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Omataroa Rangitaiki, Metal Extraction

by Sharyn Green

This report was commissioned by the Waitangi Tribunal for the Omataroa Rangitaiki claim (Wai 248).

Any conclusions drawn or opinions expressed are those of the author.

Waitangi Tribunal Division Department of Justice

Wellington 1993

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Introduction

My name is Sharyn Green (Ngati Maniapoto) and I am employed by the Waitangi Tribunal. I completed my Bachelor of Laws at the University of Otago, Dunedin, in 1991. While at the university I tutored Maori language for the Maori Studies Department and completed part of a Maori Studies degree. I was admitted to the bar as a barrister and solicitor in October 1992. I was commissioned to prepare this exploratory report for the Waitangi Tribunal in May 1992.

This claim concerns the acquisition of parts of Rangitaiki 60C by the Ministry of Works (MoW) under the provisions of the Public Works Act 1928. Almost all of the information for this report was supplied by Bill Patrick, retired former Registrar of the Maori Land Court for the Waiariki region prior to his retiring. Mr Patrick collated his information from MoW files, Maori Land Court files and Maori Trust Office files.

This report concerns a block of land that had portions taken for the Matahina dam. This block was originally Rangitaiki 60C. In 1970 the block was partitioned into 60Cl and 60C2. Then in 1972, 60C2 wa') amalgamated with other blocks to form Omataroa-Rangitaiki No.1. In 1977, the latter block was vested in trustees pursuant to a s438 trust under the Maori Affairs Act 1953. Those trustees have filed this claim with the Waitangi Tribunal.

Location

Rangitaiki 60C is located to the west and east of the Galatea Te Teko road and was an area of 5170a Or Op before takings commenced in 1960.1

The Claim

On 23 February 1988 the claimants' solicitor informed the Waitangi Tribunal that the Omataroa-Rangitaiki trustees were wishing to lodge a claim simila,r to another claim (Wai 247) concerning similar takings of Maori land. The claim concerns the Crown's failure to pay royalties for metal extracted from Rangitaiki 60C. The claimants object to the compulsory acquidtion of 60C and allege that the Crown should have paid royalties for the metal extracted from 60C instead of taking the block.2 The claim was registered at the tribunal as Wai 248 by a direction issued on 11 November 1991.3

Auckland Land Registry Search, 7 December 1959; Public Works file reference 92/12/75/6; db pI

see appendix 1 in the appendices to the report

see appendix 2 in the appendices to the report

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Waitangi Tribunal Research Series: Rangitaiki 60C

Block History of Rangitaiki 60C

In 1960 the Maori Land Court advised the MoW that the "principal" owners of the block were R Park, T Waitere, Te Kori Ngaheu4 while Kakaho Te Va leased 146 acres of the block. 5 The term principle was probably used because by 1974, there were some 2961 owners noted by the court.6

The first taldng from the block

145a 2r Op was the first area taken from this block by proclamation, in October 1960. 7 This area was that being leased by Te Va. The taking was pursuant to the Public Works Act 1928 for the purpose of the Matahina power scheme.

Valuation of the part taken

Before the proclamation was issued, a valuation was carried out in respect of the part of 60C that was proclaimed taken.8 The unimproved value was £1215 but improvements to the block, outlaid by the lessee, put the capital value of the area at £4285. The money that was invested in the property by the lessee far exceeded the value added to the property. The lessee could have only expected to realise his investment from each season's improved profits.9

The solicitor acting for the lessee suggested to the Lands Purchase Officer that the Mo W did not appear to need the entire 150 acres that was to be taken for the power scheme. It was proposed that the lessee retain approximately 80 acres of his 150 acre farm. This would enable the lessee to carry on his farming to a limited extent and would avoid the huge loss that the lessee was to incur from the assessment for compensation calculated in accordance with the government valuation. to The District Commissioner of Works replied to the solicitor's suggestion that a

Letter from the Resident Engineer, Rotorua, to the District Commissioner of Works, Hamilton, 15 December 1959; PW file reference ibid; db p2

see footnote 1

Particulars of title to land for Omataroa Rangitaiki No 1, 18 March 1974; db p3

New Zealand Gazette, 20 October 1960, No.68, p1642; db p5

Rural valuation and short report, July 7 1960; db p 6

ibid

Letter from Urquhart, Roe, Keane & Dilton, (barristers and solicitors) to the Land Purchase Officer, Hamilton, 28 July 1960; db p7

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proclamation over the whole of the lessee's farm would issue, but gave an undertaking to revoke the proclamation over an area of 40-45 acres. 11

Compensation

On 19 May 1961 the Maori Land Court sat to award compensation to the owners and the lessee of 60C. 12 The court awarded compensation on the basis of the MoW's offer to revoke the proclamation for the area of 50 acres, so compensation was assessed for 96 acres.

