www.ipsofactoJ.com/international/index.htm  Part 9 Case 8 [NZCA]
COURT OF APPEAL, NEW ZEALAND
- vs -
Treaty of Waitangi Fisheries Commission
WILLIAM YOUNG J
15 JUNE 2004
(delivering the majority judgment of the court)
The Treaty of Waitangi Fisheries Commission (then called the Maori Fisheries Commission) was set up as a result of an interim settlement of Maori claims with regard to commercial fishing in New Zealand. Court action had been taken to stop the proposed introduction of a quota management system (QMS) to manage the fisheries resources in New Zealand.
The interim settlement provided for the transfer of $10m cash and 10% of all quota to the Commission and the passing of the Maori Fisheries Act 1989 to embody the interim settlement. A final settlement was reached when the opportunity arose for the purchase of shares in a large commercial fishing company. The Crown funded the purchase and a Deed of Settlement was entered into on 23 September 1992. The Treaty of Waitangi (Fisheries Claims Settlement) Act 1992 was passed to amend the Maori Fisheries Act and to implement the settlement.
Under the amended Maori Fisheries Act, one of the functions of the Commission was to report to the Minister on the allocation of the assets acquired under the interim settlement. These assets have become known as the pre-settlement assets or PRESA. Subject to the power of the Minister to request reconsideration of the proposal, the Commission had the power to allocate PRESA directly. With regard to the assets acquired as a result of the final settlement, the Commission was given the power to put forward proposals for a new Maori Fisheries Act to implement the final settlement, including a procedure for allocating the benefits from the assets which are known as post-settlement assets or POSA.
Allocation of PRESA is required to be made to iwi, which in this context means traditional Maori tribes. The Commission considers that it is obliged to recommend a predominantly iwi allocation system for POSA also. The Commission is also required to take into account, both for POSA and PRESA, clause 4.5.1 of the Settlement Deed, which provides that the settlement is "ultimately for the benefit of all Maori".
The Commission reported to the Minister on 9 May 2003 in a report called He Kawai Amokura. That report set out the Commission’s proposed allocation system and recommended that both PRESA and POSA be allocated through legislation. A draft bill was attached to the report. On 20 November 2003 the Maori Fisheries Bill was introduced into Parliament. It was based on the Commission’s draft bill but with some modifications. The Maori Fisheries Bill is now before the Fisheries and Other Sea-related Legislation Select Committee and that Select Committee is due to report back in early July.
This case concerns the Commission’s recommendation in He Kawai Amokura for the establishment of a trust, Te Putea Whakatupu Trust (the Putea). The Putea was designed to deal with the situation of those who are not able to or do not wish to access the settlement through their iwi. It is proposed that it be funded to the extent of $20m, out of a total current settlement value of some $700m. Its objects were confined in the Commission’s draft bill to fisheries related matters, although that was not the case in the Maori Fisheries Bill before Parliament. The level of funding for the Putea remains the same in that Bill, however.
In the High Court, McGechan J held that the Commission erred to the extent that, pursuant to the draft Bill annexed to its report, the purposes of the Putea were confined to fisheries related objects. In other respects, and in particular as to the quantum of assets to be allocated to it, he upheld the Putea. The central question for this appeal is whether McGechan J was correct to do so.
FURTHER BACKGROUND TO THE SETTLEMENT
In 1986 a quota management system (QMS), designed to manage New Zealand’s fisheries resource, was introduced. As a result, proceedings were instituted in the High Court and claims made to the Waitangi Tribunal alleging that the QMS was unlawful because it affected rights conferred upon Maori either by the Treaty of Waitangi or under customary law. Interim relief was granted forbidding further steps to bring fisheries within the QMS. Negotiations between representatives of the Crown and Maori followed, eventually leading to the interim settlement embodied in the Maori Fisheries Act. The Long Title of that Act provided (in relevant part) that it was an Act:
to make better provision for the recognition of Maori fishing rights secured by the Treaty of Waitangi; and
to facilitate the entry of Maori into, and the development by Maori, of the business and activity of fishing.
The interim settlement provided that 10% of all quota was to be transferred to Maori over a period of four years. The sum of $10m was also provided for Maori fisheries development. The assets to be transferred to Maori under the interim settlement were to be held by a newly constituted body called the Maori Fisheries Commission, now called the Treaty of Waitangi Fisheries Commission. Under the Maori Fisheries Act, the Commission was able to lease but not otherwise dispose of quota for a transitional period that was to end on 31 October 1992.
There were doubts as to the legal ability of the Commission to allocate the quota at the end of that transitional period but it was contemplated by the majority of Commissioners that there would be such an allocation and the Commission devised an allocation scheme. It consulted on its proposals during 1991 and 1992 and, at its hui-a-tau of 25 July 1992, thirteen resolutions were passed relating to the allocation.
At about that time, an opportunity arose for Maori to take an interest in a substantial New Zealand fishing company called Sealord Products Ltd. This led, after negotiation between Maori and the Crown, to a Deed of Settlement being signed on 23 September 1992. The Deed not only provided for the purchase of Sealord but it purported to settle all claims by Maori in respect of commercial fishing rights, both current and future. Maori agreed, among other things, that the QMS was a lawful and appropriate regime for the sustainable management of commercial fisheries in New Zealand waters and agreed to discontinue certain court proceedings.
Under the Deed, the Crown agreed that the Maori Fisheries Commission would be renamed the Treaty of Waitangi Fisheries Commission and that the Crown would pay to it the sum of $150m in three instalments so that it could buy a 50% share in Sealord. Further, it undertook to allocate to the Commission, for distribution to Maori, 20% of the quota in respect of fish species brought into the QMS after 23 September 1992. There were also provisions in the Deed related to the allocation of PRESA.
As a consequence of the Deed and the negotiations between Maori and the Crown, the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 (the Settlement Act) was passed. This provided for the implementation of the settlement and amended the Maori Fisheries Act in a number of respects. Notably, the amendments provided for the Commission to develop allocation proposals for both PRESA and POSA. The resolutions of the hui-a-tau of 25 July 1992 were annexed as Schedule 1A to the Maori Fisheries Act.
There was a lengthy preamble to the Settlement Act outlining the background to the settlement and the Long Title provided that it was an Act:
To give effect to the settlement of claims relating to Maori fishing rights; and
To make better provision for Maori non-commercial traditional and customary fishing rights and interests; and
To make better provision for Maori participation in the management and conservation of New Zealand’s fisheries.
THE LEGISLATION AND THE DEED OF SETTLEMENT
The most significant of the amendments to the Maori Fisheries Act, made by the Settlement Act, was the addition of s6(e). This provided that one of the particular functions of the Commission was:
In relation to the Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992,—
The relevant parts of the resolutions adopted at the hui-a-tau on 25 July 1992 contained in Schedule 1A are as follows:
Additional powers were given to the Commission in section 9(2)(l) of the Maori Fisheries Act to implement the settlement in relation to PRESA. Section 9(2)(l) provides that the Commission shall have the power:
After giving consideration to the matters referred to in section 6(e)(i) of this Act and reporting to the Minister on those matters under section 6(e)(iv) of this Act, and subject to subsection (4) of this section, to give effect to the scheme (if any) included in the report furnished to the Minister under the said section 6(e)(iv) (being the scheme providing for the distribution of the assets held by the Commission before the Settlement Date defined in the Deed of Settlement and being the assets referred to in clause 4.5.2 of that deed).
A new section 9(4) was also added to give the Minister power to request reconsideration of the Commission’s report on PRESA as follows:
The Minister may, at any time and from time to time, but not later than 30 days after the date of the receipt of the Commission's report under subsection (2)(l) of this section, request the Commission to reconsider all or any part of the proposed distribution under that subsection; and the Commission shall reconsider its proposed distribution of assets, amend the proposal, and report further to the Minister accordingly.
Section 3 of the Settlement Act provides that it is the intention of Parliament that the provisions of that Act be interpreted in a manner that best furthers the agreement expressed in the Deed of Settlement. The Deed is also referred to in s6(e) of the Maori Fisheries Act and the pertinent provisions are set out in Appendix 1 to this judgment. They were summarised by this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 at 358, paras 119-122 as follows:
Considerable attention has been paid by the appellants to cl 4.5 which was headed "Distribution of Benefits to Maori", and we therefore summarise this provision. In cl 4.5.1 Maori agreed that the settlement evidenced by the deed of all the commercial fishing rights and interests of Maori was to be ultimately for the benefit of all Maori. It is common ground that this provision was directed to both PRESA and POSA. Clause 4.5.2 required the commission to "consider how best to give effect to the resolutions taken at the annual general meeting of the Maori Fisheries Commission in July 1992" and provided that the commission would be empowered to allocate assets held by it at the day before the settlement date. Obviously this related to PRESA.
Clause 4.5.3 then required the commission to develop, after full consultation with Maori, proposals for a new Maori Fisheries Act consistent with the deed and to report to the Crown within 90 days with a request that it be enacted as soon as practicable having regard to commercial considerations. Any "tribe" with a beneficial interest might request that the Crown recommend to Parliament that the resulting Bill be referred to the Waitangi Tribunal. It was common ground that this provision related to POSA. Clause 4.5.4 contained matters which must be included in the proposals to be developed by the commission. These included a procedure for the allocation of the benefits of the settlement deed which addressed "the questions set out in Annexure A". That annexure, which applies only to POSA, calls for the distribution system to "address the criteria to be applied in identifying iwi and determining if a particular iwi has a fishing interest". It also stipulated that "[t]he scheme will need to address how individual, whanau or hapu interests can be accommodated within the iwi structures" and it said that any distribution system "should aim to achieve a fair allocation of the benefits among Maori".
In cl 4.5.6 the Crown agreed that until such time as a scheme of distribution which satisfied it had been provided by Maori in accordance with the preceding provisions (relating to POSA), it would not introduce legislation conferring any power to distribute to Maori any assets or benefits of either the deed of settlement (POSA) or of the Maori Fisheries Act (PRESA).
The final provision of cl 4.5 was one in which all parties acknowledged that the commission "receives and holds the settlement benefits on behalf of Maori and for their benefit".
We also set out s9 of the Settlement Act as this is important because it extinguishes all Maori claims in respect of commercial fishing:
Effect Of Settlement On Commercial Maori Fishing Rights And Interests
It is hereby declared that
CASES INTERPRETING THE SETTLEMENT
There have been a number of cases where the provisions of the settlement have been at issue, including two Privy Council decisions. All of the parties rely on statements from those cases and it is therefore important to examine them in some detail. The history of these cases is somewhat complicated. The first set of cases concerned whether there should be a preliminary question argued under R418 of the High Court Rules. The next set of cases dealt with the preliminary questions that were formulated by the Privy Council. We have attached as Appendix 2, for reference purposes, part of the chronology supplied by the Commission setting out the timing of the various decisions and the timing of the reports referred to in this judgment.
