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Anthony Willy

Maori water rights a recent Supreme Court decision

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For those who have a taste for reading Sagas (loosely defined as: “long involved stories, or accounts of a series of incidents”) Norse or otherwise, one can do little better than follow the litigation pursued by various Maori interests seeking to secure control of New Zealand waterways for the benefit of a miscellaneous collection of tribes, hapu and Iwi. One can only marvel at the tenacity with which these claims have been pursued over at least the past 150 years and pay tribute to the Maori litigants. Surely no other indigenous people have embraced the English common law in pursuit of its commercial aspirations quite so wholeheartedly and with such trust as have Maori people.

The latest decision of the Supreme Court in is a fine contribution to the ongoing saga. It is between Paki and four others against the Attorney General and two interveners (parties who want to be heard) Mighty River Power and the Te Kahui Trustees. Judgment was given on the 29th August 2014.

Although the appellants lost M/s Hall solicitor to The New Zealand Maori Council is reported as saying about the significance of the judgments in the case:

“ … the Supreme Court refused to give Pouakani people what they asked for, but may have given them something much, much better instead. The Appellants had argued that the Crown’s ownership of the River was as a fiduciary for the benefit of Maori. Instead, the Supreme Court has  questioned whether the Crown owns the River at all.”

The timing of the decision will assist the New Zealand Maori Council before the Waitangi Tribunal in its claim over Maori propriety interests in water, stage 2, which is being prepared. It provides significant affirmation of the Tribunal’s decision at stage 1. The Crown cannot point to English law and assert that no one owns the water. The question isn’t, what was the law of England? The question is what, is the law of New Zealand? In particular, what was the customary position of Maori which the Crown promised to protect?

Today’s Supreme Court decision requires “all Maori to re-look at the way water issues are addressed”, said Ms Hall.

 The Tribunal Inquiry process is the appropriate forum in which to debate the major policy issues identified with protection of Maori proprietary rights and protection of the quality of New Zealand’s water resources for everyone.

The Supreme Court’s refocusing of the water debate around the question of ownership has large implications for all Maori. The door to that argument is now open for claimants like Waikato River and Dams Trust to grow through said Ms Hall. This has only come about because of the courage of the Pouakani people to tackle the hard arguments head on.

The purpose of this article is to test those assertions.

The case
The case is unusual in that it was heard by a panel of 5 judges, but sadly one of them, Justice Chambers a much respected black letter lawyer died unexpectedly between the   date of hearing on the 19th and 20th February 2014 and the giving of judgment on the 29th August. The remaining four Justices: Dame Sian Elias, John McGrath, Sir William Young, and Susan Glazebrook elected, as they were entitled to do, to decide the case. Justice Chambers death is particularly unfortunate because although the four judges agreed that the appeal must fail it is impossible to find any common reasoning to which a majority of the judges subscribed.

To make sense of the outcome a short course in laws 101 is necessary. There exists in New Zealand a hierarchy of courts with the Supreme Court at the top. Its decisions are binding on all courts lower down the pecking order on any matter which it decides and which may arise in some identical or similar dispute in a later case. That is known as the doctrine of precedent. But, and it is a big but, decisions are only binding on other courts to the extent that they decide issues put to them by the parties to the litigation and which are necessary to decide the outcome of the litigation. This is known as the ratio decidendi. If the court says something in passing which is not necessary to deciding the case before it, and that is always dangerous, it is called obiter dicta and although it may be helpful to a later court it has no binding precedent value and may be disregarded by any later Court hearing a similar matter. The other important restriction governing the constitutional status of the Courts in our legal system is that they are not academic bodies dispensing wisdom of assistance to society generally. Their sole function is to decide the dispute which the litigants bring to the court. The judgments in this case fail these basic requirements.

The ration decidendi is that there is no evidential foundation for the claims made by the appellants and that the whole matter if it is to go any further will have to be referred to the Maori Land Court to investigate whether or not the appellant’s forebears enjoyed any customary rights to the bed of the river adjacent to the land they alienated to the Crown in 1887. That did not require judgments running to 323 paragraphs (Justice Glazebrook J dealt with the matter in 11 paragraphs).

Astonishingly Justices Elias, McGrath and Young having found that the appeal failed on the most basic facts nevertheless expressed themselves widely on matters for which there was no factual foundation and which were not germane to the decision. In terms of the doctrine of precedent it doesn’t get much worse than that, and one is left wondering why such experienced judges would step so far outside of what was necessary to decide the case. The answer probably lies in the Judgment of the Chief Justice. She spreads herself widely over the historical and as she sees it, the social background to the claim, and makes pronouncements on a range of matters of fact and law affecting the relationship between Maori and The Crown. Justices McGrath and Young clearly considered that this could not be allowed to pass unchallenged lest it be thought they agreed with the Chief Justice and each wrote lengthy judgments disagreeing with most of the obiter pronouncements of Dame Sian.

