New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 12 April 2015
Challenges of Incorporating Maori Values
and Tikanga under the Resource
Management Act 1991 and the Local
Government Bill — Possible Ways Forward'
ROBERT JOSEPH' AND TOM BENNION3
INTRODUCTION - TIKANGA MAORI LEGAL PRECEDENT
Historically, the New Zealand legal system acknowledged and accommodated the inclusion of Maori values, customary laws and institutions — commonly referred to as tikanga. The non-Maori legal authority for such actions is the common law doctrine of aboriginal rights, which is an acknowledgement and acceptance of Maori values and tikanga. The other authority is the Treaty of Waitangi which recognised tikanga Maori in Article II: ...te tino rangatiratanga...o ratou taonga katoa.' The Waitangi Tribunal translated taonga katoa as 'all their valued customs and possessions." William Colenso also described an incident prior to signing the Treaty where Governor Hobson agreed to protect Maori custom in the alleged fourth article.'
Consequently, official instructions were forwarded from London directing the Governor to respect and uphold tikanga Maori within the New Zealand legal system. In 1842, Lord Stanley suggested that certain Maori institutions such as tapu be incorporated into the
1 This paper arose from a conference address delivered by Robert Joseph at the Inaugural Maori Legal Forum Conference, Te Papa Tongarewa, Wellington, 9 — 10 October 2002.
2 Research Fellow, Te Matahauariki Institute and doctoral candidate in law,
University of Waikato. Ngati Raukawa, Ngati Tuwharetoa,
Ngati Kahungunu, Ngai
Tahu, Ngati Rangitane and Pakeha.
3 Barrister, and editor of the Maori Law Review.
system.' Stanley also directed that legislation be framed in some measure to meet Maori practices including punishment for desecrating wahi tapu.' One statutory example was the Native Exemption Ordinance 1844,8 which provided that in crimes between Maori, non-Maori interference depended on Maori request. In 'mixed culture' cases, Maori convicted of theft could pay up to four times the value of goods stolen in lieu of other punishment which could be used to compensate the victim of theft and was an obvious adaptation of the institution of mum?
Perhaps the most important yet overlooked constitutional provision for the inclusion of Maori values and tikanga was s 71 of the Constitution Act 1852. Section 71 stated:
And whereas it may be expedient that the laws, customs, and usages of the Aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles 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 which such laws, customs, or usages should be so observed:
It shall be lawful for her Majesty, by any Letters Patent to be issued under the Great Seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repugnancy of any such native laws, customs, or usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding.
This section thus provided for the establishment of native districts where tikanga Maori would prevail between Maori inter se. The section was never implemented however and was subsequently repealed by the Constitution Act 19862°
6 Lord Stanley, Secretary of State for the Colonies, Memorandum, 23
7 Stanley Minute, 23 August 1842, Colonial Office Records 209/14, at 202.
9 Ordinances of New Zealand, sess. III, no. XVII.
10 For an analysis of the development and demise of s 71 of the Constitution Act 1852, see Joseph, R The Government of Themselves: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Matahauariki Institute, University of Waikato Press, Hamilton, 2002).
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In Wi Parata v Bishop of Wellington" Prendergast CJ erroneously held that Maori custom and usage, although included in s 4 of the Native Rights Act 1865, did not exist because 'a phrase in a statute cannot call what is non-existent into being. No such body of law existed."z Prendergast CJ reinforced this finding in Rira Peti v Ngaraihi Te Paku" when he held that native districts, pursuant to s 10 of the New Zealand Government Act 1846,'4 were never appointed because Maori were British subjects governed by the laws of the land and not by their usages." Maori rights under the Treaty of Waitangi and many of their tikanga values were thus marginalised and lay legally dormant until the Treaty of Waitangi Act 1975 with the establishment of the Waitangi Tribunal. The Tribunal resurrected the acknowledgement and accommodation of Maori values and tikanga in the legal system.
In 1985, in its Manukau Report," the Waitangi Tribunal considered the issue of taking water from the Waikato River at a point some miles from the sea and discharging it into the Manukau harbour, rather than allowing the water to reach the sea via the Waikato River mouth, some distance south of the Manukau harbour. The objection was entirely a 'metaphysical' one, that the mauri of the Waikato should not be mixed by human intervention in this way with the mauri of the Manukau harbour and 'dead' or 'cooked' water should not be discharged to living water that supplies seafood.
The tribunal first pointed out that 'the values of a society, its metaphysical or spiritual beliefs and customary preferences are regularly applied in the assessment of proposals without a thought as to their origin.' It continued:
11 Wi Parata v Bishop of Wellington (1877) 3 NZJur (NS) SC 79.
13 (1889) 7 NZLR 235.
14 The New Zealand Government Act 1846 was the forerunner to the New Zealand Constitution Act 1852. Governor Grey managed to have the former Act suspended, which was subsequently over-ridden by the latter. Section 10 was the equivalent to s 71 native districts in the former statute. Joseph (supra n 10).