The court heard evidence from three valuers: one representing the owners, one for the lessee, and one for Crown. The valuer for the owners assessed the land with and without improvements effected by the lessee, as well as the shingle. The shingle was valued at £500. The valuer for the lessee valued the improvements only, and the shingle, with the latter valued at £300.

The court found the value of the metal to be £250. The valuation carried out on behalf of the Crown was considered to be too conservative. The court found the value of the land, with improvements, to be £6200. Th~~~!ue ~_~_~~ metal was not accounted for in arriving at this value.

This value was apportioned between the lessee and the owners at £2000 to the owners and £4200 to the lessee. The lessee also received compensation for expenses (£200), forced sale (£1000), and interest from the time of entry down to the date of judgement. In all this amounted to £5670. The owners received £2000 plus £100 interest.

The abatement of rent was also set by the court since the lease was to be over 50 acres once the proclamation had been revoked in respect of that area. 13

On 7 July 1961 the Maori Trustee was sent the cheque for the compensation awarded to the owners by the court.14 The lessee's award was not included since payment

Letter form the District Commissioner of Works, Hamilton, to Urquhart et al (barristers and solicitors), 24 August 1960; public works me reference 92/12/75/6; db p8

Rotorua minute book 115, 19 May 1961, pp104-108; db p9

ibid

Authorization for payment to the Maori Trustee, Waiariki District, 19 July 1961; public works me reference 92/12/75/6; db p11

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was conditional upon him giving vacant possession of the farm area. 15 To this end the MoW arranged for the lessee to buy the buildings on the property for £75. This money was to be deducted from compensation moneys awarded to the lessee by the court. 16

On 19 July 1961 the Maori Trustee was given the cheque for the lessee's compensation less £75 for the purchase of the buildings and £1000 retained by the Mo W until vacant possession was given. 17 MoW Whakatane advised MoW Hamilton on 15 August 1961 that vacant possession was given.18 The final payment of £1000 was made to the lessee. 19

Revocation of the proclamation over part of 60C

On 12 April 1962, a proclamation was issued revoking in part the proclamation of the 13 October 1960 which took 145 acres from 60C. The proclamation of October 1960 was revoked in respect of approximately 53 acres.20

The second taking from 60C

This was by proclamation on 6 December 1962.21 Three parts of 60C were taken for deviation of the Te Teko-Murupara highway. The three areas of 60C amounted to la 4r 21.3p.22 On 13 December 1962 approximately 5 acres of 60C was also "set apart" for road.23

Valuation of the part taken

Letter form the Project Engineer, Te Mahoe to the lessee (fe Va), 13 July 1961; public works file reference ibid; db p13

ibid

Authorization for payment to the Maori Trustee, Waiariki District, 19 July 1961; db p14

Letter from the District Commissioner of Works, Hamilton, to the Project Engineer, Te Mahoe, 15 August 1961; public works file reference 92/12/75/6; db p15

Authorization for payment to the Maori Trustee, Waiariki District, 22 August 1961; db p16

New Zealand Gazette, 12 April 1962, No.23, p586; db p17

New Zealand Gazette, 6 December 1962, No.78, p2178; db p18

ibid

New Zealand Gazette, 13 December 1962, No.79, p2214; db p19

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A valuation was carried out by the Valuation Department on May 12 1964 in respect of those parts taken by the 6 December 1962 proclamation.24 The valuation and a letter from the MoW confirms that the valuer was to assess the land at the time of the taking (1962) eventhough the valuer's inspection was carried out in 1964.25

The valuation assessed the value of 1a 4r 21.3p to be £35. 26

Compensation

On 15 July 1964 the Maori Land Court awarded 42 pounds (£35 for the value of the land plus 20% interest) compensation to the owners of 60C.27