 The facts
As Justice Yong points out the case has an air of artificiality about it because it turns on what long dead former owners of the land in question might have thought about their rights in 1887 when the Maori land Court vested the land in the Crown and ordered compensation to be paid to the former owners. This land is situated on the Waipapa stream a tributary of the Waikato River. The Court found that this part of the river had enjoyed limited Maori use and was not navigable other than for some use by canoes. Because there were a number of possibilities surrounding what the original owners may have thought their property rights when the land was alienated to the Crown Justice Young concluded that there can be no certainty as to what the owners thought between 1887 and 1889 about ownership of the riverbed adjacent to the land, or what the Crown agents thought they were acquiring. Along with the other Judges he also considered that for the appellants to succeed they would have to demonstrate that they enjoyed ownership of the river bed to the mid line of the river at the time the land was alienated and that can only be decided by The Maori Land Curt which enjoys exclusive jurisdiction in such matters. All four judges agreed on this point. 

The law
This complete absence of any reliable factual basis on which the appeal could be decided is of course conclusive of the outcome, but the Judges possibly for the reasons mentioned above went on to consider a number of other matters which were argued by the lawyers including:

Whether the vesting of the land in the Crown was an unconscionable bargain in the sense that the Crown had the stronger bargaining position and abused it. There is evidence of this because Parliament later revisited the alienation and altered the outcome. Secondly the notion that the Crown owed the Maori owners a fiduciary duty in the sense of an obligation to act with loyalty towards them. Young J disagreeing with the Chief Justice doubted that the Crown owes any general fiduciary duty to all Maori rather given the terms of the Treaty it has a general duty to deal fairly and openly with Maori. He also found that even if a fiduciary duty could be made out any remedy was long since barred by the effluxion of time.

In the result all of these claims failed because there is no evidence about the circumstances surrounding the bargains with the Crown. Like McGrath J in his judgment Young J. concluded that there are no relevant common law principles which can be applied to assist the appellants. Their remedy if they have one is to bring a claim under the Treaty of Waitangi process which as the Judge pointed out has no limitation as to time, or refer the matter to the Maori Land Court.

Justice McGrath took the same view as Justice Young, that in the absence of any evidence as to the use to which the river was put between 1887 and 1889 it is impossible to decide whether any of the causes of action pleaded b y the appellants can be made out and he dismissed the appeal on that basis. The Judgment is however very important in the way it deals with the notion of the Treaty creating a partnership between Maori and the Crown pointing out that the earlier cases are not authority for the creation of a partnership rather that the relationship is one of the utmost good faith and fair dealing. The comparison with a partnership in this context, does no more than illustrate the nature of the relationship between the Crown and Maori created by the Treaty. This view is undoubtedly correct and can be expected to inform the Courts in future dealings between the Crown and Maori.

The other crucial finding of McGrath J. concurred in by Young J. is that where Parliament has legislated in an area such as the Treaty of Waitangi Claims process the courts should not interfere by seeking to develop the common law in some parallel way giving claimants a choice of remedies. The judge said:

it is necessary that the courts do not frustrate legislative mechanisms or render statutory remedies redundant by developing alternative laws that go beyond the scope of what is available under statute.

This is a vital recognition of the sovereignty of Parliament and quite contrary to the view taken by the Chief Justice that the Courts must remain open to such claims. In addition as she had done in the Foreshore and seabed case  (Ngati Apa v Attorney General)) she indicates that a long standing precedent dating back to 1955 relating to the Wanganui River bed should no longer be followed because more is now known about land dealings between Maori and The Crown. The Judge did the same in Ngati Apa (concurred in by her fellow judges of a differently constituted Bench) to overrule a long standing precedent in the litigation affecting Ninety Mile Beach and rights to take shellfish. This caused a constitutional crisis resulting in the passage of The Foreshore and Sea Bed Act by the Labour government and a fracture in the historical connection between Labour and Maori voters resulting in the creation of the Maori Party. Not only was there this significant political trauma, but those long standing precedents which had been  relied on in numerous commercial decisions over the intervening sixty years are now no longer part the law of the land.

Of course as both of these earlier cases were judgments of the New Zealand Court of Appeal the Supreme Court is entitled to disagree with them, but one would have thought that given the calibre of the Judges who sat in the earlier cases ( among the best Judges ever to sit in our superior courts) and the time those decisions had formed an important part of the law of New Zealand  it would have behoved the Supreme Court to acknowledge that these are matters which require the attention of parliament – as proved to be the case with the subsequent foreshore and seabed legislation. But whatever the merits of the Court intervening in the Ninety Mile Beach case where the facts did allow it to do so, it is unthinkable for the Chief Justice to use her juridical views on the relationship between Maori and non Maori to seek to influence The Waitangi Tribunal or Courts in future cases by expressing sweeping views on matters which did not call for a decision on the facts before the Court. It may be that the Waitangi Tribunal, which has never liked the Wanganui River decision, may wish to revisit some of these matters as part of a Treaty claim in the light of more recent historical research and make a non binding recommendation to Parliament concerning the land in question but that is not the role of the Courts. Courts give judgments which permanently affect the rights of the parties and others similarly placed, on the facts before them, they ought not to volunteer obiter views which may affect the outcome of future disputes particularly in such a socially and politically charged arena.

The Result
The case is authority solely for the proposition that the appellants fail on the facts. Neither a later Court or The Waitangi Tribunal is obliged to have any regard to the ex cathedra statements of the judges. M/s Hall is correct in one respect however the claimant’s remedy, if any lies in the Waitangi Tribunal, and possibly The Maori land Court not the general Courts.