15 Rira Peti v Ngaraihi Te Pakii (1889) 7 NZLR 235,238-9.
16 Waitangi Tribunal The Manukau Report (Wai 8, Wellington, 1985).
17 Ibid, 78.
In our multicultural society the values of minorities must sometimes give way to those of the predominant culture, but in New Zealand, the Treaty of Waitangi gives Maori values an equal place with British values, and a priority when the Maori interest in their taonga is adversely affected. The recognition of Maori values should not have to depend upon a particular convenience as when the meat industry found it convenient to introduce Halal killing practices to accommodate Islamic religious values•18
The 'current' values of a community:
are not so much to be judged as respected. We can try to change them but we cannot deny them for as Pascal said of the Christian religion, 'the heart has its reasons, reason knows not of.' That view alone may validate a community's stance.'9
Later in the report the Tribunal noted that Maori values were not opposed to development. Rather, there was a difference of emphasis from European values:
Maori society...has tempered what might have been a fundamental religious bar with a basic pragmatism, enabling modifications to the environment after appropriate incantations or precautionary steps...
We consider that Maori values ought to be provided for in planning legislation. We do not think that they should predominate over other values but we do think they should be brought into account and given proper consideration when Maori interests are particularly affected. And if Maori interests are not exclusively affected then there might at least be a search for a practical alternative if there is one, or a reasonable compromise."
18 Ibid. The halal reference recalls the period when New Zealand abattoirs killed meat in accordance with Muslim religious practices for export to Muslim countries.
19 Ibid, 124. Note the use of the word 'current' acknowledging the fluidic and dynamic nature of values generally and tikanga Maori.
20 Ibid , 123-124 .
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TIKANGA MAORI AND THE RESOURCE MANAGEMENT ACT 1991
Those provisions of the Resource Management Act 1991 (RMA) dealing with Maori issues, in particular the Maori trilogy key sections 6(e), 7(a) and 8 (see Appendix I), were enacted to enable that balancing exercise to occur.' As recognised by Judge Whiting in the Environment Court, the Maori trilogy and related provisions:
...place the Court directly at the interface between the concepts of British common law (which has its genesis in Roman law) and the concepts of Maori customary law which is founded on tikanga Maori. The Treaty promised the protection of Maori customs and cultural values. The guarantee of Rangatiratanga [sic] in Article 2 was a promise to protect the right of Maori to possess and control that which is theirs:
`in accordance with their customs and having regard to their own cultural preferences.'22
Resource consent applicants and local authorities have generally avoided a 'direct approach' to confronting Maori under the RMA until recent times. There are a number of reasons for this change to a direct approach, including:
From this direct approach, there is a growing judicial testing of the Maori spiritual and cultural paradigm including values and tikanga.
21 For a good reference on Maori RMA issues, see Majurey, P 'Environmental Issues' in New Zealand Law Society Treaty of Waitangi (New Zealand Law Society Seminar, Hamilton, August 2(x2) 31 — 63.
22 Land Air and Water Association v Waikato Regional Council, unreported, Environment Court, Auckland, 23 October 2001 (A110/01). Whiting J. at 104 (hereinafter referred to as Hampton Downs). The Court considered a proposal to establish a large engineered land disposal facility at Hampton Downs north of Waikato. The proposal received considerable opposition from the local community including tangata whenua.
The result has been a significant increase in the resources and time local authorities have had to apply to Maori issues. This has led in many cases to resource management outcomes quite different from those that occurred prior to the enactment of the RMA, when Maori cultural and spiritual values could be safely ignored or sidelined. However, while Maori values may now have entered the system, there is evidence that the system may not yet have the tools, or have developed a sufficiently informed approach, to dealing appropriately with those values.
The Environment Court has recognised the need to address tikanga Maori' in its consideration of the RMA Maori provisions and has articulated a methodology of utilising the Waitangi Tribunal:
It is one thing for a Maori to give evidence in terms of their customs and quite another thing again to give evidence that explains them. It is how customary evidence is interpreted that is the more crucial matter. The Tribunal uses expert evidence, Maori and Pakeha, for that purpose. Today, we have the benefit of anthropologists who provide just that...Moreover, today there are Maori who are able to clarify the meaning behind symbols and to impart knowledge of their customs in terms comprehensive to Europeans.'
Judge Whiting commented on this methodology:
We feel it important to set out the above. It provides an appropriate methodology for this Court's role in interpreting concepts of tikanga Maori. It answers the criticism which, at the outset of this case, was levelled by one of the parties, at the end of a lengthy hearing, by Ms Maxwell, that the Court, being a specialist Court, was without an expert in tikanga Maori. By applying the above methodology the Court can make a determination on the evidence just as it has to make determinations on many matters which are outside the professional expertise of its members.'