The third taking from 60C

Some time close to July 1967, the MoW confirmed its land purchase agenda necessary for the Matahina power scheme.28 Among the lands that were scheduled for taking were parts of 60C. The report however shows that the construction village, the permanent village, the dam right abutment and the core material borrow area were already constructed on 60C.29 Indeed, the Maori Trustee informed the MoW in 1964 that the owners of 60C had complained that a considerable part of their land was being occupied and that material was being extracted from land which had not been taken as far as the owners were aware.30 The Maori Trustee pointed out to the MoW that the owners may have had a case for damages and wrongful occupation. 31

Taking by proclamation

Valuation from the Valuation Department, 20 May 1964; db p20

Letter form the District Commissioner of Works, Hamilton, to the Valuation Department, 22 April 1964; public works file reference 92/12/75/6; db p 21

see footnote 24

Whakatane minute book 38, 15 July 1964, p129; db pp22, 23

"Land Purchase" agenda from the public works file, reference 92/12/75/~; db p24

ibid

Letter from the Department of Maori Affairs and Maori Trust Office, Waiariki District, to the District Commissioner of Works, 27 October 1964; db p25

ibid

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A gazette notice in 1968 proclaimed four parts of 60C taken for water power.32 An area of 226a 3r 09p of 60C was taken.33 This proclamation was in respect of those parts of 60C already occupied by the MoW and the New Zealand Electricity Department (NZED).

Valuation of the parts taken

In June 1969 valuations were being arranged for the purpose of settling compensation but the MoW were having problems establishing when entry was made onto the blocks taken by the 1968 proclamation.34 The MoW gave rough estimates of when entry onto the land was to have occurred. For three of the areas taken, it was estimated that entry was made in mid 1960. The fourth and largest area (171a Or 06p) was entered in mid 1961.35 A valuation of the four areas proclaimed taken in 1968 was done in April 1970.36 The valuation assessed the land as at mid 1960 and mid 1961.37 To take account of the difference between the date of entry and the payment of compensation, the settlement to the owners was set at the government valuation plus interest at 5% per annum from the dates of entry until settlement.38

The area of 171 acres of 60C (taken by the 1968 proclamation and entered in mid 1961) was a major quarry area. By the time that it came to be valued in April 1970, the NZED planned to revest it in the owners as part of the compensation settlement.39 This area was valued at £1710.40

Enquiries from the claimants' solicitor

When the Crown planned to revest this portion of 60C in the former owners, the

New Zealand Gazette, 1968, p1399; db p26

ibid

Letter from the District Commissioner of Works to the Maori Trustee, Waiariki District, 5 June 1969; db p27

note from the public works file, reference 92/12/75/6/1; db p28

Valuation assessment from the Valuation Department, 14 April 1970; db p29

Letter form the District Land Purchaser to the District Commissioner of Works, 29 July 1971; db p30

ibid

ibid.

see footnote 36

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claimant's present solicitor made the following enquiries to the MoW1:

• under what authority did the MOW make its entry upon 60C some nine years prior to the proclamation of 1969 taking parts of 60C?

• was the MOW going to pay royalties to the owners for the natural material taken from part of 60C?

According to the owners of 60C, representations were made to them by the MoW that they would be paid royalties and that records were being kept for this purpose. 42

The MoW replied that the authority for their entry prior to the date of the taking was by Order in Council issued in New Zealand Gazette, 1959 at p56. The Order in Council was issued pursuant to ss311, 312 of the Public Works Act 1928 which authorised the Minister of Energy powers of entry onto private land for water power schemes. With regard to the payment of royalties, reference was made to the common law in existence at the time which did not require the Crown to pay for natural material extracted from land when there were no competing demands for the material. 43

Plans to revest part of 60C in the former owners

The NZED still planed to revest 171 acres in the former owners when the time came to award compensation for the land taken from 60C in 1968. It was envisaged by the Mo Wand the Maori Trust Office that when the Maori Land Court sat to award compensation, the taking of the 171 acres would not be compensated for. This noncompensation would mean that the 171 acres could then be revested in the owners at no cost by a s43644 application to the Maori Land Court.45

Letter from the claimant's solicitors to the District Commissioner of Works, 23 June 1970; db p31

Letter from the claimant's solicitor to the Solicitor - General, 5 May 1970; db p32

Letter from the Ministry of Works Head Office to the District Commissioner of Works, Hamilton, 14 July 1970, public works file reference as above; db p33. For a copy of the gazette notice see db p34

A s436 order of the Maori Affairs Act 1953 revests Maori land taken for a public work, in those persons so named in the application made by the Minister of Works. The minister usually nominates the fonner owners or their successors, and the price to be paid to for the return of the land. The court may be asked to determine those issues, but the court only has a discretion to decide these if they are not stipulated in the application

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The two actions however became inadvertently divorced due to the partition and amalgamation of 60C.

