Kamo v Minister of Conservation
[2020] NZCA 1
•29 January 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA519/2018 [2020] NZCA 1 |
| BETWEEN | JOHN KAMO, MELODIE ERUERA‑FRASER, MONIQUE CROON, STEPHEN TUUTA AND IWIROA WAIRUA being the trustees of the NGĀTI MUTUNGA O WHAREKAURI IWI TRUST |
| AND | MINISTER OF CONSERVATION |
| AND | HOKOTEHI MORIORI TRUST |
| Hearing: | 17 April 2019 |
Court: | Gilbert, Williams and Courtney JJ |
Counsel: | T J Castle and T N Hauraki for Appellants |
Judgment: | 29 January 2020 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants must pay the first and second respondents one set of costs on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
The appellants are trustees of the Ngāti Mutunga o Wharekauri Iwi Trust (Ngāti Mutunga). They seek declarations that the Department of Conservation’s current proposal to vest certain lands on Wharekauri/Rēkohu in the Hokotehi Moriori Trust (Moriori) will undermine Ngāti Mutunga’s mana whenua and breach the tribe’s right to property, culture and free movement under the New Zealand Bill of Rights Act 1990 (NZBORA). In this Court, they have also made Treaty of Waitangi arguments.
In the High Court, Collins J declined to issue declarations in the terms sought.[1] The Judge found that the Ngāti Mutunga had failed to establish with evidence its mana whenua over the relevant land.[2] They also failed to convince the Judge that Ngāti Mutunga was entitled to the NZBORA protections argued for.[3] It does not appear from the terms of the judgment that Treaty rights were a focus in the High Court.
Background facts
[1]Kamo v Minister of Conservation [2018] NZHC 1983, [2018] NZAR 1334 [High Court judgment].
[2]At [61].
[3]At [78], [80] and [86].
Moriori ancestors had lived on the island they call Rēkohu for many generations before the arrival in 1835 of a Ngāti Mutunga fighting force of around 900. The force had been conveyed to Rēkohu aboard two British merchant vessels. Ngāti Mutunga themselves were displaced refugees due to earlier incursions from the north upon their Taranaki territories.
Moriori culture was distinct from Māori culture. Moriori were essentially pacifist. They were therefore quickly subjugated by Ngāti Mutunga and many were killed. A significant island population of between 2,000–3,000 prior to 1800 had fallen to around 200 by the middle of the 19th century. While not all of that population loss was a result of the Ngāti Mutunga invasion (diseases introduced by the earlier European arrivals also had a role to play), it was nonetheless a substantial contributing cause.
As conquerors are wont to do, Ngāti Mutunga superimposed their own nomenclature on the whenua. They called Rēkohu “Wharekauri”. By the late 1860s, most of the Ngāti Mutunga invaders were drawn back to the North Island by the cessation of hostilities there between Taranaki iwi and the Crown. Many wished to be heard by the post-war Compensation Court in Taranaki to reclaim their confiscated lands. Having been domiciled on Wharekauri/Rēkohu in the early 1860s, they were entitled to the return of those lands as they had not been involved in hostilities against the Crown. Between 20 and 30 Ngāti Mutunga remained on Wharekauri/Rēkohu. Moriori, though depleted, significantly outnumbered them.
In 1870, the Native Land Court heard applications for native title to all of the Wharekauri/Rēkohu lands. The Court found that Ngāti Mutunga were the traditional owners of all but a tiny portion of the island. It found Ngāti Mutunga had extinguished the pre-existing title of Moriori by the traditional Māori means of raupatu — that is, by subjugation in “war”. The Court also found implicitly that Ngāti Mutunga had maintained sufficient occupation by the cut-off date of 1840 to cement their title according to native custom.[4] By contrast, Moriori received awards amounting to less than 3 per cent of the island.
[4]The rule generally applied in the Native Land Court was that the date upon which title must be demonstrated was 1840 (the “1840 rule”).