The first set of cases and the questions formulated by the Privy Council were described by Paterson J in his decision on the preliminary issue, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 (High Court iwi decision) in the following terms (at 289):
The matter for determination is a preliminary question formulated under the provisions of R 418 of the High Court Rules. It has come before this Court by a lengthy process. On 30 June 1995 Anderson J (High Court, Auckland, CP 395/93, CP 562/94, M 1514/94, CP 27/95 & CP 122/95) ordered that a preliminary question be determined. There was an appeal from that order. The Court of Appeal sat as a five Judge Court to hear this appeal and made a declaration that the commission had a duty to ensure any scheme or legislation proposed by the commission pursuant to the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (the Settlement Act) or the Maori Fisheries Act 1989 (the Maori Fisheries Act), include equitable and separately administered provisions for urban Maori. As it said that no useful purpose would be served by the determination of the preliminary point as, in effect, it had been determined, the Court of Appeal allowed the appeal from the order of Anderson J (Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc  3 NZLR 10). The Court of Appeal also determined that the meaning of "iwi" as used in the Settlement Act was "tribe" or more particularly "the people of the tribe". Some of the parties then appealed to the Privy Council (Treaty Tribes Coalition, Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities  1 NZLR 513) which allowed the appeal in part and set aside the Court of Appeal’s declaration as to the duty of the commission in any proposed scheme. It remitted the matter back to this Court for consideration of the preliminary question which it reformulated. In giving the judgment of Their Lordships, Lord Goff of Chieveley said at pp 522-523:
The two questions relate only to PRESA and were answered in the affirmative by Paterson J. The first question was also answered in the affirmative by a majority of this Court. The second was answered in the affirmative unanimously – see Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285. The Privy Council also answered both questions in the affirmative, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 17.
Returning to the decision of Paterson J, we note that the Judge analysed the nature of commercial fishing rights in 1840 as collectively kin-based, being under the guardianship or control of either whanau or hapu in most cases, but in some cases with the tribe or iwi having some "overright". Individual rights of a limited nature also existed. The Judge, therefore, concluded (at 310) that the beneficiaries of the settlement are mainly the hapu who succeeded to the Treaty or customary rights and the Maori who are members of, or who are entitled to be members of, such hapu.
Paterson J also indicated that, in a pan-Maori settlement compensating Maori for the abrogation of rights, there is a need for fairness and compromise. He accepted (at 319) that individuals may have had fishing rights and that current day Maori individuals may be able to enforce commercial fishing rights as members of a communal group which had such rights. The Crown had extinguished such claims by s9 of the Settlement Act. He concluded (at 320) that the Commission had the obligation to ensure that all Maori who had had rights taken from them were able to participate in the settlement. This could not, however, alter the meaning of the statutory provisions which, in his view, required allocation to iwi.
Paterson J noted the changes in Maori society since 1840, and in particular urbanisation, which, it had been submitted, meant that an allocation to iwi would not deliver the benefits of the settlement to the beneficiaries. He said (at 320-321):
In summary these include the fact that 81 per cent of Maori now live in urban areas, at least one-third live outside their tribal influence, more than one-quarter do not know their iwi or for some reason do not choose to affiliate with it, at least 70 per cent live outside the traditional tribal territory and these will have difficulties, which in many cases will be severe, in both relating to their tribal heritage and in accessing benefits from the settlement. It is also said that many Maori reject tribal affiliation because of a working-class unemployed attitude, defiance and frustration. Related but less important factors, are that a hapu may belong to more than one iwi, a particular hapu may have belonged to different iwi at different times, the tension caused by the social and economic power moving from the iwi down rather than from the hapu up, and the fact that many iwi do not recognise spouses and adoptees who do not have kinship links.
He also summarised (at 321) the opposing view, being that iwi to date had not had the means to provide benefits, even to those members living within the rohe. It had been argued, on behalf of iwi, that, unless benefits were allocated to them, they would not be in a position to deliver benefits to their members. The Judge had earlier (at 306) noted that the Tainui and Ngai Tahu land settlements had contributed considerably to the number of Maori claiming membership of those two tribal entities and that there was evidence that the benefits of the settlements were reaching tribal members. He also noted (at 321) that Mr. Tamihere, the executive officer of an Urban Maori Authority, had acknowledged that, notwithstanding the claim of urban Maori, the tribal groups should receive a substantial portion of the allocation.
The Judge considered that iwi should set up structures to ensure that those entitled to benefit from the settlement do not lose their entitlement, wherever they may now live and no matter how strong their present tribal link may be (at 322). The Judge (at 321-322) stated, however, that, if, under a scheme developed by the Commission, individual Maori who would have been entitled to commercial fishing rights or urban or other Maori who had lost their tribal affiliations were not able to participate in the benefits of the settlement, then the matter would be in the hands of the Minister under s9(4) of the Maori Fisheries Act. He warned that it also may require further consideration by the courts.
Paterson J, on the two questions before him, concluded that iwi, in the context of the settlement, meant traditional Maori tribe. His conclusion on the first question was as follows (at 323-324).
Conclusion and Answer The duty of the commission is to endeavour to allocate its assets to iwi by an optimum method of allocation. As noted by the Court of Appeal, in the end the commission itself may have to decide, by majority as a last resort, on a scheme for the Minister’s consideration. Such a scheme will need to give all beneficiaries of the pan-Maori settlement access to the benefits of the settlement and will need to provide adequately for those who do not have close iwi ties at this time .... For the reasons already given the answer to the first part of the question is that the Maori Fisheries Act requires that any scheme providing for the distribution of the assets held by the commission before the settlement date, which the commission includes in a report furnished to the Minister under s 6(e)(iv) of the Maori Fisheries Act 1989, should provide for allocation of such assets solely to ‘iwi’ and/or bodies representing ‘iwi’. Issues concerning representing iwi will be dealt with more fully when answering the second part of the question.
We now turn to the majority judgment of this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 (Court of Appeal iwi decision). The majority first indicated that, in their view, the main question in the appeal concerned the means of allocation and not the ends. A similar point had been made by Paterson J. The majority said at 352, para :
As indicated in the 1992 deed of settlement, all parties acknowledge that the commission ‘receives and holds the settlement benefits on behalf of Maori and for their benefit’. That pan-Maori emphasis also appears in the long title to, and s 5 of, the Maori Fisheries Act 1989. According to para (b) of the title, the Act is to ‘facilitate the entry of Maori into, and the development by Maori of, the business and activity of fishing’, and the first listed of the principal functions of the commission is in the same terms. The second principal function is to grant assistance to any Maori or group of Maori for the purpose of enabling that Maori or group to enter into or continue in or develop the business and activity of fishing. The provisions, in part at least, look to the future and are not exclusively tied to the traditional and historical origins of Maori fishing.
The majority held that it was intended under the Deed that the tribes were to be the beneficiaries of the settlement – see at 372, para . They considered that this conclusion applied both to PRESA and POSA. Of POSA they said at 370-371:
The deed makes no other reference to the intended recipients of POSA. It is very clear that it was contemplating only a distribution to iwi, but on the basis that the iwi must achieve a fair allocation among all Maori. That last requirement of course reflects cl 4.5.1 in which ‘Maori agrees that the settlement [both PRESA and POSA] .... is ultimately for the benefit of all Maori’.
An examination of the whole of cl 4.5, including Annexure A, shows that what is occurring is a tribal settlement – a settlement with Maori in their tribes – and that the benefits which are ‘ultimately’ to be available to all Maori are to be delivered through tribal mechanisms ....
Our study of the deed and its antecedents leads us to the view that this was a transaction between tribal Maori and the Crown for the benefit of all Maori, but through their iwi.
Turning to the Settlement Act, the majority held that this also contemplated allocation through iwi but that the Commission was obliged to put protective measures in place to ensure that the ultimate delivery of benefits from the settlement are enjoyed by all Maori. They said at 373-374:
Section 3 requires that the Settlement Act, including the provisions inserted into the Maori Fisheries Act, is to be interpreted in a manner that best furthers the agreements expressed in the deed of settlement. When the explicit requirement of the resolutions is taken together with the deed’s requirement that the settlement (both PRESA and POSA) is ultimately to be for the benefit of all Maori, it seems to us that the obvious intention of Parliament is that these twin requirements are to be harmonised. The allocation must be to iwi but on the condition that iwi have put in place structures, both tribal and pan-tribal, which will ultimately enable delivery of benefits to all Maori. When s 6(e) is read as a whole, along with the resolutions which it adopts, there is neither room nor need for an allocation going beyond iwi. The safeguards for non-affiliated Maori are the role of the Minister and the commission’s accountability, as a trustee, to all Maori. It must ensure that the necessary protective mechanisms are put in place.
It is worth setting out in relevant part the majority’s conclusions on the allocation question. In summary, they stressed that allocation was to iwi but that the settlement was for the benefit of all Maori. The settlement was of rights possessed by groups of Maori and individuals enjoyed those rights only by virtue of their membership of those groups. The settlement benefits, like the rights, were therefore to be enjoyed through iwi-based mechanisms and not through Urban Maori Authorities (UMA). They said at 374-376:
The appellants are right in their argument that the intention which must govern the interpretation of the Settlement Act is the intention of Parliament, not that of the hui. But when it is so clearly established that the hui had a particular allocation in mind (only iwi could receive an allocation), and there is little or nothing to suggest any departure in the memorandum of understanding or the deed of settlement, then if Parliament had intended anything different – particularly something always likely to be a cause of controversy within Maoridom – it would surely have spelled that intention out with great particularity. Not to do so would have been deceptive, particularly given the absence of any warning to Maori in the parliamentary debates or otherwise that there was such an intention ....
The appellants placed much weight on the argument that the risk of unaffiliated Maori missing out on the benefits of the settlement was so great, if UMA were not involved, that Parliament must have wanted UMA and other non-traditional groupings included for consideration when allocation was in prospect. Again, however, there is nothing in the legislation or in ministerial statements in the parliamentary debates which could lead to the conclusion that the crucial parts of the legislation were framed as a response to any such risk. The amendments made to the Bill during its passage through the House appear to be merely recognising the need for a machinery provision relating to the Minister’s reaction to a proposal for allocation and the need for an explicit power for the commission to make an allocation after the reference to the Minister. If there had been legislative concern about the risk, it would certainly have been addressed in a more direct manner than the appellants assert to be the case. There is, moreover, no reason to think in light of the evidence that any risk that an allocation restricted to iwi, now accepted to require inclusion of a putea or similar mechanism, is significantly, or at all, greater than would still exist even if UMA were to participate directly in an allocation. In the circumstances of New Zealand society it may be impossible to remove completely the risk that some Maori will not receive benefits whatever allocation model is adopted but we do not see that an iwi allocation mechanism will necessarily conflict with or frustrate the purpose of conferring benefits upon all Maori.
We reject also the arguments that .... an individual Maori must be accorded the right to claim his or her right to participate in benefits through the organisation of that person’s choice.
The settlement was of rights possessed by groups of Maori, be they whanau, hapu or iwi. They were rights derived from kinship and marriage and were exercisable by individuals only by virtue of their membership of particular descent-based groups. Mr. Williams is right when he denies that an individual Maori had, in terms of Maori custom, an ability to transport the rights deriving from membership of an iwi, or a component thereof, and to exercise them through another group outside that iwi, or to exercise them wholly individually ....
.... It appears to have been common ground amongst witnesses in the High Court that the ability to exercise a traditional fishing right depended upon whakapapa. Such being the nature of the rights, it is inconceivable that an enactment in settlement and extinguishment of them would without clear language authorise so radical a departure from custom. In this context it is not discriminatory to require benefits to be enjoyed through descent-based groups. The settlement benefits, like the rights, are to be enjoyed on the basis of a descent-based grouping or by a mechanism in which the iwi reach out to those who cannot or will not affiliate, recognising the obligation on them to use their very best endeavours to deliver benefit to all who are entitled to call themselves Maori. Because this obligation is a condition of allocation which the commission has to impose on iwi, urban Maori are not been deprived of their fishing rights without being afforded the opportunity of sharing in the benefits of the settlement.
