable use”.71 The chances of sustainable use not being a “reasonable use” under the Resource Management Act (and in the context of the whole forestry regime) seems unlikely.

The owners of the Waitutu and Tutae-Ka-Wetoweto blocks were compensated for lost cutting rights when those forests were moved into the conservation estate. These two forests have been protected because of their conservation value, not because the relevant landowners were any more deserving than other SILNA landowners. Similarly, the Government’s most recent proposals include $1.6 million for negotiation of conservation settlements to protect “priority” SILNA blocks. Priority is to be determined according to conservation status. Considering the background to the SILNA land grants this seems to be a dubious basis for distinction. The focus should be on the economic loss to the landowners, and there has to be enough money to compensate all the landowners for the application of whatever controls or prohibitions are ultimately applied to the use of the forests. The landowners also have a good case that the Crown has breached its Treaty duties to act reasonably and with the utmost good faith towards its Treaty partner. This may not be apparent in the simple application of the Southland District Council’s rule to the forests, but it is hard to avoid when the whole story of the

dealings of various governments with the landowners is considered.

Most of the land losses leading to the need that the Act set out to mitigate were caused by Crown activities that breached the principles of the Treaty of

  1. According to the chairman of the Tautuku Block X Section 3C Trust, his Trust had just one meeting with a Ministry of Agriculture and Forestry representative prior to the announcement of the proposals, Otago Daily Times, 13 May 2002, 3.
  2. I admit to harbouring some reservations in relation to the lands that were granted without regard for, and inconsistently with, mana whenua. In its “environmental reports” the Tribunal usually looks for spiritual and identity associations, as well as control and use practices to confirm the existence of a taonga over which rangatiratanga was or is held.
  3. Section 85(2).

Waitangi.72 Whether the land grants were “compensation” for the Crown’s wrongdoing, or simply “gifts” made in response to a need for land is unclear.73 Nevertheless, there is a clear connection between Crown acts and omissions that breached the Treaty, the need for land, and the SILNA.

The whole idea of enabling people to provide for themselves by granting them back blocks of land that were theirs to begin with is circular. But worse, as an actual response to a real need, the Act and the grants were woefully inadequate. The land holdings allocated were smaller than had been recommended, some grants were never formally completed, holdings were fragmented, grants were made without regard to mana whenua,74 and the land granted was “wasteland”, “... well chosen by the Crown for its uselessness ...”, “... remote, inaccessible, forest clad, and of poor quality for farming”.75 In its Ngai Tahu Report, the Waitangi Tribunal had this to say about SILNA:76

[T]o appease its conscience, the Crown wished to appear to be doing something when in fact it was perpetrating a cruel hoax. ... The Tribunal is unable to reconcile the Crown’s action with its duty to act in the utmost good faith towards its Treaty partner.

These issues were of course addressed and settled in the Ngai Tahu Claims Settlement Act 1998, which purports to be a final settlement of the “Ngai Tahu claims”.77 Still, they colour and inform the Crown’s dealings with SILNA landowners since the original grants were made, and raise issues that remain live.78

Scrutiny of the Crown’s conduct since the original SILNA grants were made reveals that the Crown has not always acted in good faith, fairly, reasonably and honourably. In fact, the Crown has used law to enhance its negotiating position, and used its legislative powers unconstitutionally and illegally. Even worse, the Crown’s mismanagement of the issue has significantly contributed to the whole SILNA “situation” by promoting the clear felling of forests on the land.

  1. As was specifically acknowledged by Mackay in his report to government (supra note 15), cited in the Ngai Tahu Report at p 980, and the Ngai Tahu Report itself (supra note 42).
  2. The gift/compensation issue seems to be significant for the Crown, see “Problem of land may be over by end of year” Otago Daily Times, 1 May 2001, and Southland case, supra note 30 at 13.
  3. “Title, customary rights over land, sovereignty over land” in Kawharu, I.H., (ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (1989) 313.
  4. The quotes are from Weaver, S, supra note 42, at 19, and see generally the Ngai Tahu Report, supra note 42, at 993–1001.
  5. Ngai Tahu Report, supra note 42, at 999–1000.
  6. Ngai Tahu Claims Settlement Act 1998, s 461.
  7. Ngai Tahu Claims Settlement Act 1998, s 10.

First of all, the Crown promoted, and Parliament implemented, legal restrictions on the alienation and succession of SILNA land.79 Those restrictions continue today.80 They serve, and have served, to limit the economic options of the landowners, and increase the difficulty of making management decisions affecting the land. They could also make the on-going sustainable management of the forests more complex than it would be on other privately owned land.

Clear felling, processing, and exporting wood chip is the first significant, and economically viable, use for the SILNA land. At the time the grants were made, native timber was abundant and readily accessible. Now, other landowners (the Crown included) have largely cleared their land, and logging in the remaining production forests has been controlled. The market value of native timber has increased correspondingly, as have the opportunities for, and pressures on, SILNA landowners to clear fell their forests.

Inevitably, these factors have also increased the conservation value of the remnant forests.81 The SILNA blocks provide excellent lowland forest habitat. Approximately 30 percent of SILNA land retains its virgin indigenous forest cover, compared with an average of only 7 percent on non-Maori privately owned land.82 The higher the conservation value of the forests, the worse the landowners look when they use the land, as was intended, to generate an income. As today’s landowners say: 83

[w]hen they were valueless to the Crown there was no restriction on the use of SILNA land, indeed the express intention was that they be cleared. Now that the owners could realise some benefit from these lands, the Crown proposes to take away what it gave in 1906, lands that were ours to begin with.