The modern era of Treaty settlements, with its focus on reparations for historical loss, as well as cultural continuity into the modern era, reignited the contest of mana between these two peoples that had been played out long ago. The intensity of the contest belies the fact that the intervening century has seen a considerable level of intermarriage between them. The contest was fought in Māori commercial fisheries allocation in the 1990s; in land claims litigation and negotiation into this century; and in matters of environmental regulation and conservation management on the island. The contest is seen, at least by the acknowledged leaders of each community, as existential.
Taia Farm
The focus of the current dispute is Taia Farm, comprising slightly less than 1,200 hectares. It is located on the east coast of Wharekauri/Rēkohu. It is a thin sliver of land set between Te Whanga Lagoon to the west and the broad sweep of Hanson Bay to the east. Oriented north to south along its length is a series of small freshwater lakes: Lake Kaingarahu, forming part of Taia’s northern boundary; Lake Makuku; Lake Kairae; and Lake Taia, after which the land is named. The farm is, for the most part, low-lying sand dune and peat country.
Taia is a small part of the original Awapātiki No 1 block, comprising just under 12,500 hectares. That block was awarded in 1870 to four Ngāti Mutunga ancestors. The land was progressively partitioned, leased and then sold off, until in 1955 the Crown acquired it. The Crown used it for the purposes of settlement. Ngāti Mutunga kaumātua, Sunday Wharetutahi Hough, acquired it from the Crown by deferred payment lease in the same year. His son, Theodore Hough, eventually sold it back to the Crown in 2002 on the understanding that it would be used as an historic reserve. Apart from its striking natural features, Taia is historically significant because there are within its boundaries many of the few remaining groves of “rākau momori”. These are ancient living kōpi trees upon which Moriori tūpuna have carved ancestral images. Kōpi fruit abundantly. The species was originally introduced to Wharekauri/Rēkohu by Moriori from mainland New Zealand as a dependable source of carbohydrate in a protein-rich but starch-poor environment. As noted in the ecological assessment prepared for Moriori by Geoff Walls as a part of the vesting proposal:
… [these rākau momori] are considered highly important taonga, and along with extensive shell middens on or near the dune system are the most tangible evidence of the ancestral tangata whenua [Moriori].
Theodore Hough was anxious that these taonga be preserved and placed in the care of descendants of their Moriori carvers. He felt these descendants were the appropriate kaitiaki of the rākau momori and of the wider Taia whenua.
The land was gazetted as an historic reserve under the Reserves Act 1977 in May 2002. Since that date, the Department of Conservation (DOC) has been consistently of the view that Moriori should be directly involved in management of Taia, but arrangements have yet to be finalised. The delay was partly a result of changes in government, and partly because government subsequently decided to rationalise its approach to the development of Crown-Māori Relationship Instruments which had proliferated across the country without consistent oversight since the turn of the century.
The current proposal in relation to Taia is to vest the farm in Moriori pursuant to s 26 of the Reserves Act. Moriori would hold the land on trust for the purposes of the reserve and on conditions defined by the Minister of Conservation (the Minister). A draft memorandum of understanding (MOU) was prepared some time ago, setting out some of the details of Moriori and DOC responsibility in relation to the land. The MOU is now in final form pending Cabinet approval.
Any vesting must by the terms of s 26 of the Reserves Act be preceded by a process of public notification.[5] The Minister must then consider any submissions from other government departments or from members of the community.[6]
[5]Reserves Act 1977, s 26(3)(a).
[6]Section 26(3)(b).
When the Taia proposal was formally notified, Ngāti Mutunga lodged an objection, citing an absence of consultation with Ngāti Mutunga, an absence of consideration given to its relationship with the land, and the use of public funds to purchase the property.
High Court judgment
In a careful judgment, Collins J rejected the Ngāti Mutunga claim.[7] He considered this was not an appropriate case for the granting of declarations because the factual foundation for the relief sought (that Ngāti Mutunga had mana whenua over Taia) was a matter of deep dispute between Ngāti Mutunga and Moriori.[8] Nor, the Judge found, was the case appropriate for consideration under ss 18, 20 and 21 of NZBORA. As to the contention of unreasonable seizure of property, the Judge recorded that the Ngāti Mutunga had accepted its mana could not be given or taken away by the Minister, so even if their allegation that mana whenua resided with Ngāti Mutunga was accepted, it could not have been seized.[9]
[7]High Court judgment, above n 1.