23 Ibid, 105.
24 Waitangi Tribunal Whanganui River Report (Wellington: GP Publications, 2000) 279.
25 Hampton Downs (supra n 22) 105.
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The RMA also recognises, in its definition of tikanga Maori that the relevant customary values and practices are those of the Maori people.
Take, for example, the debate over wahi tapu. Section 6(e) RMA provides that it is a matter of national importance to recognise and provide for 'the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.' In a number of cases, Maori opponents of developments have argued that they will affect wahi tapu covering several hectares of land. The Environment Court appears to have taken two general approaches. The first is a three-stage inquiry for claims of wahi tapu and relies heavily on a close examination of the etymology of wahi tapu.
The first is to determine, as best as we are able in the English language, the meaning of the concept. The second is to assess the evidence to determine whether it probatively establishes its existence and relevance in the context of the facts of a particular case. If so, the third is to determine how it is to be recognised and provided for. When, as in the case here, it is alleged that a site is waahi tapu, it is necessary: first to determine the meaning of waahi tapu: second to determine whether the evidence probatively establishes the existence of waahi tapu, and third, if it does, how is it to be provided for.
In addressing these steps the Environment Court had regard to the following documentary sources:
26 Winstone Aggregates Ltd v Regional Council, unreported, Environment Court, Auckland,
28 April 2002 (A80/62). Whiting J. (hereinafter referred to as Winstone Aggregates).
27 For example, the Historic Places Act 1993.
Assertions of wahi tapu have not only been met with evidence from Maori dictionaries but also Maori studies experts who claim that the term wahi tapu applies to sites which are quite limited in area and associated with some religious or ceremonial event. For example, in Winstone Aggregates the Court recorded evidence of wahi tapu by a Mr Mikaere who asserted that waahi tapu are very small specified places.'" In response, Mr Rima Herbet, the manager of the Ngati Naho Co-operative Society Limited, gave evidence defining wahi tapu as:
...physical features or phenomena, either on land or water, which have spiritual, traditional, historical and cultural significance to our people, Waahi tapu as conceived by Maori may originate from pre-contact history or from post-European history through to the present day. The waahi tapu identified up until recent times by us included cultivation areas and Maori earthworks and burial areas which are all of long-standing importance to the Maori people of our area."
Both Mr Wara and Mr Herbet, kaumatua involved in the case, rejected the narrower definition of Mr Mikaere during cross-examination. The reason given for rejecting Mr Mikaere's interpretation was that he was not from the area. The Court however accepted Mr Mikaere's definition.
In Hampton Downs, the Environment Court considered similar Maori academic evidence on the nature of wahi tapu, which was paraphrased by the Court:
In traditional Maori society a waahi tapu was a specific place —usually very small — within the tribal rohe or boundary. They were, by definition, strictly set apart from daily life because the tapu or spiritual restriction contained within such places posed dangers to all. Nobody went there or used such places for any purposes. The most authoritative source on the Maori language, the Williams Dictionary, defines tapu as:
`...under restriction or superstitious restriction; a condition affecting persons, places and things, and arising from innumerable causes. Anyone violating tapu contracted a hara, and was certain to be overtaken by calamity.'
28 Winstone Aggregates (supra n 26) 69-70.
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The definition I [Mr Mikaere] have stated here lies behind the concept of waahi tapu and identifies them as places of high spiritual and religious danger. Because of the nature of their original use; old pa sites, fortifications, earthworks, cultivations and such like cannot be waahi tapu because they are associated with secular rather than religious activities'"
This approach therefore finds that wahi tapu refers essentially only to urupa (burial grounds) and ceremonial or spiritual sites, and that the term cannot usually cover places associated with purely secular rather than religious activities such as old pa sites, fortifications, earthworks and particularly cultivations!' This approach applies standard evidential tests.' In Hampton Downs the Environment Court tested Maori academic evidence when a Mr Tukiri questioned Mr Mikaere:
Q: Would it be fair comment to say that your expertise comes more from tauiwi (foreigner) than from your own people?
A: Which particular area are we talking about?
Q: I am talking about your qualifications from university and qualifications on past mahi (occupation) that you've done.
A: The qualifications I hold are no different to qualifications any other Maori people hold issued by [the] same education institution. [I] don't see why I should be singled out because
I am lucky enough to get there. My qualifications in that particular area, if we're talking about purely in [the] Maori world I've outlined my experience and how I obtained that experience in answer to questions put yesterday. I see no reasons to change those responses ...
Q: [Is it] fair to assume [that the] position [you] currently occupied here on behalf of [the] applicant and in the tauiwi world would give evidence today and not as your Maori side?
30 Hampton Downs (supra n 22) 111. This evidence sought, in part, to rebut the evidence of a NOrti Naho kaumatua.
31 Hampton Downs (supra n 22); Winstone Aggregates Ltd & Heartbeat Charitable Trust v Franklin District Council, unreported, Environment Court, Auckland, 17 April 2002 (A80/02). Whiting J.