We also quote an extract from the final observations of the majority. In that section they make it clear that the fundamental requirement of the Deed was that all Maori share in the benefits of both PRESA and POSA. The mechanism for this was to be through iwi, however, and not through the UMA. They said at 377-378:
It is a great pity that so much time, effort and money has been expended upon the preliminary questions when the real issue should be whether the scheme to be promulgated by the commission will adequately meet the fundamental requirement of the deed of settlement, and therefore of the Settlement Act, that ultimately all Maori are to share in the benefits of PRESA, and indeed of all assets vested in the commission. Save in one important respect, and looking at the matter from the perspective of individual Maori, affiliated or unaffiliated to a tribe, it is likely to make little difference whether there is a direct allocation of a part of PRESA to UMA or other bodies not recognised by the commission as iwi, or whether the benefit is delivered through an iwi-administered fund or by another pan-Maori mechanism under the control of iwi ....
The matter which we do regard as the only question of importance appearing to be raised in the current contention between the tribes and UMA is one upon which Mr. Williams spoke eloquently in his oral submissions on behalf of the commission. It is fundamental, in our view, that the implementation of the settlement accords with Maori traditional values, although it will necessarily utilise modern-day mechanisms and the benefits must go to all Maori. We discern that it was this concern with traditional values which caused the Privy Council, with an expression of hesitation, to refer the present matter back to the High Court. The settlement was of the historical grievances of a tribal people. It ought to be implemented in a manner consistent with that fact. With all due respect to UMA, who are formed on the basis of kaupapa not whakapapa, they cannot fulfil such a role. In saying this we do not intend to disparage UMA. They are worthy organisations of great value to Maoridom and to the wider New Zealand community. They are, and should be held in high regard. In their short histories they have accomplished much good and their role in the delivery of benefits emanating from central and local government is vital and increasing. But they cannot legitimately claim to be tribes or the successors of tribes. If, in terms of the Settlement Act, they were to be qualified to receive an allocation, it seems to us that the settlement would have resulted in a situation never contemplated by those who adopted the resolutions at the hui-a-tau. Parliament might then have been seen to have played false with those who participated in the hui and to have done so in a most obscure way. We reject any notion that this is what Parliament intended.
The case went on appeal to the Privy Council, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  2 NZLR 17 (the Privy Council iwi decision). Their Lordships considered that the answer to the first question was clear as a matter of statutory construction. The Commission’s only power to distribute PRESA was conferred by s9(2)(l) of the Maori Fisheries Act. That provides only for distribution under a scheme which gives effect to the resolutions of the hui-a-tau of 25 July 1992. Those resolutions plainly provided for distribution to iwi and that means traditional Maori tribes.
Their Lordships went on to discuss the dissenting judgment in this Court of Gault J. Gault J considered that the settlement did not necessarily require allocation solely to iwi. He said that, if there was a conflict between the purpose of the trust which was for the benefit of all Maori and the specified mechanism for achieving that purpose, then the mechanism should give way. Their Lordships commented that the Commission accepted that any scheme would have to be in accordance with the Commission’s over-riding duty to the Maori people. They said that, if that could not be achieved through a distribution to iwi, then the Commission is not obliged to distribute. They said at 28:
Their Lordships do not think that it is right to construe the statute as imposing upon the commission two potentially conflicting obligations. Section 9(2)(1) imposes no obligation whatever. It confers a limited power but imposes no duty. The reference to distribution being according to ‘the scheme (if any)’ included in the report recognises that, for one reason or another, the commission may not produce a scheme; perhaps because it is not satisfied that any scheme commands sufficient agreement in accordance with the second resolution, perhaps because it is not satisfied that any scheme within the powers of s9(2)(1) could satisfy its trust obligations. Counsel for the commission accepted that any scheme would have to be in accordance with the commission’s over-riding duty and accountability to the Maori people. If that cannot be achieved by a distribution to iwi, the commission is under no obligation to make any distribution at all. If it wishes to make a distribution in a manner which falls outside the powers conferred by s9(2)(1), it will have to seek further statutory authority ....
Their Lordships consider that the only ground upon which a Court could depart from what appears to be the plain meaning of s9(2)(1) would be if it appeared that when the Act was passed it was in fact impossible to have a distribution to iwi which satisfied the trust obligations of the commission. It might then be legitimate to argue that Parliament could not have intended to confer a power which was so restricted as to render it useless and that some other, wider meaning should be sought. Even then, the argument would not be easy. But there is no evidence that consistency cannot be achieved. The commission is confident that it can propose a scheme which will satisfy its trust obligations and one must assume that the Crown, when it entered into the deed of settlement, also thought so. In the absence of any actual scheme, it is impossible to say now that they must be wrong. Gault and Thomas JJ went no further than to say that there was a possibility that the mechanism might fail to achieve its purpose.
Their Lordships then made (at 28) some obiter comments about the meaning of the phrase "ultimately for the benefit of all Maori". They said (apparently reading the reference in clause 4.5.1 of the Deed to "all Maori" as being "the Maori people"):
Their Lordships would also observe, without wishing to preempt what may be further argument in the Courts of New Zealand, that the trust for the ultimate benefit of the Maori people would appear to be a concept of public law which uses the term ‘trust’ only by analogy with the more familiar trust of private law (See the discussion by Megarry VC in Tito v Waddell (No 2)  1 Ch 106 at pp 210 – 219). It employs a very broad concept of benefit, underlined by the use of the word "ultimate", which would not seem to require any immediate and demonstrable advantage for each member of the Maori people. There must be many ways in which the encouragement of an economic enterprise among Maori can be said to be for the ultimate benefit of the Maori people, even though not all are able to participate in the enterprise itself or even share directly in its profits. The trust concept therefore allows much scope for the discretion of the commission, subject to the Minister’s powers under s9(4) to require reconsideration of aspects of the scheme.
Their Lordships then commented on the nature of the settlement, which they saw as a settlement between Maori and the Crown but also to some extent between Maori and Maori. They finished the judgment by repeating the remark of the Waitangi Tribunal that Treaty matters should be for statesmen and not lawyers. They said at 29:
It appears to Their Lordships that the parliamentary sanction given to the resolutions of the hui-a-tau for the distribution of pre-settlement assets formed part of a political settlement, not only between the Crown and Maori but also to some extent between Maori and Maori. Of course it was assumed to be consistent with the overall objective of a settlement for the benefit of the Maori people as a whole. And it is possible that the commission or the Minister may eventually reach the conclusion that consistency is impossible and that the settlement has to be revised. Or a Court may decide that no other conclusion is rationally possible. But Their Lordships do not think it right for the Courts to revise the terms of the settlement now. As the Waitangi Tribunal remarked in the Fisheries Settlement Report 1992 (Wai 307) at p 21, ‘treaty matters are more for statesmen than lawyers’. They will therefore humbly advise Her Majesty that the appeals should be dismissed. As in the Court of Appeal, there will be no order as to costs.
SUMMARY OF HE KAWAI AMOKURA
This case concerns the Commission’s He Kawai Amokura report. We have attached as Appendix 3 extracts from the letter of transmittal of He Kawai Amokura to the Minister of Fisheries as this letter summarises the Commission’s views and processes. We note in particular the comment of the Commission in that letter that the fisheries settlement already represents a significant compromise on the part of Maori. The Commission commented that, in such circumstances, to give to one necessarily reduces the available redress for another and that it had been necessary for the Commission to weigh all competing priorities in the interests of all Maori so as to find a resolution. The Commission commented that the level of agreement to its proposals had been hard won.
In brief, He Kawai Amokura proposes that all fishing quota be allocated directly to iwi. All inshore quota is to be allocated in proportion to the length or percentage of coastline attributed to each iwi. Deepwater quota, on the other hand, is to be allocated on the basis of a 25% coastline and 75% iwi population model. The iwi population figures are based on those claiming iwi affiliations in the 2001 census. Where multiple affiliations were claimed, there is multiple counting. Special provisions regarding the Chatham Islands are to be made whereby all inshore quota is to be allocated to the Chatham’s iwi, with all deepwater quota in the Chatham Zone allocated 50% to the Chatham’s iwi and 50% to all iwi on a population basis.
The Commission considers that quota has a special position in the settlement as it represents the modern day equivalent of the traditional right to fish and that its allocation to iwi appropriately reflects Treaty principles. It said at 62, para E4:
The Commission is required to allocate PRESA, including PRESA quota, to Iwi. In relation to POSA the Commission’s proposal must be consistent with both the principles of the Treaty of Waitangi and the Deed of Settlement. The findings of the Waitangi Tribunal in relation to Maori fishing rights have already been identified above. The Commission considers that the return of quota, as the modern-day equivalent of the traditional right of Iwi to fish, appropriately reflects Treaty principles including rangatiratanga, redress for past breaches and the right to development. This is also consistent with clause 3.2 of the Deed of Settlement, which records the Crown’s obligation to provide the Commission with POSA quota in the form of 20% of any new species introduced to the QMS, and supports the allocation of such POSA quota to Iwi.
The Commission also recommends that ownership of the POSA fishing companies be transferred to a new holding company, Aotearoa Fisheries Ltd (AFL). AFL is then to issue voting and income shares. It is proposed that the voting shares be held centrally by a trust to be established to replace the Commission, Te Ohu Kai Moana (TOKM). Income shares are to be held as to 80% by iwi on a population basis and 20% by TOKM. There are to be restrictions on the sale of the income shares and quota so as to ensure retention of assets for future generations.
It is further proposed that cash held by the Commission be allocated to iwi using a population formula, subject to the topping up of iwi allocations to ensure that all iwi receive an allocation of at least $1m, the payment of the TOKM establishment costs and the establishment of both the Putea and the Te Wai Maori Trust, the latter designed to assist freshwater fisheries initiatives. Iwi are to be the ultimate beneficiaries on the wind-up of any of these post-allocation entities. The Commission recommends that the key components of the model be implemented through legislation and a draft statute is annexed to the report. It also recommends a review of the structures 12 years after allocation commences. For an overview of the allocation model see at 18-22, paras B9-B12 of He Kawai Amokura.
The total assets involved in the settlement (not counting the 20% of quota for species that are later brought into the QMS) are estimated to be worth about $700m, with some $76m in cash and $291m in currently held quota. Approximately 50% of those assets are PRESA. The Commission estimates, at 274-275 of the report, that iwi will in total receive approximately $27.8m annual income from the settlement.
We now set out the considerations that led the Commission to recommend this allocation model. The Commission, in the Executive Summary of He Kawai Amokura, says that the model it puts forward is a composite one, which has had to reconcile a number of competing considerations. It warns that altering one element had the potential to unravel the whole model. It says (at 23, para B13):
Altering or removing one of the elements of He Kawai Amokura has the potential to undermine all of the other elements and unravel the whole. It is a finely balanced set of compromises and structures that is contained in this Report, the presentation of which now has the support of the majority of Iwi and Maori. This Report makes explicit the basis on which the Commission has forged its view and the guiding principles that underpin those decisions.
In order to fulfil the Commission’s task of developing this final allocation model it has:
At 30, para C33 the Commission recognises that fairness is necessary for any allocation model and that this requirement is an objective one. It then goes on, however, to say that fairness must also reflect compromise and balance between all the relevant rights, interests and considerations and that the Commission is, therefore, required to provide a pragmatic solution as much as a legal one. At 30, para C35 the Commission said that it must ensure that the model for allocation of both PRESA and POSA is not inconsistent with the Commission’s functions as set out in the Maori Fisheries Act and the Settlement Act and (at 30, para C36) that it is required to take into account all relevant considerations including:
The views expressed by Iwi;
The views expressed by Maori;
The Treaty of Waitangi;
The Deed of Settlement;
Alleged lease round inequities;
The special circumstances of the Chatham Islands (and any other special circumstances);
How Iwi will ensure that ultimately all Maori benefit;
Dispute resolution procedures; and
That all Maori be treated fairly.