[8]At [58].
[9]At [77].
In relation to the right to enjoy culture, this too could not have been abrogated if the proposal could have no effect on mana whenua.[10]
[10]At [86].
As to freedom of movement, there was no suggestion in the vesting proposal that Ngāti Mutunga’s access to the Taia land would be curtailed following vesting in Moriori.[11] On the contrary, the terms of the Reserves Act required public access to be maintained.[12]
[11]At [92].
[12]Section 18(2)(b).
Finally, the Judge considered the application was in any event premature. The terms upon which the vesting would take effect had yet to be settled and it could not be known what they might ultimately be until decisions are made in relation to the Ngāti Mutunga submission.[13]
Submissions
[13]At [93].
Ngāti Mutunga’s argument developed a little further in this Court. It was constructed around the following propositions:
(a)Both Ngāti Mutunga and Moriori have customary and cultural interests in Taia and both are engaged in negotiations with the Crown in relation to their Wharekauri/Rēkohu claims.
(b)Pre-emptively vesting Taia in one of the two parties would breach Ngāti Mutunga’s Treaty and NZBORA rights.
(c)The Crown must consider the Treaty as a mandatory relevant consideration in making its vesting decisions. It is therefore precluded from resolving Moriori claims by creating another Treaty breach in relation to Ngāti Mutunga.
(d)NZBORA protects Ngāti Mutunga against unreasonable seizure of its property rights. Ngāti Mutunga has a property right in both its mana whenua and its Treaty relationship with the Crown in relation to Taia. The proposed vesting deprives Ngāti Mutunga of those property rights as well as its right to enjoy culture and move freely within the land.
(e)Ngāti Mutunga claims mana whenua over Taia and so does Moriori. It is inappropriate for the Crown to choose winners in relation to particular land on the island without resolving that issue.
(f)The proposed vesting is inconsistent with the Crown’s own policy in relation to the proper treatment of overlapping interests.
Further explanation is in order with respect to the Ngāti Mutunga property rights claims above at (d). It submitted that mana whenua was the “foundation” for Ngāti Mutunga’s rights in Taia and that one of those rights consequential on mana whenua could be described as a property right, but “not the property in specie”. No further particulars of this property right were provided. It was also argued that Ngāti Mutunga had a property right as “an inherent part of” its Treaty relationship with the Crown — not the relationship itself. Again, no particulars were provided. With respect, we have found it difficult to follow these arguments. It seems to us that the substance of the Ngāti Mutunga case in this respect was that its mana whenua and its Treaty relationship with the Crown were themselves property rights protected by s 21. We have approached our analysis on that basis.
In response to these arguments, Moriori argued that Ngāti Mutunga has no relevant property capable of being seized in NZBORA terms. In addition, there is insufficient evidence of Ngāti Mutunga mana whenua over Taia. All facts, including facts particular to the site in question, are disputed. A declaration is therefore an inappropriate remedy whatever the ultimate merits.
In any event, vesting Taia in Moriori could not affect Ngāti Mutunga’s mana whenua or its rights to enjoy culture and free movement.
Finally, Moriori submitted that no final decision has been made in relation to the terms and conditions of vesting, and until such decision is made, declarations would be premature.
The Crown argued that the unreasonable seizure provision in NZBORA focused on privacy and property interests together. The only relevant form of property in this context is the Crown’s indefeasible title. Ngāti Mutunga’s mana whenua, if it could be established, is not capable of being seized in the manner provided for in s 21 of NZBORA. Further, in the absence of any detail about the conditions of vesting, Ngāti Mutunga could point to no basis on which any rights to culture or freedom of movement could be affected by the vesting.