32 See Winstone Aggregates (supra n 26); Countdown Properties (Northland) Limited v Dunedin City Council  NZHC 67;  NZRMA 145 (HC); Te Kupenga o Ngati Hako v Hauraki District Council unreported, Environment Court. Auckland. 23 January 2001 (A 10/01). Bollard J.
A: [There are] several parts to that question, first is that this is a New Zealand rather than tauiwi institution, we are here before this institution because we support the processes of this country, when I am in this world I appear as part of this world so to speak. I cannot entirely put aside my Mdori heritage of which I am extraordinarily proud. I believe in being present here, [I] can contribute by bringing some balance to the proceedings by appellants and s 274 interveners I believe that in a number of instances those views are incorrect, they are incorrect in terms of factual accuracy, incorrect in interpretation of traditional tikanga, they do demonstrate evolution and continued evolution of Maori conceptual thinking, somebody needs to bridge the gap and I see that as my role."
The Court ultimately accepted Mr Mikaere's evidence that the site was not a wan tapu and therefore it did not have any particular cultural significance.
LOCAL PEOPLE DECIDE
The other approach for claims of wahi tapu is to leave it up to the local people to determine what the extent of their wahi tapu is, but to reject any primacy for the concept of wahi tapu, where to acknowledge it would have the effect of 'sterilising' areas of land and preventing development on them.' In Winstone Aggregates the Court addressed the contention that 'as a general principle the identification of wahi tapu is a matter for the tangata whenua':
As a general principle this may well be so. However, claims of waahi tapu must be objectively established, not merely asserted. There needs to be material of a prohibitive [sic] value which satisfies us on a balance of probabilities. We as a court need to feel persuaded that the assertion is correct.
33 Hampton Downs (supra n 22) 112-113.
34 Canterbury Regional Council v Waintakariri District Council, unreported, Environment Court, Christchurch, 25 January 2002 (C5/2002). Treadwell J; Te Runanga o Ati Awa Ki Whakarongotai Inc. & Takamore Trustees v NZ Historic Places Trust, unreported, Environment Court, Wellington, 4 July 2002 (W23/2002). Treadwell J.
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In Te Rohe Potae o Matangirau Trust v Northland Regional Council Judge Bollard and his colleague Commissioners stated that evidence of kaumatua is frequently helpful, but if challenged, the question is not to be resolved simply by accepting an assertion or belief by kaumatua or anyone else. General evidence of waahi tapu over a wide and undefined area was not probative of a claim that waahi tapu existed on a specific site."
The recent litigation over the Ngawha prison site indicates that these problems are not going away. It suggests that, if anything, the incidence of these value arguments is likely to increase. That case involved substantial expert Maori witnesses both supporting and opposing the development and discussing the effects of the proposal on the ancient pathways of a taniwha.'
RESOURCE MANAGEMENT ACT AMENDMENTS
It can also be noted that the Resource Management Amendment Bill, as currently drafted, would require decision-makers to recognise the need to protect historic heritage from inappropriate development, which includes 'sites of significance to Maori, including wahi tapu and ancestral landscapes.' This is an important issue, not just because of the requirements of the RMA 1991, but also because principles of natural justice require that people be given a fair hearing. Can that occur if the decision-making process (including decision-makers) has insufficient information about the Maori values and evidence presented?
Given such complex issues when attempting to define tikanga Maori and values in legislation generally, what are possible options to move towards a better understanding and treatment of these issues?
35 Winstone Aggregates (supra n 26) 63.
36 Beadle & Wihongi v Minister of Corrections & Northland Regional Council, unreported, Environment Court, Auckland, 8 April 2002 (A74/02). Sheppard J, PA Catchpole & OH Menzies.
37 Clauses 2 & 3.
One option is more effective consultation. The Environment Court noted that:
...the reason for consultation with Maori is their special cultural relationship with the natural resources of our environment."
This is an area in which many councils are now 'up to speed' — at least in terms of the fundamentals. Many local authorities have entered into written memoranda or agreements with local iwi. These have been titled as 'Partnership Agreement', 'Charter of Understanding', 'Memorandum of Understanding', 'Memorandum of Agreement' , 'Memorandum of Partnership' , 'Agreement of Understanding' and 'Operating Protocol.' They have no particular legal status, but do indicate the intent of councils and iwi to work together and to exchange information about applications for resource consents at an early stage." That means that issues will be highlighted at an early stage and the potential for misunderstandings reduced. However, it still means leaving the local authority as the recipient of the 'problem' of Maori values, with Maori watching on as the Council attempts to resolve the issues.
That may change however, if the Local Government Bill 2002 is passed in its present form. A key objective of the new legislation is to clarify the relevance of the Treaty of Waitangi to the work of local government. The legislation avoids a general reference to the Treaty of Waitangi, such as in s 8 of the RMA 1991." Instead, the proposal is to set out the situations in which consultation with Maori communities is required, and provides the opportunity for Maori seats on local authorities. Key provisions in this regard are:
38 Hampton Downs (supra n 22) 120.
39 Twenty-five of them are analysed in an interesting article by Grant Hewison, a Manukau City Council officer. See: Hewison G "Agreements Between Maori and Local Authorities" Maori Law Review (December 1999/January 2000) 1.