Partition and Amalgamation oj 60C

On April 10 1970 a partition order subdivided 60C into 60C1 and 60C2.46 The owners of each of the two subdivisions were the same in identity and share allocation.

On 17 January 1972 60C2 was amalgamated with surrounding blocks to form the Omataroa-Rangitaiki No 1 block. 47 This amalgamated block was then vested in trustees pursuant to s438 of the Maori Affairs Act 1953.48 Consequently, when the Mo W filed their first application to revest the 171 acres in the owners, the wrong appellations were used due to the partition and amalgamation orders. 49

Revesting and compensation orders

The application to revest the 171 acres was heard five times before an order was finally granted in 1977.50 On the other hand, the compensation settlement arranged between the Maori Trustee and the MoW had been paid to the owners in 1972.51

Due to the delays in hearing the Maori Land Court application to revest the 171 acres, the settlement to the owners included compensation for the 171 acres. 52 The settlement of $5615 plus $50 legal costs was paid to all the owners of those blocks that were taken in 1968. The interest at 5% per annum from the dates of entry onto the blocks until December 12 1971 was $2905.38 This settlement was based on the

Letter from the District Commissioner of Works, 18 May 1971; public works file reference as above; db p35

Letter from the Maori Land Court to the Chief Land Surveyor, Hamilton, 19 March 1974; db p36

ibid

ibid

Application to the Maori Land Court Waiariki District for a s436 order, 25 January 1973; db p37

Whakatane minute book 65, 16 June 1977, ppI68-170; db p38

Ministry of Works voucher for payment to the Maori Trustee, 6 October 1971, db p39

Letter from the District Commissioner of Works to the Maori Trustee, 15 April 1971; db p40

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Waitangi Tribunal Research Series: Rangitaild 60C

valuation of the blocks carried out in April 1970. The interest was paid to the owners February 1972.53

A 8438 order vesting the 171 acres in trustees

When the s436 revesting order was granted by the court for the 171 acres in 1977, the land was by this time part of the 60C2 block that had then been amalgamated into Omataroa-Rangitaiki No 1. The Omataroa-Rangitaiki No 1 block was already vested in trustees pursuant to a s438 order, so the Maori Land Court also vested the 171 acres in the same trustees when it sat to revest the land in the former owners. 54

Takings from the block for road

On 10 September 1970, 3a 3r 25p of 60C which was road, was declared government road and stopped by Order in Council. 55 Also on 10 September 1970, la 2r 37p and 6a 3r 9p of 60C which were held for electricity purposes, were set apart for road. 56 On 12 November 1970, the 3a 3r 25p of 60C declared government road and stopped, was set apart for electricity works. 57

The application to revest parts of 60C

In 1985 the Minister of Works and Development applied to the Maori Land Court for a s436 revesting order for a total of 35.2592 ha of Rangitaiki 60C, (the minister used this appellation in the application despite the partitions and amalgamation of this block in the 1970s).58

A valuation was carried out in 1984 in respect of the 35 ha which is in separate areas throughout the block. The current market value was assessed at forty thousand dollars. 59

Ministry of Works voucher for payment to the Maori Trustee, 6 October 1971; db p41

Whakatane minute book 65, 16 June 1977, ppI68-170; db p42

New Zealand Gazette, 10 September 1970, No.54, p1598; db p43

New Zealand Gazette, 10 September 1970, No.54, p1601; db p44

New Zealand Gazette, 12 November 1970, No.70, p2079; db p45

Application to the Maori Land Court, Waiariki District, for a 8436 revesting order, 13 March 1985; db p46

Valuation Department valuation, 5 November 1984; db p47

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Issues

The claimant is dissatisfied with the Crown's action of compulsorily acquiring the land for £440 rather than paying the owners royalties for metal extracted from the land.