The Commission says that it has taken seven specific principles into account in formulating its recommendations (at 31, paras C39-C46 of the report). In the Commission’s view, the settlement had to be consistent with law, financially viable both for iwi and for TOKM, technically feasible, consistent with tikanga Maori, responsive to social and economic needs, capable of delivering desired benefits and politically sustainable. The Commission considers that it should seek to deliver benefits both now and for future generations in terms of economic wealth creation, influence with Government, influence in the fisheries sector and integrated management of fisheries and rangatiratanga – see at 31, para C45. It then notes (at 32, para C47) that it had been required to ensure a balance between a number of key characteristics. Those of particular importance were:
the nature of the Settlement and the objectives of allocation;
the desirability of immediate allocation against the central management of assets with benefits distributed over time;
Maori custom (tikanga Maori);
economic and social considerations;
the definition and categorisation of the assets in PRESA and POSA;
the formulae for apportioning the benefits of the settlement (He Kawai Amokura confirms the use of coastline length and population) and how they are applied; and
ensuring that allocation is ultimately for the benefit of all Maori.
The Commission explains further (at 32, para C48 of the report) that there was a range of views on the aim of the settlement but that the debate over the last 10 years could be characterised as a tension between two considerations – recognition of traditional tribal rights and the consideration of social and economic needs. The Commission is aware that these themes do not describe the whole spectrum of views about the settlement but they "portray an axis between two polar considerations" – see at 32, C54.
Those who concentrated on the first objective were, in the Commission’s view, primarily concerned with the re-establishment of the relationship between particular iwi and the fisheries approximate to their rohe. The Commission accepts that it is important that any allocation proposal takes account of these traditional relationships and that this is also consistent with tikanga Maori – see at 32, para C50, at 32-33, para C54 and at 34-35, para C68. Those who concentrated on the second objective saw the more pressing need as being the maximisation of social and economic benefits from the settlement. In putting forward its allocation model, the Commission had been mindful of that factor as well – see at 32-33, paras C52 and C54. The Commission considers that the principles of the Treaty require this to be taken into account, given that the essence of the Treaty is forward looking – see at 29, para C30.
The Commission also considers it important that any allocation model recognises the Treaty principle of tribal rangatiratanga and the right to self-regulation or self-management in relation to tribal rights, assets and interests – see at 29, para C28. This means also that it is required to ensure in its allocation that all assets are ultimately distributed to iwi. It takes the view, however, that, although immediate allocation was required for the PRESA assets, there is more flexibility in relation to the POSA assets, at least in the medium term – see at 33, para C56.
The Commission also stresses the need for any settlement to be durable and says that this requires compromise between the competing objectives, as well as acceptance as far as possible of that compromise by iwi and Maori generally. An extensive consultation programme had been undertaken and the Commission is able to report that it has support from 93.1% of iwi, representing 96.7% of iwi-affiliated Maori for its allocation model – see at 58, para D49.
The Commission considers that the level of support it achieved during the consultation process shows that the Commission has appropriately balanced the various considerations. It said (at 30, para C38):
The Commission has had to carefully consider and balance many often conflicting factors and views. The allocation model is, by its nature, a product of this balancing of wide-ranging legal and other considerations, including the many views expressed in the course of the Commission’s numerous consultations with Iwi and Maori over the past decade. The appropriateness of the balance that the Commission has elected to adopt is reflected in the significant support that exists for the Commission to proceed with reporting this model of allocation to the Minister.
As to the requirement that the settlement be for the benefit of all Maori, one mechanism is the Putea, discussed in the next section. However, there are other measures that the Commission considers will ensure that the requirement is met. It considers, for example, that central management of some of the assets will help to ensure that the settlement is ultimately for the benefit of all Maori. It says at 39, para C104:
Concerns have been expressed by some that a significant number of Maori individuals and whanau are uncertain of their tribal origins, have weak associations with their iwi, or live outside their tribal rohe. These Maori may encounter difficulty in directly participating in benefits distributed through Iwi. A key question that the Commission therefore considered was whether the allocation of all assets to Iwi organisations would ensure that the Settlement will ultimately be for the benefit of all Maori, or whether other mechanisms should also be used. In the end, the Commission has determined that the central management of some assets with the allocation benefits over time is necessary to help meet this requirement. This approach is reflected in He Kawai Amokura.
The Commission has also provided for mechanisms to ensure that benefits will reach all members of an iwi. The Commission notes that, while hapu, whanau and individual Maori may be acknowledged as the ultimate beneficiaries of the settlement, they are required to receive benefits through iwi structures and that this is consistent with the settlement being for the benefit of all Maori – see at 29, para C24. The Commission recognises, however, that it is important to ensure that iwi are representative of and accountable to their hapu, whanau and individual members, wherever they may live. Iwi organisations will thus be required to meet minimum standards of structure, accountability and representation before being recognised as mandated to receive allocation – see at 29, para C25 and s9 of the Commission’s draft Bill. Iwi must also make suitable arrangements to ensure benefits flow to all members of their hapu and whanau, including urban iwi members living outside their tribal rohe. This is to be achieved by iwi improving structures and forming relationships with representative Maori organisations, particularly UMA – see at 40, para C108.
Mandated iwi organisations, and the ongoing requirements imposed upon them, are discussed at 104-109, paras E267-297 of the report. The constitutional requirements set out are stated to be minimum standards that must be met and implemented before any recognised iwi organisation can become a mandated iwi organisation. Schedule 7 to the draft Bill attached to the report sets out kaupapa that must be included in the constitution, trust deed or rules of a mandated iwi organisation. The first eight kaupapa relate to iwi representation and distribution principles and requirements. These are set out in Appendix 3 to this judgment. We note in particular, Kaupapa 6 which requires iwi to make ongoing efforts to add members to the register of those who affiliate to the iwi by whakapapa and Kaupapa 1, which provides that the constitutional documents of a mandated iwi organisation must:
Acknowledge the mandated iwi organisation’s obligation to act ultimately for the benefit of all members of the iwi for fisheries settlement purposes irrespective of where they reside.
The Commission (at 109, paras E293-E294) notes that effective ongoing compliance with the requirements set out in the kaupapa is critical in order to ensure that the settlement is ultimately for the benefit of all Maori. It will be for iwi members to police the requirements through the dispute resolution measures provided for both in the iwi constitutions and by the legislation. The Commission considers that there will be an effective sanction to ensure compliance as there will be the power to withhold the distribution of dividends from AFL and future quota allocation – see at 109, para E297.
There are other initiatives of the Commission to assist iwi to get in touch with their members, such as the iwi helpline established in 1996 and the Maori Registration Service, which is a project designed to complement iwi registers by direct link with the electoral roll – see at 119-120, paras F47-57. We note that there is disagreement between the parties as to the effectiveness of these measures.
STRUCTURE OF AND REASONS FOR THE PUTEA
The Commission recognises in He Kawai Amokura that, both in relation to PRESA and POSA, it has an obligation to ensure that the settlement is ultimately for the benefit of all Maori and that, if it does not believe that this can be achieved, then it cannot reasonably promote its proposal for allocation – see at 39, para C102. The Commission is, however, satisfied that its model achieves that object. It considers that the Putea is a further mechanism to ensure that this requirement is met for PRESA. It says that it will reduce the risk that Maori who do not know the identity of their iwi or who do not have strong connections to their iwi could be excluded from accessing the benefits of the settlement – see 88, para E160. For POSA the Commission considers that the central management of the assets creates long term security in this regard. At 39, paras C106 and C107 the Commission says:
The Commission has no discretion to allocate PRESA assets to non-Iwi organisations, due to the Courts confirmation that PRESA is to be allocated solely to Iwi. However, the Commission considers that, in view of Iwi support, the establishment of a fund accessible to all Maori, Te Putea Whakatupu Trust, will assist in providing wider access to the benefits of the Settlement. The Commission believes that Te Putea Whakatupu Trust (which is an enhancement of the Development Putea proposed in the Commission’s 1998 PRESA allocation model) ensures that the benefits of a proportion of the settlement are ultimately available to Maori who do not know, or choose not to associate with, their Iwi.
In relation to POSA, the Commission considers that the long term security of the Settlement and wider Maori participation in the benefits of the Settlement will be assisted through the central management of the Commission’s corporate assets.
The Commission says that it chose the Putea model because it would have been unfair to expect iwi generally, and in particular iwi with large unaffiliated Maori population domiciled in their rohe, to apportion part of their allocation for access by those Maori who do not affiliate. This would create disparities depending on the location of particular iwi – see at 88, para E161. Iwi obviously agreed with this as, in its consultation process, the Commission achieved an 89.66% level of support of recognised iwi for the Putea – see figure 4 at 59 of the report.
The Putea is to receive $20m of PRESA cash as capital, with the possibility of additional discretionary payments by TOKM – see at 89, para E171. The $20m is expected to be provided to the Putea in year five after the transitional funding requirements of AFL and TOKM are met. In the meantime, funding of the Putea is to be achieved by payments of "up to" $1m per year. This will allow the continuation of some scholarship programmes currently underway – see at 118, para F41. Even after capitalisation, however, the Putea will only have the power to made distributions from net income rather than capital. The Putea is to be reviewed after six years and thereafter to coincide with the TOKM review. In the event of a winding up, the Putea assets will go to charitable trusts set up by the various iwi – see at 90, paras D180-181.
All Maori are entitled to apply for distributions from the Putea. However, the expectation is that "the development of human capital of iwi members will be substantially funded by the iwi concerned." – see at 88-89 para D169. The Putea trustees may give different weighting to applications for assistance by Maori who do not live in their rohe, or do not have any connection with their iwi, or have not identified or associated with their iwi – see at 89, para D170. Clause 36 of the Draft Bill attached to the report provides that the purpose of the Putea is to receive and manage assets on behalf of beneficiaries of the Deed of Settlement in order to promote various fishing related outcomes set out in clause 36(a)-(e) (see at 182-183 of report). It then provides a form of priority for non iwi affiliated Maori in clause 36(f) by providing that the promotion of those objects must be achieved:
with a commitment to ensure that benefits are made available as widely as possible to Maori after having regard to the extent to which iwi are promoting or able to promote those purposes.
The wording in the Bill currently before the Select Committee, while more favourable to urban Maori, still does not give them absolute priority. The restriction to fishing related objects has, as indicated earlier, not been retained.
DEVELOPMENT OF THE PUTEA PROPOSAL
We now set out the background to the Putea proposal. In 1995, various UMA filed proceedings against the Commission seeking allocation of a portion of the settlement assets. At the Commission’s hui-a-tau on 26 July 1997, those litigants circulated a proposal that all quota be allocated to iwi but that 20% of the PRESA cash and shares be allocated to UMA. At that stage, we understand that the PRESA cash was approximately $30m. It is uncertain what the value of the shares was. The shares were valued in the next consultation document in November 1998 at $45m – see Report of the Proposed Method of Allocation of Pre-Settlement Assets (November 1998) at 94. If the 1998 value is taken, the proposal was for funding of $15m, that is three quarters of the current $20m funding level. At that stage, too, the proposal only concerned PRESA and not POSA. It was, however, also made before the High Court iwi decision of Paterson J which was delivered on 4 August 1998.
