Nettheim, Garth --- "Te Runanganui O Te Ika Whenua Incorporated Society and Another v Attorney-General (NZ) and Others" [1994] AboriginalLawB 16; (1994) 3(67) Aboriginal Law Bulletin 15

• Te Runanganui O Te Ika Whenua Incorporated Society And Another V Attorney-General (Nz) And Others
• Comment

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Te Runanganui O Te Ika Whenua Incorporated Society and Another v Attorney-General (NZ) and Others

Court of Appeal of New Zealand

Cooke P, Richardson, Casey , Hardie Boys and McKay JJ

17 December 1993, Unreported

by Garth Nettheim

In a recent unanimous decision, New Zealand's Court of Appeal (the nation's highest court, subject only to possible appeal to the Privy Council), said "that Treaty rights and Maori customary rights tend to be partly the same in content". On this view, Treaty 'jurisprudence' from the Waitangi Tribunal and from NZ courts may be a possible resource for decisions about native title in Australia, under the High Court's decision in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 or under native title legislation.

The precise relationship between aboriginal title (native title) and Maori Treaty rights has been controversial. The Waitangi Tribunal has at least rejected an argument that Treaty rights are confined to those recognised at common law. In other words, Treaty rights can extend beyond those that Maori would have under doctrines of native title. (Muriwhenua Fishing Report (1988) p209.)

The appellants represented iwi and hapu and all Maori having interests in the Rangitaiki and Wheao rivers in the Bay of Plenty. Under the Energy Companies Act 1992 (NZ) the undertakings of two electricity authorities, including a hydro-electric dam on each of the two, rivers, were to be transferred to companies to operate on business lines. During 1993 the Waitangi Tribunal recommended that the proposed transfers not proceed until the substantive Maori claim to the rivers had been heard and determined. Appellants then brought judicial review proceedings and, pending the hearing, sought interim relief. Doogue J in the High Court declined such an order. The application had been based on administrative law grounds. After Doogue J's decision, the application was amended to add allegations based on "aboriginal title" (native title).

The Court of Appeal dismissed the appeal from Doogue J on the discretionary ground that there was no substantial prospect of the appellants obtaining relief in the proceedings which would affect the ownership of the dams.

One reason given for this conclusion was that "however liberally Maori customary title and Treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power." The history of relevant NZ legislation was held to support such a view.

The Maori claim was also considered in broader terms, including "the obstruction of free passage of migrating eels up and down the rivers." It was noted that the Waitangi Tribunal had adopted the concept of a river as being taonga, in the sense of the rights reserved to Maori under the Treaty, and that Maori rights in a river were conceived in a holistic sense not capable of being divided into separate components such as beds, banks and waters.

The Court said that if the appellants had meritorious claims their most practical remedy may well lie through the Waitangi Tribunal and, perhaps, a negotiated settlement, as in the case of coastal fisheries. They rejected however, the suggestion by Doogue J that their claim was not justiciable, noting that "the Courts in various jurisdictions have increasingly recognised the justifiability of the claims of indigenous peoples", and citing Canadian cases and Mabo as well as NZ cases:

"The legal system is not powerless to provide remedies for racial injustice in appropriate cases ... The reason why the present appeal does not succeed is simply that rights to or in the dams themselves are not held by Maori, nor is there any substantial prospect of a change in that regard; yet Maori claims to remedies not extending to the ownership of the dams will not be affected by the proposed transfers."

Comment

I n Australia, wider the Native Title Act 1993 (Cth), native title can apply to land or waters (s223). “Waters” are defined in s253 in broad terms. Section 212 provides that a law of the Commonwealth, a State or Territory may confirm, among other things, (1)(b) “any existing right of the Crown in that capacity to use, control and regulate the flow of water”. But any such confirmation does not extinguish or impair any native title rights and interests.

A conference was held in Sydney on 24-25 February on Native Title and the Trans Tasman Experience, at which papers were presented by a number of NZ experts as well as Australians. Those researching native title issues would do well to consider looking at NZ experience because Treaty issues there may well converge with Maori customary or native title issues.