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New Zealand Maori Council and Graham Latimer (Chair, NZ Maori Council) v Attorney-General of NZ, Minister of Finance, Minister of Energy, Minister of Lands, Minister of Forests, and Governor-General-in-Council
NZ Court of Appeal
29 June 1987
CA 54/87
Casenote by Laura Beacroft
This case arose from the NZ goverment's decision to enact the State-Owned Enterprises Act 1986, an act intended to improve the profitability of government trading activities. The Act provides for the formation of companies, called 'enterprises', to carry on government activities traditionally carried on by government departments. Under the Act, management decisions are made by a Board of Directors. All shares are held by the relevant Minister, who also controls transfer of Crown assets to the enterprise.
The Maori Council[1] was concerned about the implications of the Ministerial power, under s.23 of the Act, to transfer Crown Land to State enterprises. It is estimated that 10 million of 14 million hectares of land held by the Crown would be transferred. The Maori Council obtained interim orders preventing transfer of Crown lands until their application for judicial review of the Ministerial power under s.23 was heard.
The Maori Council's concerns about s.23 had earlier been voiced by the Waitangi Tribunal, in a 1986 report, which questioned whether s.23 was consistent with the principles of the Treaty of Waitangi. Land transferred to state enterprises would cease to be Crown land, thus creating the possibility that it would not be within the power of the Crown to return the land to Maori ownership. The NZ government had responded to Maori criticisms, by most notably, adding ss.9 and 27.
Section 27 allows for the Governor-General-in-Council to re-acquire land transferred to an enterprise for settlement of Maori claims but only if the claim was lodged with the Waitangi Tribunal before the date of assent of the Act, 18 December 1986. Section 27 therefore offers no guarantee that Crown lands claimed after 18 December 1986 would be able to be returned to Maori ownership - for instance, they could have been sold or leased by the enterprise to a third party.[2] Section 9 provides that Nothing in this Act shall permit the Crown to act in a manner that is incosistent with the principles of the Treaty of Waitangi.
The question before the Court was whether s.9 is an overriding provision that protects Maori claims under the Treaty, even if they were lodged after 18 December 1986 and are thereby outside the protection afforded by s.27. The Solicitor General for the NZ government argued that s.9 does not apply to Crown Lands and that s.27 provides exclusive and adequate protection of Maori claims to Crown lands.
All five judges in the Court of Appeal rejected this argument. The court held that s.9 provides statutory recognition of the principles of the Treaty. In the absence of any written evidence in the Act that any particular transaction was intended by Parliament to be an exception to the protection offered by s:9, the court said s.9 imposed an overriding obligation on Ministers, in exercising powers under s.23, to satisfy themselves that there would be no breach of the Treaty's principles. The court stated that s.27 was consistent with this interpretation since it provides for a system of transfer that can be revoked or confirmed depending on the recommendation of the Tribunal and the government response.
The court did not carry out an exhaustive examination of the principles of the Treaty, but it concluded that both parties are required to act in good faith and reasonably. Considering this principle and the ordinary and natural meaning of s.9, the court determined that the section could not be read down to exclude Maori claims over Crown lands. Although the court rejected the Maori Council's argument that consultation was a principle of the Treaty, the court accepted that in such an important matter as the transferral of Crown lands to new ownership, the Maori Council should be consulted with a view to evolving a reasonably effective and workable safeguard system for protecting Maori claims - whether they are lodged after or before 18 December 1986. The court made orders to this effect, allowing 42 days for the new proposal to be brought before the court for approval.
[1] Maori Council was established by theMaori Community Development Act 1962. Its functions are to; conserve, improve, advance and maintain physical, economic, industrial, educational social, moral and spiritual well-being and to assume and maintain pride of race.
[2] At the time of the hearing 32 claims had been lodged with the Waitangi Tribunal since 18 December 1986.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1988/23.html