The Commission, it appears, thought that some provision along the lines suggested by the UMA would assist in alleviating UMA’s concerns. The establishment of a development Putea, which would be a contestable fund accessible by all Maori for use in various development initiatives, was first presented to the Commission on 26 August 1997 by one of its then Commissioners, Mr. Dewes. The Commission accepted the proposal and it was included as a separate item for presentation and discussion at consultation hui in September and October 1997. Following those hui, Taumata Paepae considered the proposal and requested that the Commission develop it for further consideration. Taumata Paepae was a working group formed after the 1995 hui-a-tau by the Commission and Area One Consortium and the Treaty Tribes Coalition, who had agreed to adjourn their legal proceedings against the Commission.
In light of this request and the fact that there had been little outright rejection of the proposal at the consultation hui, the Allocation Subcommittee of the Commission recommended that it be put on the Commission’s work plan. This was approved by the Commission at its 28 November 1997 meeting. Commission representatives also met with representatives of UMA during this period. As a result, the Commission agreed to establish a development Putea working party comprising an urban representative, Mr. John Tamihere, a iwi representative, Mr. Rei and a Commission representative, Mr. Dewes. The working party was to report back to the Commission by early March 1998. It met on six occasions and a number of proposals were tabled and considered at those meetings. By August 1998, the working party had agreed that the vehicle for the Putea should be a trust but no agreement had been reached on the quantum or whether the majority of trustees should be urban or iwi representatives. As the working party could not reach agreement, it did not continue meeting.
On 20 August 1998 Mr. Tamihere prepared a paper in which he suggested that the assets of the Putea should be focussed on Maori living in major urban areas and that the quantum should be no less than $20m, plus the Crown shareholding in the fishing company, Moana Pacific. In a paper prepared for the Commission by a staff member on 4 September 1998 and considered and approved by the Commission at its meeting on 16-17 September the suggested quantum for the Putea was set at $10m plus the shares. The Commission staff member, in recommending that figure, expressed the view that the $10m figure was appropriate because it represented the initial amount given to the Commission by the Crown in 1998 for Maori fisheries development and constituted at that time approximately 20% of PRESA cash. He also said that a figure greater than $10m would not receive iwi agreement.
It was envisaged that the Putea’s primary purpose would be to provide access to the benefits of the settlement to any person who is Maori. Distributions made from the funds would, however, be prioritised in favour of those applications that catered for Maori living outside their tribal rohe. The structure of the Putea was set out at 33-34 of the Commission’s November 1998 Report. The description from that report is set out in Appendix 5. As can be seen, the structure of the present Putea is essentially the same as envisaged in 1998. The Putea proposal was still proceeded with by the Commission, despite the High Court iwi decision, but that decision no doubt reinforced the Commission’s view that iwi agreement was necessary before a Putea could be set up.
In that report, the Commission, as well as discussing numerous other allocation models, gave its reasons for rejecting two alternative models for providing benefit to Maori who lived outside their rohe. The first of the two models appears to have been the UMA proposal discussed at para  above, whereby 100% of all quota was to be allocated to iwi but shares and cash were to be allocated on the basis of 80% to iwi and 20% to UMA. It was envisaged that the assets allocated to UMA would be held by a company with the shares in that company held by a trustee for and on behalf of all urban Maori. The rationale put forward for the model was that UMA would be able to deliver services to the thousands of Maori living in urban areas in a more effective manner than iwi.
The Commission said that it was not clear that the model provided a more effective means of delivering benefits to urban Maori than allocation through iwi or through the Putea proposal. The Commission pointed to the difficulty of identifying suitable groups to allocate funding to, as well as the difficulties of defining urban Maori. It noted that this latter term was itself problematical as many Maori living in cities still had links with their own tribal structures. The Commission also noted that, underlying the question of acceptability of the model, was the difficult issue of whether assets received by the Commission in settlement of a Treaty claim should be used to fund the provision of social services to urban Maori as many believed responsibility for that lay with the government.
It was also noted that the proposal had been rejected strongly and unanimously by iwi during the consultation process to date, the main reason being that it is the traditional responsibility and special role of iwi to provide for their own members wherever they may live. The Commission also remarked that the allocation to an organisation other than iwi was likely to breach the requirement that allocation of PRESA be to iwi.
The other model discussed in the 1998 report for providing benefit to urban Maori was termed the Ngati Whatua model. It had been put forward in the 1994 consultation round and had also been mentioned during the 1997 consultations. In essence, that model suggested that 50% of deepwater quota should be allocated on the basis of iwi coastline, 25% on the basis of iwi population and a further 25% on the basis of total Maori living in the rohe. That extra 25%, it was suggested, would be shared with UMA in the area concerned. The Commission stated that the biggest weakness of the model was that it lacked specific details of the mechanisms by which the resident non-affiliated Maori population would receive any benefit from the extra allocation. Although it was consistent with the statutory requirement to allocate solely to iwi, it would be difficult, in the Commission’s view, to envisage an appropriate accountability mechanism that would ensure that all Maori in the rohe were able to benefit from the iwi allocation.
The Commission also pointed to a major technical problem with implementing the Ngati Whatua model in that it required, in addition to information about iwi coastline and iwi population, information on the total number of Maori living in the rohe of each iwi recognised by the Commission for fisheries allocation purposes. It would be difficult to extract that information from the census and thus there would be considerable transaction costs involved in setting those numbers, as well as an element of double counting where a large number of affiliated Maori lived in the tribal rohe. In terms of whether the model was capable of attracting substantial agreement among iwi, it was noted again that iwi had consistently stated in the consultation process that it is the traditional responsibility of iwi to provide for their own members, wherever they may live. It was thus unlikely, in the Commission’s view, that this model would be acceptable to iwi.
In the Commission’s report of March 1999 (entitled Full Particulars of the Optimum Method of Allocation to be Included in the Report to the Minister), it was noted (at 25) that the development Putea proposal was the most controversial component of the model then proposed. While a majority of iwi submitters supported the Putea development concept, a key issue was control of the Putea and the source of funding and quantum. The Commission noted in that report (at 12) that:
A $10 million figure which will comprise of the cash component of Putea was arrived at by balancing the need for the fund to be large enough to provide meaningful assistance to beneficiaries, but not so large as to impair the capacity of iwi to use their share of the cash assets to meet the needs of their members directly. Setting the fund at 20% of the total PRESA cash assets reflects the Commission’s view that the primary route by which individual Maori can access benefits of the settlement is through their iwi – the Putea plays a secondary role.
The Commission has proposed that this Putea be supplemented by shares in Te Kupenga Ltd which are currently held by the Guardian Trust on behalf of Te Puni Kokiri. This proposal is yet to be confirmed and the establishment of the Development Putea is not contingent upon that confirmation.
The Commission has decided to provide for a review of the operation of the Development Putea within 5 years of its establishment in order to assess its continued usefulness. This recognises that following allocation Iwi will be in a better position to provide for all their members (even those with tenuous links) and the Putea may no longer be a necessity.
The main iwi concern with the two alternative models that were rejected in the 1998 report was that they cut across iwi responsibility to their members. Similar concerns were expressed in submissions regarding the Putea. Submitters were also concerned that control of the Putea would be with UMA. In this latter regard, the Commission noted that the High Court iwi decision meant that the fund had to be constructed to ensure iwi control since the obligation to ensure all Maori benefit from the settlement fell to be discharged by iwi. The Commission also commented on the concerns that the Putea would undermine iwi by undermining iwi ownership of fisheries assets and by assuming that iwi cannot reach all their members. The Commission said (at 26):
The Commission considered these issues at the Special Allocation Meeting. It took the view that the Putea is not intended to legitimise the perception that Iwi cannot reach all their members. While acknowledging Iwi control, the Putea seeks to address present difficulties arising out of current lack of Iwi resources to assist in benefit distribution and the large numbers of Maori who live away from the tribal rohe or do not know their Iwi. The Commission considered that what may need to be recognised, however, is that this situation could well change over time in which case the basis for the Putea may cease to exist. In that regard, the Commission decided that provision for a review of the Putea will be necessary to allow for such a possibility.
In the Commission’s next report, He Anga Mua, of December 2001, four allocation models were presented for discussion. The earlier reports had only covered PRESA, but, in 2000, new Commissioners had been appointed to the Commission. The new Commission considered that, given the time it was taking to allocate PRESA, it was sensible to look at PRESA and POSA together.
The Commission (at 27 of He Anga Mua) had this to say about the necessity of catering for those uncertain of their tribal origins or who had weak associations with their iwi:
There are concerns that a large number of Maori individuals and whanau are uncertain of their tribal origins or have weak associations with their tribes or live outside their tribal rohe. These Maori may encounter difficulty in participating in the benefits distributed to Iwi. It is alleged that these Maori may be better looked after if there was an ability to distribute some benefits directly to urban Maori organisations or hapu and other sub-tribal groups.
We presently have no discretion to allocate PRESA assets to non-Iwi organisations, due to the Court’s confirmation that PRESA are to be allocated solely to Iwi. However, some form of development putea may be possible with Iwi support.
We also consider that Iwi should make suitable arrangements to ensure that benefits flow to both their hapu and whanau and to urban Iwi members living outside their rohe. This could be achieved by improving Iwi structures (including access to governance processes) and by Iwi forming relationships with and providing funds to other representative organisations.
Non-Iwi participation in the benefits of POSA could also be generally assisted through the retention of core POSA assets within a central management body or putea. This could be included in the POSA legislation.
Of the four models discussed in that report, two did not contain a Putea proposal but those models envisaged the central management of a large proportion of the fisheries assets rendering a Putea unnecessary. The third model had fewer assets centrally managed and included a Putea. The fourth model allocated most of the assets to iwi. The Commission commented that this last model required a development Putea as a measure to ensure that the settlement would be ultimately for the benefit of all Maori. In both cases, the quantum of funding for the Putea was set at $20m. For the fourth model (which appears to us to be the closest to that finally adopted) $10m was taken from PRESA and $10m from POSA.
In the Commission’s next report, Te Ahu Whakamua, released in August 2002, the Commission continued with the proposed development Putea with a funding level of $20m and this proposal, as has been seen, was maintained in He Kawai Amokura.
In a submission dated 26 September 2002 on Te Ahu Whakamua, Mr. Thompson and his remaining fellow plaintiffs in this proceeding submitted that a much greater amount of money should be made available for the Putea. They pointed out that the $20m proposal represented just 2.86% of the total assets compared to the 18.15% of Maori who said that they did not know their iwi in the 2001 census.
In their submissions on Te Ahu Whakamua, the four UMA also complained about the level of funding of the Putea and suggested funding be benchmarked against available census data relating to unaffiliated Maori. The UMA said at para 4.18 of their submission:
It is proposed that $20m will be vested in the Putea Trust. This is less than 3% of the total value of PRESA and POSA. In the context, this seems a wholly inadequate sum to address the very real needs of the Maori communities served by the UMAs. On that basis UMA submit that the Putea should enjoy an income share of the profits from AFL or similar company. The share should be benchmarked against available census data relating to unaffiliated Maori. This will better secure the objective of benefit for future generations and fairness among Maori.
THE HIGH COURT JUDGMENT
The current case was heard before McGechan J from 17-20 November 2003. It was heard together with another application for judicial review on the part of UMA. The UMA review application challenged the limitation on the purpose of the Putea and alleged that there had been a failure to give adequate preferential weight to urban Maori. It did not, however, follow up the submissions on Te Ahu Whakamua and challenge the level of funding of the Putea. The UMA have not appealed against McGechan J’s decision.