40 In this respect it follows the New Zealand Public Health and Disabilities Act 2000. See also Palmer, M 'The Treaty of Waitangi in Legislation'  NZU 207.
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the principles of the Treaty of Waitangi, and with a view to maintaining and improving opportunities for Maori to contribute to local government decision-making processes' (c1 4).
`In making significant decisions relating to land and bodies of water, take into account the relationship of Maori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga' (c162).
Local authorities must also 'establish and maintain' processes to enable Maori to contribute to local authority decision-making processes, and `consider' ways of fostering the Maori capacity to make such a contribution, and provide 'relevant information' to Maori for this purpose (c1 63). When undertaking any consultation, local authorities must, among other things, 'have in place appropriate processes for consulting Maori' (cl 66(1)(c)). While patiently waiting for this legislation, other avenues exist under the RMA 1991 to obtain a better understanding of Maori values and better ways of dealing with them.
IWI MANAGEMENT PLANS
Iwi management plans are another source of information about values held by Maori communities. These plans however do not seem to have had the impact that was possibly expected when the RMA 1991 was passed. One sign of this is that there is almost no case law on the issue.' The requirements of iwi management plans are that regional councils in preparing regional policy statements," regional councils in preparing regional plans," territorial authorities preparing district
41 There appears to be, for example, only one case in which the Environment Court has suggested that an iwi management plan might be appropriate — and that is in an area entirely owned by Maori — Whakarewarewa Village Charitable Trust v Rotorua District Council, unreported, Planning Tribunal, 25 July 1994 (W61/94). Kenderdine J.
42 Resource Management Act 1991, s 61(2)(a)(ii).
43 lbid, s 66(2)(c)(ii).
plans," or changes to such documents `shall have regard to' `[a]ny...relevant planning document recognised by an iwi authority affected by the [regional policy statement/regional plan/district plan]: This has been given the shorthand of `iwi management plan.' There is no definition of that term in the Act however.
`Iwi authority' means `the authority which represents an iwi and which is recognised by that iwi as having authority to do so.'" It is arguable that iwi includes hapu. The Act defines 'mina whenua' as `customary authority exercised by an iwi or hapu over an identified area.'" And tangata whenua' means `in relation to a particular area...the iwi, or hapu, that holds mana whenua over that area." The Te Puni Kokiri document on iwi management plans, Mauriora Ki Te Ao, also recognises that `it is often hapu who deal with environmental issues within iwi.'
The original proposal for these plans was that they would generally provide guidance to authorities on the meaning of kaitiakitanga and the law could require them to be taken into account where plans or policy statements were made or where resource consents were granted. It was also envisaged that they would provide detailed guidance on preferences for the use of iwi land in each district and would in effect become a district plan for iwi land, and would be treated as a proposal for a plan change. It also seems that the reference to 'any...relevant planning document recognised by an iwi authority,' rather than a stricter definition, was an attempt to recognise that such plans could be created in different ways and take different forms from district to district.'
There are several reasons why they have not perhaps been as prominent as might have been expected:
44 Ibid, s 74(2)(b)(ii).
45 Ibid, s 2.
48 Te Puni Kokiri Mauriora Ki Te Ao (Wellington: Ministry of Maori Development, 1993) 7.
49 Ministry for the Environment, People, Environment and Decision-Making: The Government's Proposals for Resource Management Law Reform: Te Whakatau Hou a to Kawanatanga (Wellington: Ministry for the Environment, 1988) 32-34; and Dr KA Palmer 'The Planning System and the Recognition of Maori Tribal Plans' in Te Tahuatu o Te Taiao: The Resources Management Law Reform Group Resource Management Law Reform: A Review of the Laws for Manaing Air, Land and Water Use and Mining (Wellington: Ministry for the Environment, 1998).
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There is a proposal in the Resource Management Amendment Bill to change the requirement to 'have regard to' iwi management plans in each instance to 'take into account' — which would definitely give them greater status as planning documents. However, on controversial topics (i.e. where they conflict with district or regional plans) one can still imagine that they will be treated with caution, as not coming through the full planning processes in terms of participation.
50 Marlborough Ridge Ltd v Marlborough DC  NZEnvC 322; (1997) 3 ELRNZ 483;
Winstone Aggregates Ltd v Papakura DC, unreported, Environment Court.
Auckland, 14 August 1998 (A96/98). Whiting J.