Analysis
We agree with the High Court Judge that this is not a case in which the declarations sought should be granted. We take this view partly because the foundation for the case — Ngāti Mutunga’s mana whenua — is disputed by Moriori. While declarations are sometimes made in disputed fact cases,[14] we agree with the Judge that this procedure is inappropriate in this case. The factual dispute goes to the heart of the case. The complex issues of tikanga and law that arise cannot be resolved without a proper determination of the factual background.[15] The second problem for Ngāti Mutunga is that it seeks declarations of inconsistency before the Minister has come to her own view about whether, and if so, how, Ngāti Mutunga’s interests in Taia might be recognised. Where the central factual contention in the proceeding is contested, the appropriate course is to await the final view of the Minister to see how she considers the contest should be dealt with. In our view, it is not necessarily inherent in the proposed vesting that Ngāti Mutunga mana whenua will always be defeated (assuming the iwi can establish it has mana whenua). The proceeding is therefore premature.
Mana whenua
[14]Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [3–38]; and Ambrose v Attorney-General [2012] NZAR 23 (HC) at [35].
[15]See Pouwhare v Kruger HC Wellington CIV-2009-485-976, 12 June 2009 at [26]–[27]; R v Sloan [1990] 1 NZLR 474 (HC) at 482; and Ambrose v Attorney-General, above n 14, at [51].
Ngāti Mutunga says it has mana whenua over Taia and that this fact was confirmed by the Native Land Court when it awarded the Awapātiki No 1 block to Ngāti Mutunga individuals. The Moriori response is to rely on the 2001 Waitangi Tribunal Report into the claims of both Ngāti Mutunga and Moriori suggesting the original award was wrong.[16] Such positions are perfectly understandable given the pride each side reposes in its history and identity. On the one hand, Moriori is able to refer to particular cultural associations with rākau momori on the land as justifying the delegation of management of the land to it. On the other hand, Ngāti Mutunga focuses primarily, if not exclusively, on the events of 1835 to establish its association with Taia.[17] It is not possible, let alone desirable, to establish where mana whenua resides on the basis of the evidence currently before the Court.
[16]Waitangi Tribunal Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands (Wai 64, 2001).
[17]Mr Thomas McClurg, a member of Ngāti Mutunga and lead negotiator for Ngāti Mutunga in relation to its historical Treaty claims, deposed that he had been told of a Ngāti Mutunga urupa on Taia but was not aware of its location.
There is a further complication in this case. Ngāti Mutunga and Moriori are now considerably intermingled, although they are not co-extensive communities. It is common, in tikanga Māori at least, for conqueror and conquered (assuming those terms to be apt in this case) to intermarry in this way. The victor obtains thereby the deeper ancestral right (or take tupuna) of the vanquished by recruiting their DNA. And the vanquished obtain the protection of a stronger ally at a time of vulnerability by agreeing to share their whakapapa. But these things can change. Vulnerability is not always permanent. Mana whenua is not frozen in time. It is a living principle of tikanga. Mana whenua might come to be shared, or it might merge in the name of a new shared ancestor. These are complex factual questions to be assessed on the evidence against the applicable principles of tikanga Māori, or tikane Moriori, or indeed both. They are certainly not matters capable of resolution on the basis of untested affidavit evidence in an application for declarations.
New Zealand Bill of Rights Act
Ngāti Mutunga focused particularly on s 21: the right to be free from unreasonable seizure of property. Two forms of property were referred to in argument: first, mana whenua; and second, Ngāti Mutunga’s Treaty relationship with the Crown. Neither of these is property.
First, mana whenua is not property in the classical western sense; that is, a thing that may be possessed in its entirety, expended, alienated, or rights in it subdivided. Mana whenua is simply not capable of treatment in that way. It is a phrase used to convey the idea of traditional authority over land and its associated resources.[18] It is not the Māori word for “title” or “property”. Customary title primarily depends on descent from the ancestor with the best right. This is called “take tupuna”. At least in tikanga Māori, a hapū can have mana whenua in respect of resources that “belong” to others — that is, in which other hapū have their own distinct ancestral rights. A common example of this phenomenon is where inland tribes have coastal gathering rights in the traditional rohe (that is, within the mana whenua) of related coastal hapū. This is possible because mana whenua is the right to speak for land. It is not title and it is not a property right, although, to be fair, the two are often co-located in a single kin group.