In his combined judgment on the two proceedings, given on 28 November 2003, Alexander Watson v Treaty of Waitangi Fisheries Commission (HC AKLD CP171/97 28 November 2003), McGechan J first addressed the claims of error of law. It was alleged that the Commission had assumed that the objects of the Putea must be confined to fisheries related matters. The Judge decided that there had been no assumption giving rise to an error of law. While reference had been made to the Commission’s statutory functions pursuant to ss5 and 6 of the Maori Fisheries Act, these had not been the sole determinant of the purposes of the Putea.
The Judge further found that the Commission had not erred in the draft Bill by failing to allow the trustees to give different weighting to applications from urban Maori. The Judge concluded that, while the wording of the proposed clause 36(f) was clumsy, it did afford some preference to those not able to access benefits through their iwi. Finally, it was not an error of law for the Minister not to request the Commission to reconsider the Putea proposal when it was submitted to him. The Minister is not obliged at law to request reconsideration and there is the option of other cures, such as legislation, if a report is considered unsatisfactory.
The second set of allegations concerned the reasonableness of the Putea model. It was argued that it was unreasonable to restrict the objects of the Putea to fisheries related matters when the distribution of settlement money directly to iwi did not carry with it the same limitation.
The Judge observed that the standard of review when determining whether an administrative action is unreasonable varies according to subject matter. Where the subject involves broad policy or political considerations, courts will be more prepared to defer to the decision maker – see Wellington City Council v Woolworths (No 2)  2 NZLR 537. However, where the matter will have a direct effect on individual rights, closer scrutiny is necessary – see Pring v Wanganui District Council (1999) NZRMA 519.
We note at this point that all parties accept McGechan J’s analysis of the law in this regard, although Mr. Millard would have formulated the test slightly differently. They differ on the application of the test, however. The Crown and the Commission consider that this case relates to matters of general policy given to a specialist Commission to decide and that it is not a case affecting individual rights. Mr. Thompson’s position in the High Court (and, as we understood him, in this Court too) was that this is a case where heightened scrutiny is required.
The Judge began by setting out the basis for the Putea. He said that the 1992 settlement extinguished Maori fishing rights and interests and that it was "ultimately for the benefit of all Maori" (clause 4.5.1 of the Deed). The reference to "all Maori" in context quite clearly, in his view, extended as far as individual Maori. He said, however, that the settlement in relation to PRESA, while to be for the benefit of all Maori, was to be effected through relevant iwi, that being the effect of s6(e)(i) Maori Fisheries Act 1989. Iwi, in this context, means a traditional tribe. It does not include UMA as such.
McGechan J recognised that this created a problem in relation to Maori who do not know their iwi, or for whom it is impracticable to connect with their iwi. They cannot look for benefits from an iwi they do not know or from an iwi with which they cannot in practical terms connect. The Judge noted that the solution, which had been under discussion for some years, was for iwi acting through the Commission to form a trust (Putea) to cater for Maori in that position. The concept received judicial and tribal support. The Judge noted that this was not surprising. It was not a matter of grace. It was a matter of discharging an obligation to ultimate beneficiaries wherever they may be.
MeGechan J considered that this aspect of the case concerned a narrowly focused enquiry rather than truly broad policy considerations. He concluded that the imposition of the restrictions as to purpose under the Putea was not a decision a decision maker could reasonably make. There was no tenable justification for restricting benefits to urban Maori by imposing limited fisheries related purposes on the Putea when no such limitations are placed upon the benefits available to other Maori through iwi. The factors relied upon by the Commission, as important as they might be, did not provide a logical explanation for limiting the distributions under the Putea but not in relation to iwi. He said (at para ):
I think what has happened can be gathered from the affidavit by Mrs. Glavish. It is not likely she was alone. There is a perception that a Putea for urban Maori does not reflect obligation, but is merely aroha. There is an added perception that fisheries assets should be used only for fisheries purposes. Those lead on easily to a view that urban Maori cannot complain if they receive benefit with strings on, and that strings tying benefits to fisheries training should be imposed. Such training is seen as useful, and this is a way to achieve it. I can understand these perceptions, but they are misplaced in law. Urban Maori are entitled to ultimate benefit of settlement assets as part of all Maori. It is not mere aroha. Iwi unable or unwilling to make effective provision through iwi mechanisms must see it is done in other ways. The Putea is that way. As this is a matter of rights, there are to be no discriminatory strings.
As a result, the Judge declared that the restrictions proposed for the Putea in clause 36 of the draft Bill were unreasonable and therefore invalid. This finding is not under appeal and indeed, prior to McGechan J’s judgment being released, the Bill was placed before the Select Committee with the restriction on the objects of the Putea removed.
The third set of arguments before McGechan J also concerned a claim that the Putea model was unreasonable. However, these allegations were directed at the structure and funding of the Putea itself rather than its objects. As indicated above, the UMA did not challenge the funding of the Putea and, in terms of structure, apart from the limited objects, only challenged the lack of priority for urban Maori.
On behalf of Mr. Thompson and his then fellow plaintiffs, it was argued that the Putea model was unreasonable for a range of reasons, including that it would have only "very limited" cash each year for distribution, that it could not make quota available to assist pan-Maori or urban Maori bodies to develop their own educational or training schemes, that it was only funded to approximately 2.86% of available assets ($20m out of $700m settlement assets), that it could have a life limited to one year after full funding and be constantly faced with termination, that it could not access capital, that it was open to applications from iwi and that it was likely to be used extensively by iwi and close affiliates pending full allocation of quota to iwi.
The Judge did not consider that the other heads of complaint, either individually or in total, amounted to unreasonableness in the administrative law sense. While the funding of the Putea was not large in relative terms, and it would have been useful if the Putea had its own quota, neither of those factors made the Putea unreasonable. We note that Mr. Thompson now accepts that it was not unreasonable for the Commission to consider that quota had a special character and thus that it should be allocated to iwi. The other matters remain as issues in this appeal.
With regard to funding, the Judge saw this as falling within the area of the wide policy and compromise functions of the Commission. He said:
The limited funding of the Putea, (presently and in prospect), and its correspondingly limited ability to distribute, squarely raise questions of relative allocations of assets. This is a central issue, falling squarely within wider policy and compromise functions of the Commission. It is a major aspect of the delicate balance which has been required. It is not a limited and segregable matter like the purposes of the Putea. Changes in the degree of funding of the Putea could have profound implications for other shares and overall consensus. I accept the Putea in relative terms is not large, but given such surrounding considerations I cannot say its funding and distributive capacity, whether absolutely or in a comparative sense, are unreasonable in an administrative law sense.
The Judge also accepted that it was likely that iwi would try to use the Putea heavily when it was first set up, until iwi received their own allocations. However, it was open to the Commission to view this as essentially a transitional problem and accordingly the decision was not unreasonable in the administrative law sense.
The final set of arguments focused on an alleged breach of duty by the Commission to
comply with the Maori Fisheries Act 1989,
devise schemes in a manner consistent with the Deed of Settlement,
act in accordance with the Treaty of Waitangi and
act impartially as between beneficiaries, except to the extent that partiality is required under the Deed or the Maori Fisheries Act.
It was said that a Putea with limited funding, limited life and limited purposes, that lacks quota and is in the context of a scheme that allows iwi access to allocation benefits for unlimited purposes in perpetuity as well as access to the Putea, does not fulfil the obligation that the benefit of the settlement be ultimately for all Maori.
The Judge was satisfied that there is a statutory duty on the Commission, when formulating a scheme for allocation of PRESA, to
see that distribution was ultimately for the benefit of all Maori, including individuals, and,
see that distribution was fair as amongst Maori.
Parliament would not consciously have unfairly discriminated against those unable to benefit through their iwi. This conclusion was based (apart from common sense) on the words of the Deed of Settlement, ss6 and 9 of the Maori Fisheries Act, s3 of the Settlement Act, the general principle that Courts will interpret statutes so as to conform with Treaty of Waitangi principles, including duties of impartiality and good faith, and observations of this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 – see paras -.
McGechan J said that the iwi right to allocation comes with the baggage of both fairness and "ultimate benefit" requirements. He said (at paras  – ):
I do not ignore the decision of the Privy Council  2 NZLR 17 confirming that distribution is to be to "iwi" in the sense of traditional tribes. That did not shut out other obligations. The way in which the Commission would achieve the objective of ultimate benefit to all Maori, within the framework of tribal allocation, was put to the Privy Council by the Commission as being distinct from the two "iwi" questions before it and as a matter for future substantive proceedings (23, lines 4-26). Counsel for the Commission accepted "any scheme would have to be in accordance with the Commission’s overriding duty and accountability to the Maori people" (ibid para 19). The Privy Council observed that the "trust for the ultimate benefit of the Maori people" employed a "very broad concept of benefit" which "allows much scope for the discretion of the Commission" (ibid para 21). The decision does not obviate the obligation on the part of the Commission to see that iwi observe this duty of ultimate benefit to all Maori, and of fairness amongst Maori. The right to allocation comes with that baggage.
I accept the submission that the Commission had a discretion how to discharge that duty, at least in the sense no statutory directions were given. Beyond consultative obligations arising through Resolution No. 2 in Schedule 1A, the field was open. The statutory duty is concerned with end, not with means. However, exercise of that discretion could not be whimsical. The Commission was obliged to adopt the means best calculated to discharge its duty. If one method clearly was superior to others, it could not be right to dilute benefit by adopting an inferior method.
The Commission proposed a Putea (a trust). While it was a concept which evolved over time, it gained and carried immediate support amongst iwi. I am not surprised. There are obvious difficulties in some special regime under which iwi, following receipt of allocation, somehow are to see to movement of benefits to members who do not know their iwi, or who cannot practicably connect with it. I regard that iwi support as evidence, in its own way, that a Putea concept was the best of a number of possible approaches, all necessarily somewhat imperfect.
McGechan J said that he had already held that these duties had been breached to the extent that the Putea limits access only to those who seek a direct involvement in fishing. This, in his view, did not fulfil the obligation to ensure that the benefit of the settlement is ultimately for the benefit of all Maori people. However, the size of the Putea did not amount to a breach of the Commission’s duties. While the Putea funding was not large, there had been many competing claims on the assets. He said (at paras -):
The onus of proof lies on the plaintiffs.
In that regard, it must be kept in mind the Commission is not duty bound to produce blood from a stone. It would be one thing if the settlement assets were adequate to satisfy all claims in full. It is another when they are not. The total of some 700 million dollars (approximately 50% of which is PRESA) is large in absolute terms, but there are many claims upon it, not least so far as PRESA is concerned. The Putea certainly could do with more funding, but the Putea must take its place along with other claims. A reciprocal applies. The obligation is to see to the ultimate benefit of all Maori, not just of urban Maori. It is not a simple matter of total funds and (debatable) percentages of urban Maori.
There is nothing even approaching the comprehensive evidence as to relative justifiability of all claims which a Court would need to make such a determination, even if that monumental task proved possible and within the limits of justiciability.
Breach of statutory duties arising from size and funding of the Putea is not proved.
He also rejected the various criticisms of inappropriate iwi control of the Putea, primarily because of the responsibilities of the trustee to act with independence. He said (at paras  and -):
Proposals for reviews do have the effect of allowing for termination after the six year point, and thereafter. However, the provisions of the scheme to that effect should not be viewed in a vacuum. The political consequences of any premature or otherwise unjustified move must form a very real control. Further, it is understandable that with a new concept like the Putea, which may prove unworkable or simply fail, exit provisions of the character proposed would be thought appropriate. Further, there is some expectation, realistic or otherwise, that iwi mechanisms may some day be adequate to serve urban Maori. The termination possibilities do not make the Putea unreasonable in an administrative law sense ....