The first four issues relating to the above grievance have been extensively discussed in the report on Wai 247, which also concerned Maori land taken to extract gravel for the Matahina dam. This report shall not entirely repeat the discussion of these issues, but shall provide a synopsis of these.

5.1 An examination of the legislation which gave the Crown its powers to acquire private land for a public purpose is provided below. This is to provide a background for considering what special, if any, provisions were made for Maori land and the Crown to fulfil its obligations under the Treaty.

Public Works" Act 1928

The Public Works Act 1928 provided for the taking of Maori land. The Act distinguished between Maori customary land, and Maori freehold land. Where the Crown wished to acquire the former, Part IV of the Act applied (see s103(1)(a) of the Act). Where Maori freehold land or General land owned by Maori was to be taken, Part II of the Act applied (as stated in s103(1)(b) of the Act). As a matter of comparison, most General land was taken in accordance with Part II as well.6o

Acquiring land, Part II of the Public Works" Act 1928

Section 22 of the Act provided explicit sections for "any Maori who is an owner or occupier of land. " This would only have applied to Maori freehold land and General land owned by Maori, not Maori customary land. Section 22 was subject to slO, which provided that "Maori land" was not to be taken in accordance with sections 22 and 23. "Maori land" however was defined as Maori customary land in s2 of the Act. By this definition, and the explicit exclusion provided in slO, sections 22 and 23 applied to Maori freehold land and General land owned by Maori.

s22(3) of the Act provided that Maori owners and occupiers did not have to be shown on the plan which displayed the lands required by the acquiring authority; they did not have to be served with a copy of the public notice and description of the works unless the title to the land was registered under the

land required for railway and defence purposes are two instances which were exceptions to this rule, see s10 of the Act for others

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Land Transfer Act 1952. Entry on the Provisional Register was deemed not to constitute registration under the land transfer system. s22(4) of the Act then provided that where land owned or occupied by Maori is not registered under the land transfer system, "a notice to the same effect as the notice gazetted in accordance with the foregoing provisions of this section shall ... be published in the Kahiti".

It is clear that Maori owners and occupiers of land, except Maori customary land, either do or do not have to be shown on the plan. It is ambiguous however whether the remaining provisions in s22 (discussed below) applied to Maori freehold land and General land owned by Maori. This is for the reason given above, that is, the provisions in s22 do not apply to "Maori land" only, which is defined in s2 as Maori customary land.

The remaining provisions in s22 provided that a survey of the land was to be made, a plan prepared showing the land that was to be taken, along with the names of the owners and occupiers of the land (s22(1)(a), Part II of the Act). The plan had to be deposited in the road district where the land was situated (s22(1)(b». A notice then had to be gazetted and twice publicly notified giving the place where the plan could be inspected with a general description of the works and the land that was to be taken (s22(1)(c». The notice was also to call upon all persons affected to make "well-grounded" objections in writing regarding the works or the land that was to be taken, within 40 days of the publication of the first notice (s22(1)(d».61 The public notice was then to be served on the owners and occupiers of the land and anyone who had an interest in the land (s22(1)(e». The objector was then given an opportunity to appear before the Minister, if the work was a government one, or the local authority, if a local work (s22(1)(f). Once again I assert that these procedures could have applied to the taking of Maori freehold land or General land, except as varied by s22(3) and (4) which have been discussed above.

Once the above surveys and plans had been carried out and the notices had been given, land was then taken under s23. section 23 provided that after the expiration of 40 days from the issue of the first public notice and the due consideration of any objections, the land would be taken by a proclamation of the Governor-General. The proclamation would be publicly notified within one month from its making and the land vested in the Crown from a day appointed in the proclamation.

Compensation claims, Part III of the Act

A proviso to this subsection deemed objections to the amount or award of compensation as not "well-grounded" within the meaning of the section

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Compensation for the taking of all types land owned by Maori was could be claimed under Part IV of the Act. Sixth months after the date of the gazette notice or proclamation taking the land, the minister or local authority was to make an application to the Maori Land Court for an order assessing compensation and any other orders which the court saw fit. The Maori Land Court was deemed to have all the powers of the Land Valuation Court.

In all then, the Crown was legally entitled then to take the land or enter upon the land pursuant to Part II of the Act, then pay compensation, as determined by the Maori Land Court, under Part IV of the Act.