51 Ngati Kahu v Tauranga DC  NZRMA 481 Bollard J, Dr AH Hackett & IG McIntyre.
52 See Resource Management Act 1991, ss 168 and 171.
MAORI HEARING COMMISSIONERS
One obvious way to better inform decision-making where Maori values are raised is through the use of Maori commissioners. Commissioners are generally used when the Council has a particular interest in the application and the specialist environmental subcommittee of the Council is not suitable. Legislative requirements may also require a commissioner hearing (e.g. s 223CA Local Government Act 1974 dealing with water permits required by the council's water supply body). They may also be used where a council believes that specialist knowledge is required, or sometimes on request from an applicant for resource consents who perceives a possible council conflict over the project.
One issue that has limited the use of Maori commissioners until now has been a concern about actual or perceived bias. The dilemma is how to obtain the most knowledgeable people in a region without picking people whose local tribal links and knowledge are such that they may appear to be biased. The very expertise for which a Maori commissioner might be sought will often consist of their close links to and understanding of iwi, hapu or whanau of the area. People of standing who might be used as Maori commissioners usually have significant kinship or whakapapa links to several iwi in the region —this is partly how their standing arises. Among iwi/hapu/whanau themselves there may be a concern about apparent bias.
In terms of practice, the Wellington Regional Council has used Maori commissioners when it was considering water supply issues on the Kapiti Coast and on the Whanganui River. Most recently, a Maori commissioner was one of the commissioners who turned down discharge consents for the Ngawha prison, which was subsequently overturned."
SECTION 33 TRANSFERS OF POWERS
Section 33 RMA was hailed as a significant section when it was introduced. A sign of this is the fact that the New Zealand Coastal Policy Statement 1994 noted that, where characteristics have been identified of special value to tangata whenua, the local authority should consider:
53 See Beadle & Wihongi v Minister Of Corrections & Northland Regional Council, supra n 36.
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However, to date, no transfers have
occurred (at least in the North Island as far as the authors are aware). A
reason for this situation
is because of the requirements of the legislation,
which set up preconditions, and procedural requirements that are onerous. The
essential elements of s 33 are that a local authority (i.e. a regional council
or a territorial authority) with 'functions, powers,
or duties' under the RMA
1991, may transfer them to another 'public authority'
which includes an authority,' government department, or
statutory authority, as well as other local authorities. The transferor local authority and the transferee public authority must agree that the transfer is desirable because it is:
The requirement that an appropriate community of interest must be represented and that the transfer is 'efficient' suggests that transfer to an iwi authority would probably need to be in relation to a limited physical space rather than some general authority over a part of a district or region. If the iwi owned a place or resource the requirements for a transfer would be more easily satisfied. There is no requirement to provide resources with the transfer but that could be a matter of agreement between the authorities however.
54 Policy 2.1.3.
In terms of the procedure, the local authority must notify the Minister for the Environment of the proposal to transfer. The local authority must use the 'special consultative procedure specified in s 716A Local Government Act 1974. The special consultative procedure requires that the proposal to transfer powers must be publicly notified, and public hearings held at which submitters may be heard. Copies of all submissions received must be made available to the public." The local authority must give proper consideration to the submissions, but is not bound to follow them." There is no formal appeal process in the RMA if a local authority refuses a request for a transfer.
Even after functions and powers are transferred, the local authority remains responsible for their exercise.' This suggests that the local authority have to keep a close eye on the activities of the transferee. It will want to avoid actions being taken against it, and costs being incurred from poor decisions. A transfer of powers may be changed and withdrawn at any time by the local authority, or relinquished by the public authority. The above points indicate most of the reasons why transfers of powers to iwi authorities have not been advanced.
One can foresee other problems. Where an iwi or hapu group has taken a view over a particular proposal then it will not be possible to propose a s 33 transfer of powers to the group in relation to that proposal, since they are already a party with a particular view on the proposal.' If an iwi authority has in the past taken a particular view on how that resource should be used, would that make it more difficult to transfer powers over that resource to that authority?
Finally, under the present regime, would iwi even want such a transfer? If an iwi authority has a s 33 transfer of power in relation to a resource, it will have to act judicially — that is, fairly and impartially and in accordance with the RMA and relevant plans — when it considers any applications relating to that resource. For example, it will have to weigh Maori concerns in balance with other matters of national importance. It will also be bound by decisions of the Environment Court and other courts on the way in which Maori interests are to be considered under the RMA,
55 Local Government Act 1974, s 716A.
56 Urlich v Wellington City Council, unreported, High Court,
Wellington, 29 July 1996 (CPI74/96). McGeehan J.
57 Resource Management Act 1991, s 33(3).
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Jurisprudence Volume 6 Issue 1 2002-2003
even if it disagrees with the approach and result of those decisions." And its decisions may be appealed to the Environment Court. Given the criticism by the Waitangi Tribunal in the Whanganui River Report and other reports that the RMA 1991 generally does not given Maori interests sufficient priority, an iwi authority given powers under the RMA over a resource which it does not own may fmd its task a difficult one.