[18]A comprehensive discussion of mana whenua may be found in Richard Benton, Alex Frame and Paul Meredith, Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 192 and 198–200.
Second, Ngāti Mutunga’s Treaty relationship with the Crown is just that: a relationship. It is not property, even if at times it can become transactional. Section 21 has no application to Ngāti Mutunga’s Treaty relationship either.
Ngāti Mutunga also argues that the proposed vesting will deny their right to culture guaranteed by s 20 of NZBORA. No particulars are given of relevant aspects of culture that will be lost in such vesting, but we presume the argument is that the relevant cultural loss is the loss of mana whenua. The points we make with respect to s 21 therefore have equal application under s 20. We consider s 20 does not assist Ngāti Mutunga here.
Finally under this heading, Ngāti Mutunga submits the proposed vesting will be inconsistent with their freedom of movement over Taia as guaranteed by s 18. But Ngāti Mutunga did not have freedom of movement over the land prior to 2002 because it was privately owned (albeit by a Ngāti Mutunga kaumātua). And in any case, once vested as a reserve under the Reserves Act, access for the public is guaranteed, subject to any specific powers to control access that may be granted by the Minister to Moriori as a condition of the vesting.[19] Since we do not know what those powers will be, it would be pre-emptive to conclude that Ngāti Mutunga’s freedom of movement across Taia has been lost.
[19]Reserves Act, s 17(2)(a).
We agree with the High Court that Ngāti Mutunga cannot call in aid ss 18, 20 or 21 of NZBORA.
Treaty of Waitangi
It was common ground that s 4 of the Conservation Act 1987 applies to the proposed vesting.[20] By its terms, the Minister must interpret her functions under the Reserves Act and carry them out so “as to give effect to the principles of the Treaty of Waitangi”.
[20]Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 at [34].
Ngāti Mutunga submitted before us that the proposed vesting is contrary to that obligation. As we have noted, it does not appear that this argument was made in the High Court. Is the proposed vesting in Moriori inconsistent with Ngāti Mutunga’s Treaty rights? The answer is that it must depend on the terms and conditions of the vesting. Though Ngāti Mutunga did not expressly say so, their argument is really that vesting in Moriori on any terms is Treaty‑breaching primarily because it is inconsistent with Ngāti Mutunga’s mana whenua.
If the vesting in Moriori did have that effect, Ngāti Mutunga may have a point. But that proposition cannot be established in the abstract. As we have said, mana whenua is not static. It evolves to meet the needs of the time. That is why it has been resilient despite colonisation. If indeed Ngāti Mutunga has mana whenua in relation to Taia (and we cannot express any view on that), it will not be 1835 mana whenua, but 2019 mana whenua; appropriate to today’s very different circumstances. An important circumstance to be considered is that the nature of the modern Ngāti Mutunga relationship with Moriori is no longer one of victor and vanquished (if it ever was), but of close kin. This must mean that the terms of the vesting will be critical.
Accordingly, the question of Treaty consistency can only be resolved once the Minister has considered Ngāti Mutunga’s submissions and made her decision.
Conclusion
We conclude, therefore, that:
(a)the evidence is insufficient and the declaratory procedure inapt to address questions of mana whenua;
(b)there are no property rights engaged in this dispute for which protection under s 21 of NZBORA is available;
(c)consistency of the proposed vesting with ss 18 and 20 of NZBORA (freedom of movement and the right to enjoy culture) cannot be assessed until after the Minister has settled the terms and conditions of that vesting; and
(d)the Treaty consistency of the proposed vesting cannot yet be assessed for the same reason.
Result
The appeal must therefore be dismissed.
The appellants must pay the first and second respondents one set of costs on a band A basis with usual disbursements.
Solicitors:
Burley Attwood Law, Tauranga for Appellants
Crown Law Office, Wellington for First Respondent
Minter Ellison Rudd Watts, Wellington for Second Respondent
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