Land required for water power, Part XIII

section 10 of the Act also provided that sections 22 and 23 did not apply to lands taken for water power unless specifically provided for in the sections. Since neither sections made explicit reference to land required for water power, the parts taken from 60C would have been acquired under Part XIII.

Section 306, Part XIII, provided inter alia, that any land necessary for the generation or storage of water power could be taken by the GovernorGeneral.

s311 of the Act gave the Governor-General the power to authorise the Minister of Energy to erect works necessary for the utilisation of water power. If s311 was invoked, the land need not have been formally acquired by the Crown (see s311(1)(d».

It was pursuant to s311, Part XIII of the Act that the Crown made early entry on the land prior to it taking the land by proclamation. The Crown then issued a proclamation to take the land for water power, so it was presumably acting pursuant to s306 of the Act.

The Crown's obligations to pay royalties

At the time of the acquisition of the block, the common law applied by the courts favoured the municipal bodies that were acquiring "natural material" pursuant to statutory authority. 62 The value of the natural material was assessed by the value which the material added to the land and not as a separate entity. The presence of the natural material could not enhance the value of the land however if there was no market for the natural material

Public Works Act 1981 s27(1) defines "natural material" to include gravel, stone, clay, soil, sand, pumice, and limestone or other similar material

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apart from the special needs of an acquiring authority.63 This common law was codified in the Public Works Act 1981 s62(1)(d). The price for land containing deposits was strictly regulated by the courts in two ways. Firstly, where there was an increase in demand for the deposits (perhaps generated by the Crown's interest in the deposits) the value of the land was calculated without considering the increase in value of the deposits, brought about by the extra demand created by the needs of the acquiring authority.64 Secondly, where there was no demand for the deposits, apart from the Crown, the Crown was able to purchase the land without taking into consideration the value of the deposits at all. 65 In the case of 60C, since the demand for the natural material came from the Crown, the land was able to be purchased for a price which did not reflect the fact that there were deposits in the land.

It should be questioned whether this method of valuing land acquired for its natural material, upheld by the common law, is fair and reasonable. 66

The valuation of land is important when land is compulsorily acquired because the compensation paid to the owners is based on the valuation.

Land was valued according to the price the property would realise if sold on the open market by a willin~ seller to a willing buyer. This would seem somewhat fictitious where the land is compulsorily acquired, or where the Crown essentially forces the owner to sell with the threat of compulsory acquisition if an agreement to take the land is not reached.

The common law, codified in the Public Works Act 1981, would also seem to support a somewhat fictitious method of valuation. The common law view that land valuation not take account of the presence of natural material where the acquiring authority was the only one in the market, begs the question of how it was known that this was the case. Did the acquiring authority, for instance, ask for tenders for the natural material so as to judge whether there was demand for the material. Conversely, the common law decisions that the extra demand for the material (supposedly brought about by the acquiring

MOW v Green and McCahill (Contractors) Ltd [1965] NZLR 580, Vile v Manawatu County [1959] NZLR 337

Marshall v MOW [1950] NZLR 166; LVCB 165.

Waitemata County v Hughes [1967] NZLR 580

The terms "fair and reasonable" are used since this encapsulates the partnership and fiduciary duty owed by the Crown to Maori under a principle of the Treaty of Waitangi, as discussed extensively below

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authority's demand) could not enhance the value of the material, raises the issue of how the valuer could be sure that the increase in value was in fact bought about by the Crown's interest in the material.

5.3 Although the Crown may have been acting lawfully, could the Crown have used alternative provisions in the Act permitting:

• the Crown to engage in negotiations with the owners of the land for the payment of royalties for the metal that was extracted, and

• the owners to retain their freehold interest in their land? f'-

Section 17 of the Public Works Act 1928 provided the Crown with the power either to take land for the gravel in the land, or to enter upon the land after twenty four hours notice to take, dig, or extract the material. Reasonable compensation was to be paid and if a dispute arose, Part III of the Act was to apply. Section 17 was in Part II of the Act, so Maori freehold land could have been taken, or entry made, pursuant to this section.

Neither option in s17 however afforded the owner(s) the right to enter into negotiations for the taking of their freehold interest, or for the natural material which existed in the land.