Of course the Crown and Parliament both recognised why the land grants were made by exempting SILNA land from the ambit of the Export Prohibition Regulations and the Forests Act’s sustainable production regime. But the Crown was also quite clearly using the exemptions process as leverage in its dealings

  1. South Island Landless Natives Act 1906, ss 9 and 10, which provided that the land was “absolutely inalienable”, but could be leased either to another SILNA landowner for up to 21 years or to a European but only by the Governor after consultation with the SILNA landowners.
  2. The land now falls under Te Ture Whenua Maori Act 1993, s 129 which continues the restrictions described in note 79 above. Ownership has descended bilaterally from the original grantees to the extent that approximately 25,000 people now have an interest in some 57,538 ha of existing SILNA land. Establishing who these people are is difficult: most SILNA land has never been occupied and its owners are scattered throughout New Zealand.
  3. Weaver, supra note 42 at 19.
  4. Devoe, N., “Seeing the Forest for the Trees: the future of the SILNA lands”, seminar presented at He Minenga Whakatu Hua o Te Ao, Murihiku Marae, 27 August 2000.
  5. Sutherwood, J., quoted in Devoe, ibid.

with the landowners.84 Even after Parliament had expressly excluded SILNA land from the ambit of the Forests Act, the Government tried to retain its ability to control timber exports, and so its upper hand in the negotiations, by promoting new regulations in 1996.

In Alan Johnston Sawmilling, Wild J specifically found that the Forests Act exemption was a “... Parliamentary recognition of the Crown’s obligation to SILNA owners”85 and the intention of the regulations was to “... remove or defeat the exemption”.86 This was, he said, a “... plain case of the Executive making a regulation repugnant to Parliament’s expressed intention”.87 It breached the Bill of Rights 1688 by “... suspend[ing] the operation or benefit of laws passed by the Parliament of New Zealand”.88

When the 1996 regulations were found to be illegal, the Crown introduced the Forests Amendment Bill. It was introduced without consultation with the SILNA landowners. If enacted, it will repeal the Forests Act exemption and limit the Crown’s liability to provide compensation to the landowners.89

Now that the Resource Management Act has been held to have the potential to apply to SILNA land, aspects of the SILNA issue may have “gone away” from the Government’s point of view. The Government’s latest proposal is to negotiate with and compensate only the owners of priority conservation blocks. The owners of the rest may receive some assistance in adjusting to the impact of sustainable management controls. These controls will devolve from the application of the Resource Management and Forests Acts.90

The Forests Act does not even mention the Treaty of Waitangi or its principles. The Resource Management Act’s s 8 itself breaches Treaty principles. By enabling or allowing these Acts to control SILNA land use, the Crown could be breaching its Treaty duties all over again. In the Ngawha Geothermal Report, the Waitangi Tribunal said: “... the Treaty was between Maori and the Crown. ... If the Crown

  1. This motive is implicit in the statement of Government policy as at July 1996 quoted in Alan Johnston case, supra note 16 at 146. The new policy was to refuse: “... further shipments of indigenous wood-chips from SILNA lands while Government negotiate[s] with SILNA landowners”. It is also apparent in a letter from the Ministry of Forestry to the Minister of Customs (15 May 1996) (also quoted in Alan Johnston case, supra note 16, at 146–147) that expresses a concern that, without the ability to prohibit exports (and so the power to exempt) “... the Government will face much greater difficulty in negotiating for the appropriate protection and use of the [SILNA] forests”.
  2. Alan Johnston case, supra note 16, at 141.
  3. Alan Johnston case, supra note 16, at 143.
  4. Alan Johnston case, supra note 16, at 144.
  5. Alan Johnston case, supra note 16, at 145.
  6. See supra note 24 and accompanying test.
  7. This is all based on the Otago Daily Times reports, supra note 29.

chooses to ... delegate [Treaty obligations to the discretion of local authorities], it must do so in terms which ensure its dut[ies] are fulfilled.”91


Some means of completely protecting the remaining forests with sufficiently high conservation value must be implemented in a way that sees the landowners’ rights and interests properly protected, and the Crown acting fairly and in good faith. As a basic minimum, this means there should be good and full consultation, negotiation with and compensation for, all the landowners.

The landowners’ interests are not adequately protected under the Resource Management Act or Forests Act. Indeed, since the Southland decision is flawed, the applicability of the Resource Management Act is questionable in principle. Given the unique background of the land grants and the history of dealings between the two parties, it seems unfair and unreasonable for the Government to wash its hands of any of the landowners by passing them on to local authorities under the Resource Management Act and the Ministry of Agriculture and Forestry under the Forests Act.

  1. Ngawha Geothermal Report, supra note 55, at 143–144. The reaction of the local authorities involved under the Resource Management Act is not exactly promising. When the Clutha District Council decided eventually to use its Resource Management Act powers to control the extent of logging on one block of SILNA land in the Tautuku survey district, it expressly announced that “[t]his was contrary to the position council had previously adopted that activity on [SILNA] land gave rise to significant treaty-constitution issues which were not matters for the council but for central government” (Otago Daily Times, 27 April 2001). During its submissions in the Southland case, the Southland District Council formally expressed its refusal to accept that “... it must take over the Crown’s obligations under the Treaty”. When the Government announced its new policy recently, the Clutha District Council Mayor said: “[i]t is really not our battle. It is between the Crown and the landowners” (Otago Daily Times, 13 May 2002, p 3).

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