CHANGING THE JUDGES
There is also the controversial suggestion from the Privy Council that the pool of decision-makers at the Environment Court level ought to include people able to deal appropriately with Maori values:'
Counsel for the appellants made the point that at present there are no Maori Land Court Judges on the Environment Court and only one Maori Commissioner out of five. In a case such as the present that disadvantage may be capable of remedy by the appointment of a qualified Maori as an alternate Environment Judge or a Deputy Environment Commissioner. Indeed more than one such appointment could be made. Alternate Environment Judges hold office as long as they are District Court or Maori Land Court Judges; Deputy Environment Commissioners may be appointed for any period not exceeding five years. It might be useful to have available for cases raising Maori issues a reserve pool of alternate Judges and Deputy Commissioners. At all events their Lordships express the hope that a substantial Maori membership will prove practicable if the case does reach the Environment Court.
That case concerned a designation across Maori freehold land. There is no indication that the government has determined to act specifically on this issue however.
Against this we may contrast the Court of Appeal approach in Watercare Services Ltd v Minhinnick,' where that court was asked to support the notion that, when considering whether the piping of sewage over wan tapu was `...offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the
59 For example. Watercare Services Ltd v Minhinnick  NZRMA 113, considered
6(1 McGuire v Hastings District Council [200 I] NZRMA 557 para 28 per Lord Cooke.
61  NZRMA 113.
environment.' The appropriate test was what the ordinary Maori person would find objectionable. The Court of Appeal rejected that view, finding that the relevant test was that of the 'ordinary person, representative of the community at large' — presumably no matter how ignorant that community might be of Maori values, or, more importantly, its own hidden assumptions and prejudices.
TESTING THE EVIDENCE
TE MATAPUNENGA PROJECT
Resorting to dictionaries and documentary sources to prove or disprove the existence, extent and scope of tikanga Maori in a particular area tends towards the academic and away from the determinative spiritual and cultural context of Maori. As Metge notes:
To come to grips with Maori custom law, it is necessary to recognise that Maori concepts hardly ever correspond exactly with those Western concepts which they appear, on the surface, to resemble. While there is a degree of overlap, there are usually divergences as well. Even if the denotation — the direct reference — is substantially the same, the connotations are significantly different."
Hence those qualified to articulate the values and practices inherent in tikanga Maori are Maori, especially kaumatua. But as illustrated above in this paper, what happens when kaumatua slightly or even diametrically disagree about what constitutes 'authentic' tikanga or the details and scope of a group's tikanga and values?
The work of Te Matahauariki Institute at the University of Waikato may be of some assistance here.' One of the key projects of Te Matahauariki Institute is the assembling of a collection of references to the concepts and institutions of Maori customary law to explore ways in which the legal system of Aotearoa/New Zealand could better reflect the best of the values and principles of both major component cultures. The Director of the Institute, Judge Michael Brown, in consultation with the Institute's Advisory Panel,
62 Metge, J 'Commentary on Judge Durie's Custom Law' (unpublished paper for the Law Commission, Wellington, 1996) 3.
63 See the Te Matahauariki Institute website at http://www.lianz.waikato.ac.nz
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accordingly initiated Te Matapunenga which is an attempt to traverse the existing historical materials with a view to bringing together such references to customary concepts and institutions as appeared to come from an influential or authoritative source and/or to exhibit explanatory insight.
The Te Matahauariki researchers have started with a list of tikanga terms, concepts, and institutions found to be in use in historical and contemporary Maori discourse selected with the assistance of kaumatua. The researchers have searched a wide range of records for entries, which have been listed in chronological order under each title. Each entry consists of a sourced statement or explanation relevant to a particular title together with an explanatory preface intended to supply a context for the statement or explanation. The purpose of the context is to enable the reader to understand the circumstances in which the statement or explanation arose, and to judge its credibility and authority. As noted by Lord Cooke in McGuire (in reviewing House of Lords authorities on interpreting legislation): 'In law, he [Lord Steyn] has said elsewhere, context is everything.'
The researchers have not set out to determine what is or is not 'true custom', or authentic tikanga Maori but rather to record what has at various times and in various circumstances been claimed to be custom. Accordingly, part of a Te Matapunenga entry looks like this:
Maoritanga: Literally, `Maoriness, circumstances or qualities of being Maori' Etymology: maori (stative) [from Proto-Polynesian ma(a)qoli 'true, real, genuine ' ] 'normal, usual, ordinary; native, belonging to New Zealand, Maori (the use of this word to denote Maori people dates from the early part of the 19th Century) + -tanga (nominalising suffix). Note that an older use of the term maoritanga denotes 'meaning, explanation.'
a) A search of 19th Century Maori Newspapers reveals the use of the term Maoritanga as early as 1844 in the Governor's newspaper, Te Karere o Niu Tireni. Complimenting the alleged many Maori who want their children educated in the ways of the Pakeha, the paper notes:
`Ka maiengi ratou i roto i to pukohu o to Maoritanga.' ['They will rise out of the shrouds of Maorinessl (Vol 3, July 1,1844, No. 7, at 33).