Section 32 of the Act however did give the Crown the option of either taking land, or any interest in land, by agreement with the owner or occupier. Agreements could be struck to: take the interest and estate of any person in any land; or to purchase or lease any interest in any land upon terms the minister or local authority thought fit. This provision gave to the Crown the statutory option of inter alia:

• entering into agreements (and by implication, negotiations) with those who had an interest (in their many forms) in land, for the purpose of

• leasing or purchasing any interest in any land.

Conversely, s17 of the Public Works Act 1928 did allow the Crown to enter upon land to extract natural material in the land while their interest in the land remained intact, but the right of the interest holder to negotiate for the price paid by the Crown for the material is absent.

5.4 With the above legislative options in mind, the next issue to consider is whether the alternative provisions afforded to Maori the protection of their interests in their land, as provided for in the Treaty of Waitangi.

Alternative provisions existed whereby the Crown could have avoided

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compulsorily taking the block like it did in the claimant's case. It would appear that section 32 afforded to Maori owners more protection of their freehold interest, than the provisions actually used by the Crown to acquire 60C. section 32 allowed those who had any interest in any land the opportunity to enter into an agreement, and that agreement could be for the lease or purchase of an interest, thereby avoiding the need to take the entire freehold interest. One option, a lease of the part of the block to extract the metal, could have been arranged. However the lease may have not been able to reflect the value of the natural material which existed in the land due to the common law rule discussed above. Conversely, an opportunity existed for the Crown to strike an agreement with the owners to purchase a licence to extract the material. It may be contentious whether the common law rule of valuing land, applies to licences. Licences are separate property rights that give the holder an interest to that which they apply. Their value is not entirely dependant on the value of the land.

The downfall of s32 as far as the protection of property rights is concerned is that the agreement, to either purchase or lease an interest in land, was upon "such terms as the minister and local authority thinks fit". This begs the question of how much bargaining power the holder of the interest had and whether there existed a standard form contract which the holder of the interest was simply invited to sign without negotiating its terms. Both options however afforded to owners the retention of their freehold interest in most of their land, while earning the owners an income from that part that the Crown required. An agreement to acquire such interests (as opposed to outright acquiring the entire block) may have ensured that only the land where the metal existed would have been affected. This may have prevented the taking of more land than was necessary.

Part XIII, compared with the provisions discussed above, afforded those who had interests in land few powers against the Crown's power to take that interest:

• the Crown was not obliged to follow the notification procedure in s22, Part II since slO provided that s22 was not to apply to lands taken for water power,

• the Crown was not obliged to call for objections from interested parties, which was provided for in s22, once again due to slO,

• the Crown had the power to take "any lands" needed for the utilisation of water for the generation and storage of electricity (s306(2»,

• the Crown had very wide powers to enter upon land, without having to formally acquire it, (s311). The Crown could erect and use such works and

15

67

68

69

70


appliances it needed where water power was utilised for the generation and storage of electricity, (s311(1)(a)). The provision does not say where the Crown could do this, but by implication it was on "any land" since an interference with any of the works authorised by s311(1) constituted trespass against the Crown (s311(2)). Also the Crown could construct tunnels under the land, or aqueducts over it, erect poles, or carry wires over or along such land. The right of way to such works was also granted to the Crown by this provision, (s311(1)(d)). It may be interpreted however that this provision did not give the Crown the power to extract metal or construct a major work for the dam since the wording of the section would not seem to warrant this.

5.5 Did the Crown breach its duties as a Treaty partner by failing to consider and utilise any of the alternative provisions in the Act when the Crown took parts of 60C?

This issue is considered against the assumption that the alternative provisions discussed above afforded to the owners more protection of their interest in their lands.

Before it can be considered whether the Treaty duties were breached, a brief synopsis of those duties will be given first.

It has been said in various Waitangi Tribunal reports that the Crown is under a duty to actively protect Maori interests.67 The imposition of this duty was supported by the Court of Appeal in the New Zealand Maori Council case of 1987.68 This principle is a synthesis of Articles 2 and 3 of the Treaty and the preamble. The ambit of this duty extends to the Crown ensuring that Maori have a land base, that if this land base is relinquished that they are willing to sell their land, and that the owners were consulted when land was being acquired. ..