Further, I do not see the various detailed criticisms as to structure as establishing breach of duty. To some extent that is because I have no present reason to assume the Commission (or its successor) will act in bad faith. The trustee corporation which will run the Putea is a trustee, and as such will be subject to the supervisory control of the Court if necessary. It will be required to act with necessary independence. That goes very much to the possibilities of premature winding up, or preference for iwi applicants, which the plaintiffs fear. I do think it likely the Putea will have little to spare for the first five years, particularly given its assumption of the 1994 charitable trust obligations, but that at heart is a funding issue as already considered.
Breach of statutory duties arising from structure or aspects of the Putea (other than purposes) is not proved.
The Judge, however, rejected the view that the other mechanisms put in place by the Commission would eliminate in time the problem of those who could not access benefits through their iwi. He said:
I do not accept that other mechanisms ("suite" or otherwise) are a sufficient channel to permit restriction of Putea purposes as proposed. There is a sharp dispute as to the practicability and prospects of urban Maori identifying and reconnecting with iwi. There are overstatements on both sides. Asserted difficulties for adoptees, and asserted virtues of the Helpline are examples. Incentives perhaps are limited, given that allocation elements based on population are frozen on the 2001 census, but I accept that efforts are being made, at least by larger and more organised iwi; and that some urban Maori – particularly the more articulate and confident, and those with a good idea of where to start – will identify. That may increase if it becomes known there may be money or employment available. However, the practical difficulties for those who live at a distance, have lost connections, have lost cultural knowledge, are impoverished, or are ignorant, young or unsure (or, it is said, female) are very considerable. There are also special cases, including Ratana and those whose "iwi" are the subject of dispute as to existence. It is simplistic to assert urban Maori can and should locate their iwi. On the evidence, the real world presents real difficulties. Iwi benefits will not reach those whom iwi do not know. Iwi mechanisms, present and prospective, are not effective to a point where a Putea with highly restricted objects will suffice.
In making the requisite declarations for relief in relation to the limited purposes of the Putea, the Judge made it clear that he was not voiding the whole report or casting doubt on the right of Parliament to consider the Bill before it. He finished his judgment in this manner.
|||A footnote. As the Waitangi Tribunal has observed, and the Privy Council has endorsed, Treaty matters are more for statesman than lawyers.|
MR. THOMPSON'S SUBMISSIONS
As indicated above, there were a number of other plaintiffs in the High Court. Mr. Thompson is now the only remaining appellant. He is Ratana and, in accordance with that religion, considers that Maori should be one people. In his view, an iwi based allocation system militates against that goal. As a result of his beliefs, he would be dependent on the Putea to access any benefit from the fisheries settlement. While he is not a representative plaintiff, his position is that there are significant numbers of Maori who are likely not to be able to benefit through their iwi (perhaps in excess of one third of Maori) and thus that there will be a large number of Maori dependent on the Putea.
It is primarily the funding and the uncertain future of the Putea that is being challenged in this appeal. Mr. Thompson agrees that the Putea is an appropriate vehicle for the delivery of benefits of the settlement to those who cannot or will not receive benefits through their iwi.
Mr. Millard QC, for Mr. Thompson, began with an analysis of the Deed of Settlement and the various court decisions. He then submitted that this is a case where heightened scrutiny by the courts is necessary, involving as it does economic and Treaty rights. In Mr. Millard’s submission, in order to comply with its statutory duties, the Commission had to recommend an allocation scheme for both PRESA and POSA that fulfilled the following requirements:
All Maori must be able to access the benefits of the settlement. The Deed of Settlement requires the settlement to be for the ultimate benefit of all Maori and, under clause 5.1, all claims with respect to commercial fishery rights and interest of Maori are deemed satisfied. He submitted that each individual Maori had an interest in fishing assets through his or her hapu and these interests are extinguished by the Deed of Settlement. Each individual Maori therefore should have the right to access benefits under the settlement. While encouraging economic enterprise among Maori may be for the ultimate benefit of the Maori people as a whole, that is not the same as giving benefits to "all Maori". The obiter comments of the Privy Council in Te Waka Hi Ika o Te Arawa Fisheries Commission  2 NZLR 17 should, therefore, not be followed. In any event, the Commission had not tried to analyse any such "trickle-down" effect.
The degree of access needs to be fair to all Maori, including Maori who do not have close or any iwi ties. There must be no major disparity between what an individual may expect to receive through a pan-tribal mechanism, such as the Putea, compared with what Maori close to their iwi might expect to receive. He recognised that there was, however, no obligation that every individual or every iwi be treated exactly the same.
Safeguards are needed not just for those who cannot affiliate because tracing is impossible or not practical because, for example, of socio-economic status, but also for those who will not affiliate for religious reasons or because their hapu is in dispute with the iwi to which they have been allocated. It must, in his submission, also cater for those for whom it is impractical to access the benefits of the settlement through their iwi because of distance or other difficulties in the way of meaningful participation in iwi affairs. Many of those who have lost touch with their iwi have done so, in any event, because of Treaty breaches. A major reason for the urban drift was the depletion of iwi resources. Those who have to access the Putea will not be confined to descent groups of particular iwi. Rather, they will be the lost children of all iwi.
In the 2001 census, 32.6% of persons who answered the iwi affiliation question did not know their iwi, or only stated a general geographical region or merely gave a canoe name. Mr. Millard pointed out that the number of "don’t knows" has remained relatively constant over the last three censuses, despite measures such as the Commission’s "Iwi Helpline". This means that a large proportion of the Maori population will need to rely on the Putea to receive benefits from the settlement. In his submission, no reasonable Commission could suppose that this huge number of "don’t knows" can be put in touch with their individual iwi in the foreseeable future.
Mr. Millard noted that the respondents were critical of the figures put forward on behalf of Mr. Thompson but pointed out that the Commission clearly did recognise in its report that there is a category of Maori at risk of not being able to access a wholly iwi based settlement. At no stage had the Commission attempted to quantify the magnitude of the problem.
Mr. Millard further noted that some 77% of the total settlement fund is allocated to iwi based on population figures (and these population figures are not even true population figures as those with multiple affiliations are counted more than once). The percentage of the fund that was distributed on a population basis would, in his submission, provide a starting point for deciding what might be fairly allocated to a Putea likely to cater for over 30% of Maori. He pointed out that the Commission itself in its report (at 275) sets out average income and capital figures for individual iwi members. The same, in his submission, should have been done for non-iwi affiliated Maori and an assessment of the overall fairness of the model made.
Mr. Millard also submitted that the measures put in place by the Commission to help put individuals in touch with their iwi, while worthy, are inadequate to deal with the problem. With regard to the iwi themselves, he noted that the affiliation figures for iwi are based on the 2001 census, even in relation to distributions that may occur in the future. This means there is no incentive for iwi to encourage more people to become affiliated. In addition, iwi are only required to include a small percentage of those affiliations on their register, sometimes as low as 10%. While the kaupapa are unobjectionable in themselves there is, in his submission, no effective sanction for non compliance. He also pointed out that the consultation process on the various Commission reports, while widely advertised, was also primarily with iwi.
Against that background, Mr. Millard submitted that the Putea is so inadequate that no reasonable Commission could consider that it enables all Maori (including those who are unable or unlikely to participate in the settlement benefits through their iwi) to be treated fairly. This inadequacy arises from the combination of the following factors that must be viewed in totality:
The limited size of the Putea;
The other demands on the Putea;
The lack of clear priority given to those who cannot or will not access benefits through their iwi;
The potentially limited duration of the Putea;
The iwi domination of the Putea.
It was submitted that an underlying factor contributing to the identified inadequacies is the perception of the Commission that the Putea only exists because iwi are doing a favour for non-affiliated Maori. However, as McGechan J recognised in the High Court, all Maori are entitled to the ultimate benefit of the settlement as of right. The Commission’s approach is, in Mr. Millard’s submission, best exemplified in the comments of Naida Glavish, who was one of only three existing Commissioners to give evidence and the only one to address the specific issues raised by Mr. Thompson. Mr. Millard pointed to the comment in her affidavit that:
It must be remembered that the Putea is inherited from iwi – it is an iwi property right in respect of fisheries. I have heard many iwi speak about their aroha for their kin who live in the city. That is one of the reasons why iwi agreed to set aside funds for Te Putea Whakatupu Trust. I recall that the preference of iwi around the country was that their kin go home but realistically, that is not possible or even probable. So, based on the aroha of the iwi to their kin in the city, iwi agreed that the Putea be set aside.
Mr. Millard submitted that this showed that the Putea had been treated as a matter of grace and favour, not as in fulfilment of a legal obligation to treat all Maori fairly, including those who, as a result of generations living away from their iwi, prefer to maintain existing pan-Maori associations rather than reconstructing old ties long since severed with what, in any event, is a modern day construct.
In relation to each specific point made above, Mr. Millard’s main contentions can be summarised as follows. With regard to the limited size of the Putea, it was pointed out that, in the initial five years, the funding is only "up to" $1m per annum, and that, even after capitalisation, the capital sum will be only $20m out of total existing assets held by the Commission of approximately $700m (not counting the future quota to be allocated to iwi). Mr. Millard submitted that there does not appear to have been any attempt to quantify either the numbers that would need to have recourse to the Putea or the capacity of the income on the $20m to service those needs. Indeed, if that had been done, the inadequacy would have been obvious. Only 2.8% of current assets are available to meet the needs of the 32% of Maori who do not know their iwi, or the (potentially up to) 70% of Maori who live away from their tribal rohe. Mr. Millard recognised that there is a power, but not an obligation, for TOKM to contribute more to the Putea. However, that is highly unlikely, at least in the initial years in Mr. Millard’s submission, as TOKM is obliged to provide an additional $10m top up the freshwater trust at a rate of $1m per annum. TOKM would also need to consult iwi on any proposal for increased funding and approval would be unlikely.
It was also submitted that there was no evidence to show that the size of the Putea was the result of delicate negotiations or the balancing of competing claims. In Mr. Millard’s submission, the Commission started with the original figures suggested by the UMA and Mr. Tamihere. These original proposals covered the PRESA allocation only. If those figures had been updated to include POSA, a Putea of between $70m and $80m should have resulted. The original Putea proposal by the Commission contemplated that the Putea would be funded with $10m cash plus shares assessed as having a value of about $3.7m. The PRESA assets then had a value of about $300m. Since then, the value of the assets to be allocated has increased to $700m but the value of the Putea has increased by only 46%. The emphasis should in any event, in his submission, have been on fairness, not compromise. Mr. Millard pointed out that the Putea is so small that even doubling its size would not materially have reduced the size of allocations to iwi.
Given its potentially limited life and the potentially different capital beneficiaries, Mr. Millard submitted that the Putea will need to follow a balanced portfolio approach with income return traded off in exchange for capital growth potential. The fee for managing such an investment strategy is likely to be in the range of 0.5% to 0.7% of capital. This is likely to give an income of less than $1m per annum before other administrative expenses, compared to estimated iwi income from the assets of $27.8m.
Moreover, it is proposed that, on the establishment of the Putea, the activities of the existing Te Ohu Kai Moana Charitable Trust established in 1994 will be taken over by the Putea. The Charitable Trust, which has been funding only iwi applicants, has (excluding the first year of operation when it was in set up mode) made average yearly distributions of about $927,000 in today’s dollars. Over the eight years it has only assisted approximately 1,898 persons or, if one, two or three day conferences are excluded, 1,619 persons. This is between 203 and 238 persons a year from a similar income to that anticipated for the Putea. There is also likely to be a "tail" of persons from the Charitable Trust in the first and second years of the Putea as those with existing scholarships complete their courses.