64 McGuire v Hastings District Council (supra, n 60) 561.
Te mahi a ena tangata he whakararuraru i nga iwi, he tuku pouritanga ki runga ki te whenua. E kore e noho pai i tona kainga ka whai pea ki nga ritenga totika. Tana i pai ai he whawhai, he tutu, he hoki ki nga ritenga o te Maoritanga.' [What those people do is cause trouble for the people and misery over the land. He will not reside peacefully on his homestead and pursue law-abiding endeavours. What he prefers is conflict, mischief and to return to the customs of Maorihood.] (Te waka Maori o Ahuriri, Issue 2, No. 40, 24 December 1864, at 1).
`E kotahi ana te whakaaro a tenei hui, kua tae tenei ki te wa e tika ana kia whakapaua te whakaaro o nga iwi Maori katoa o nga motu nei, ki te whakakotahi i a ratou ki runga ki tetahi tikanga tapu, i runga i te kaupapa o te Maoritanga motuhake, kaore nei ona tikanga e taupatupatu, ki te Ture ki nga hai ranei me nga tikanga motuhake o ia iwi o ia iwi.' ['This gathering is of one mind, the time is now right for all Maori tribes of the land to give real thought to uniting themselves around a sacred term, around the idea of a special Maorihood, its cultural traits not conflicting with the Law, religions and the individual cultural practices of each tribe.'] (H.H Wahanui, Maori Development Hui, Alexander Turnbull Library, Reference No, MSY-5005).
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newspaper, Te Toa Takitini in 1920, lamented the state of the Maori language as part of a wider neglect by Maori of their Woriness:
`He Maori tonu te tangata ko ona whenua i heke mai i roto i tona taha Maori, ka haere ki te tono ki te Kooti kia kiia is he tangata pakeha ko ona whenua kia whaka-pakehatia. He tohu enei hei kitenga iho ma tatou ko te Maori ano kei te takahi i tona Mcioritanga me ona take Maori.' [` A Maori person whose lands he inherited from his Maori side goes and requests the court to declare him or her a European and to Europeanise his/her lands. These are signs that show us Maori that Maori themselves are transgressing their Wariness and Maori concerns.'] (Te Toa Takitini Number 3,1920 at 4).
`Kia a mau ki tou Maoritanga.' rHold on to your Maorinessl (`Tribal Organisation', in Sutherland, I.L.G (ed.), The Maori People Today: A General Survey (Wellington: Whitcombe & Tombs, 1940, at 177.). This statement by Carroll has generally been credited with being the coinage of the term Maoritanga and is located within the climate of the first Maori renaissance. (See Toon van Meijl,
Maoritanga: colonial ethnography and the reification of Maori traditions' in Journal of the Polynesian Society Vol. 105, no. 3, at 311.).
`It means an emphasis on the continuing individuality of
the Maori people the maintenance of such Maori characteristics and such features
of Maori culture as present day circumstances will permit, the inculcation of
pride in Maori history and traditions, the retention
as far as possible of
old-time ceremonial, the continuous attempt to interpret the Maori point of view
to the pakeha in power.' (`Tribal
organisation' in Sutherland, I.L.G (ed) The
Maori People Today: A General Survey Whitcombe & Tombs, Wellington, 1940 at
The Te Matapunenga project therefore may prove useful to the judiciary and wider public because of its authoritative and well audited research that will assist with contributing to tikanga Maori debates but even more important for reflecting on the best customary concepts and values of both of New Zealand's major component cultures.
While Maori values and tikanga have now re-entered the legal system, there is evidence that the system may not yet have the tools, or have developed a sufficiently informed approach, to dealing appropriately with those values. This article has highlighted some of the complexities that the Environment Court is facing when attempting to incorporate Maori values and to define tikanga Maori in legislation. That is without even mentioning epistemological, translational, pedagogical and ontological complexities. We have, however, highlighted briefly a number of possible options to move towards a better understanding and treatment of these issues in New Zealand, including:
There still appears to be a potential for the values of the dominant society to be 'regularly applied in the assessment of proposals without a thought as to their origin.' However, perhaps sufficient tools now exist which can be applied to address that situation and the inclusion of Maori values and tikanga.
65 Manukau Report (supra n 15) 8.
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APPENDIX I - MAORI TRILOGY
The Maori trilogy provisions in Part II of the RMA are sections 6(e), 7(a) and 8, which provide:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relations to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to —
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
An important factor in understanding the operation of the Maori provisions is the hierarchy of Part II, underpinned by:
66 See Boast, R 'Treaty of Waitangi and Environmental Law' in Milne, C (ed) Handbook of Environmental Law (Wellington: Royal Forest and Bird Protection Society of New Zealand Inc., GP Publications, 1992).
67 As defined in s 5(2) Resource Management Act 1991.
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