Another important principle is that the Treaty embodies the Crown and Maori in a partnership relationship where each side owes the other duties. These duties are analogous to those owed under partnership laws where the principles of equity regulate such relationships.69 Each partner then is under the obligation to act in the utmost good faith, and reasonably toward each other.7o

Ngai Tahu Report 1991 vol 1 (Wellington, 1991) p240

New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 663 (CA)

ibid at p682

Ngai Tahu 1991 vol 1 (Wellington, 1991) p243

16

71

72


The following facts and OpInIOnS should be relevant when the Waitangi Tribunal comes to make a finding on whether the Crown breached its duties under the treaty:

• entry was made on the land in mid 1960 and mid 1961. The entry was authorised by Order in Council pursuant to s311 of the Public Works Act 1928. During this time the land had major constructions erected on it. It was not until 1968 that the land was taken by proclamation, and compensation was not paid until 1972.

• although interest was paid from the time of entry to the date of judgement, it appears unreasonable that the Crown could be on the land eight years prior to it being formally taken, and eleven years before compensation is awarded. It would seem that a reasonable partner would attempt to negotiate with the owners for the land or the metal, an provided in the Public Works Act 1928, and settle this as soon as possible.

• when the Crown made its early entry, metal began to be extracted from the land. The former owners had informed their solicitor that the MoW made oral representations that they would be paid royalties for the metal and that records were being kept for such a purpose. It was conceded by the Crown in 1971 that the land was taken so as to avoid any claim that royalties should be paid to the owners.71 Again it would appear that a reasonable partner would have paid royalties for the metal, regardless of there being no legal obligation to do so. It is relevant that there were provisions in the Public Works Act 1928 which provided for this, as well as other alternatives to taking the land.

5.6 Consequences of a finding that there is a Treaty breach

The Minister of Work's application to revest parts of 60C in those found entitled by the court, stipulates that the land be revested for $40000. A good case could be made to the minister to revest the land for less than $40 000 if it is found that there are breaches of the treaty. The Maori Land Court does not have the jurisdiction to reduce the price asked by the minister, so it will be entirely within the minister's discretion.72

As for those parts of 60C that were acquired by the Crown for the general construction of the dam, and roads, the claimants have not claimed before the tribunal, to be prejudicially affected by those actions.

see footnote 36

see 8436 of the Maori Affairs Act 1953

17


Appendices to the report

1. Notice of claim to the Waitangi Tribunal, 23 February 1988.

2. Memorandum-directions of the Waitangi Tribunal, 11 November 1991.

18

WAITANGI TRIBUNAL .. OFFICIAL Wai 54, 64, 65, 181, 308, 417

CONCERNING the Treaty of Waitangi Act 1975

AND the Chatham Islands

MEMORANDUM OF COUNSEL FOR CLAIMANTS

On 16 May 1994 Counsel for the claimants presented her opening submission (Wai C1).

Counsel for the claimants has informed the Tribunal that some item numbers cited in the

submission do not correspond with the Te Iwi Moriori document bank presented to the

Tribunal.

The items concerned and amendments required are:

(i)

(ii)

(iii)

Page 3 (Wai C1)

(a) clause 1.8: amend "Volume 8, Document 172" to read as "Volume 8,

Document 8.2"

Page 5

(a) 1858: amend "Volume 2, Document 42" to read as "Volume 2,

Document 2.5"

(b) 1862: amend "Volume 2, Document 43" to read as "Volume 2, 2.711

Page 6

(a) 1863: amend "Volume 2, Document 44" to read as "Volume 2,

Document 2.9"

(b) 1864: amend "Volume 2, Document 45" to read as "Volume 2,

Document 2.9"

(iv)

(v)

(vi)

Page 7

(a) 1870: amend IIVolume 8, Document 172" to read as IIVolume 8,

Dpcument 8.211

(b) 1878: amend IIVolume 2, Document 51" to read as "Volume 2,

Document 2.1611

( c) 1879: amend "Volume 2, Document 52" to read as IIVolume 2,

Document 2.1811

( d) 1879: amend "Volume 2, Document 53" to read as "Volume 2,

Document 2.1911

(e) 1879: amend "Volume 2, Document 54" to read as "Volume 2,

Document 2.2011

(f) 1881: amend "Volume 2, Document 55" to read as "Volume 2,

Document 2.2111

(g) 1881: amend "Volume 2, Document 2.6" to read as "Volume 2,

Document 2.2211

Page 11


Document 8.2"

Page 12


Document 8.2"

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