This problem relating to funding is, in Mr. Millard’s submission, heightened by the fact that iwi are free to apply to the Putea, in competition with urban Maori, even when they have become fully funded. The priority provision does not clearly give preference in urban Maori. It only applies where iwi are promoting or able to promote the various purposes of the Putea. He Kawai Amokura itself recognises that some iwi will lack the ability and resources to do this. In Mr. Millard’s submission, iwi access to the Putea is therefore more than a transitional issue.
The Putea is to be reviewed six years after its formation, and then in another six years, with subsequent reviews at 5-10 year intervals. This causes a further problem in Mr. Millard’s submission. Any of these reviews could result in the Putea being wound up. At that point its assets would be distributed to iwi controlled entities. Iwi, by contrast do not face termination of their entitlements, and are not subject to review.
The risk of the Putea being wound up is, in Mr. Millard’s submission, heightened by the role of iwi in the review process. Mandated iwi have input into the terms of reference, the review itself and the implementation of recommendations. The Commission has itself acknowledged that iwi are likely to act in a self-interested manner in this process. While clause 39 of the draft Bill states that the criterion for review is whether the Putea’s purposes could be better achieved through other means, those purposes are the impugned ones in clause 36 of the Commission’s draft Bill and there is no requirement that all Maori be treated fairly. Further, Mr. Millard points out that the trustees are required to obtain the approval of the iwi dominated TOKM to the annual plan and assistance policy of the Putea. TOKM, in turn, has to report to iwi, including on the key activities undertaken by the Putea. This again, in his submission, gives iwi unacceptable input into the Putea.
THE COMMISSION'S SUBMISSIONS
Mr. Carruthers QC, on behalf of the Commission, submitted that this is not a "hard look" case. It is a case about compromise and pragmatism. He also submitted that it is not a case of individual rights. Any rights individuals had were exercisable only by reference to membership of a hapu and the rights could not be transferred as an individual. The Commission is also, in his submission, a specialist body and due deference should be paid to its deliberations. In fulfilling its statutory obligations, the Commission has had to consider not just the interest of non-affiliated Maori and affiliated Maori but also coastal iwi, inland iwi, populous iwi, less populous iwi, proponents of a coastline based allocation, proponents of a population based allocation, those who support allocation and those who support retention and so on. Mr. Thompson’s case as to non-affiliated Maori cannot be viewed in isolation from the wider context of allocation.
Mr. Carruthers submitted further that there is a very broad concept of benefit in the statutory scheme and the scope of discretion by the Commission is wide. The phrase "ultimately for the benefit of all Maori" is not, in his submission, a concept of individuality. Equally fairness, in the context of the Deed, is not a totally objective concept. What fairness requires is a compromise and balance between differing groups.
With regard to what the concept of fairness and ultimate benefit required, the Commission relied on the Privy Council iwi decision which, it was submitted, reflects the appropriate approach. Mr. Carruthers pointed to the Privy Council’s comment (at para  of its decision) that the requirement that the settlement must ultimately be for the benefit of all Maori does not necessarily mean that there must be an immediate and demonstrable benefit for each individual Maori and that:
there must be many ways in which the encouragement of an economic enterprise among Maori can be said to be for the ultimate benefit of the Maori people, even though not all are able to participate in the enterprise itself or even share directly in its profits.
He submitted that the Commission had been required to, and did, consider the fairness of the allocation. The way that whanau and hapu could participate in the settlement was clearly considered and the requirement that iwi organisations be accountable to members, wherever they live, introduced. This is a matter of obligation. The kaupapa also provide mechanisms through which members can participate in iwi matters, whether individually or through marae or hapu interests. It was submitted that the kaupapa, taken together, provide both accountability and a requirement on iwi to add members and ensure that they can fully participate in iwi affairs.
The Commission submitted that it had undertaken a suite of mechanisms designed carefully and deliberately to strike the balance between the obligation to allocate assets to iwi and the recognition that the settlement is ultimately for the benefit of all Maori. It was submitted that Mr. Thompson overstated evidence relating to the numbers of Maori who do not know their iwi and it was strongly disputed that iwi are incapable of adequately delivering the benefits of the settlement to their members. It was also submitted that the mechanisms that the Commission has put in place to assist Maori to reconnect with their iwi have been unjustly criticised. It is accepted by the Commission that it may not be possible to reconnect every Maori individual to their iwi or to keep iwi registers absolutely up to date, but the proposals that the Commission has put in place will go some way to alleviating these problems.
Mr. Carruthers, on behalf of the Commission, did not accept that the level of funding for the Putea had not been assessed by the Commission in a proper manner. This had plainly been done in a process that began in 1997.
The Commission’s fundamental task had been to decide how to allocate quota and the extent to which that should take place on a coastline or population basis. This took a huge amount of work, including computer modelling. The Putea was necessarily a subsidiary issue but, in his submission, it was not treated in a cursory way. It was described as the most controversial part of the model and went through a full process of consultation from inception. This involved wide consultation, not just with iwi but with all Maori, through major hui all around the country, including in urban areas where those most at a disadvantage in fact live.
As the Putea proposal was the subject of much consultation and debate, McGechan J was correct when he said that the funding level was set as a result of delicate compromise. It could not be unreasonable, in the context of court decisions that required allocation to iwi, for the Commission to consider that it was necessary to get iwi agreement to setting up the Putea. It was also, in Mr. Carruthers’ submission, not unreasonable for the Commission to have considered the wishes of UMA in this process. UMA were, purportedly at least, speaking for urban Maori. This is particularly the case as it would have been notoriously difficult to consult directly, for the same reasons that there are concerns that the most disadvantaged will not be able to access the settlement through iwi mechanisms.
In terms of the PRESA allocation, it was submitted that, in any event, the Commission, at the stage of writing the December 1998 report, needed iwi agreement because allocation without legislation was being contemplated and Resolution 2 of Schedule 1A to the Maori Fisheries Act required iwi agreement. In addition, the Putea endowment comes from PRESA cash, an asset to which iwi are entitled. It was submitted that iwi have in effect compromised their rights to receive an immediate allocation of that PRESA cash so it could fund the Putea. In the Commission’s view, it is not appropriate to set aside any greater amount without the consent of iwi.
It was also submitted that the Commission was well aware of the potential beneficiaries of the Putea. The 2001 census was taken into account by the Commission and there had also been extensive evidence on the topic during the iwi litigation. However, Mr. Carruthers also submitted that, even if one looks at the statistical information, there is still uncertainty as to need. It is, for example, uncertain at this stage how the measures to put people in touch with their iwi will in fact operate.
The Commission also submitted that the relevant provisions as to priority will facilitate preference for non-affiliated Maori. It submitted that the issue of iwi without capacity to service their members will, if at all, be a phenomenon of the transitional period only and that, in any event, the income from the 20% income shares in AFL that are retained by the Commission will create a significant fund. That makes review of the Putea funding a real practical alternative for the Commission.
The Commission accepted that the Putea may have a limited life because there may be a time when other mechanisms, including perhaps iwi established mechanisms or other funding systems, are able to perform the functions of the Putea. It was submitted that none of the reviews would enable the Putea to be wound up in an inappropriate way because the review is expressly tied to consideration of the purposes of the Putea, which was to receive and manage assets under the Deed. As the Deed requires the settlement to be for the ultimate benefit of all Maori, the trustee would be in breach if the review did not take this into account. In the draft Bill before Parliament this is, in his submission, made even clearer in clause 92(b)(i) which requires the regular reviews to be in accordance with the Deed.
Finally, it was submitted that the settlement and the Putea are not, and can never hope to be, a panacea for all the actual or perceived problems faced by urban Maori. The Putea is not a social welfare fund.
THE CROWN'S SUBMISSIONS
Ms Hardy, for the Crown, submitted that the Commission’s task required it to balance and compromise competing claims on the resources it held. The Court should be reluctant to disturb the Putea model and a high degree of deference should be shown to the Commission’s decisions. The Commission was established by Parliament as the specialist body tasked with formulating the allocation of settlement assets. These are not matters that a Court is well equipped to scrutinise. In Ms Hardy’s submission, the decision before the Commission was one involving broad questions of policy. It required the balancing of competing cultural and economic views and the brokering of consensus. It did not involve interference with fundamental human or individual rights. She also submitted that, while there is an additional statutory requirement of fairness for POSA, that does not apply to PRESA.
In the Crown’s submission, the Commission has a broad discretion as to how to deal with the ultimate benefit question. Ms Hardy submitted that the Privy Council’s finding that economic enterprise among Maori can be said to be for "the ultimate benefit of the Maori people" is cogent and consistent with the Deed. It provides a way of reconciling allocation to iwi with the concept of ultimate benefit.
There is, in her submission, no legal obligation for there to be pan-tribal protective mechanisms and certainly no legal obligation to ensure the same per capita allocation to urban Maori through the Putea as there is to iwi Maori through their iwi. The sums accorded under the settlement to some iwi are already very modest for the achievement of the complex tasks expected of them. Further, it cannot, in her submission, be unreasonable to expect Maori to benefit from the settlement via their iwi. To try to convert the inquiry into a population based inquiry is, in her submission, to try to relitigate the iwi issue that has already been determined by the courts.
This Court has already, in her submission, rejected the argument that an individual Maori must be accorded the right to participate in settlement benefits through the organisation of that person’s choice. Implicit in that finding is that it cannot be unreasonable to expect urban Maori who know their iwi to benefit from the settlement via their iwi, provided that the iwi structures allow for this to reasonably occur. The Crown acknowledged that there may be difficulties for some iwi members around participation in iwi affairs but submitted that such difficulties are inherent in any democratically based institution. The iwi structures must give all members, regardless of their locality, a right to vote. There is also accountability through reporting mechanisms. There is thus, in the Crown’s submission, a proper opportunity to participate in iwi affairs. Ms Hardy also pointed to the requirement for iwi to reach out to their members. The Court cannot assume that iwi will act in breach of these requirements. In the same way, it cannot be assumed that fishing businesses developed by iwi will not provide opportunities for Maori living outside the rohe.
The Crown also did not accept Mr. Thompson’s argument that one third of Maori can access benefits only through the Putea. The evidence of Mr. Douglas relied upon for these figures was derived from the 2001 census. However, the 5.4% of respondents who declined to state their iwi (who were included in Mr. Douglas’ figures) cannot be assumed not to know their iwi (especially given that there was a "don’t know" category). Similarly, not all of those who did not know their iwi necessarily chose to identify as Maori or wished to identify with an iwi. Finally, it does not follow that a person who does not currently know their iwi will be unable to identify it with help from sources such as the Helpline. In particular, those who know a canoe name but not a specific iwi, would likely to be able, with help, to identify their iwi. The Crown’s estimate is that between 10-20% of respondents to the iwi affiliation question in the census could not identify their specific iwi and that this figure will reduce once the measures to help Maori identify iwi have been operational for some time.
Ms Hardy submitted that these figures are more consistent with other evidence before the Court. In a survey carried out by BRC Marketing and Research Ltd concerning the Maori Registration Service, 86% of those surveyed claimed to know their iwi. Significantly, of the 14% who did not know their iwi only 32% considered that there would be advantages to them personally in finding out their iwi. Ms Hardy further submitted that it is apparent that the Commission had an abundance of evidence as to the extent of the problem which had, in any event, been well aired in the litigation over the last ten or so years.
In relation to the more specific points made by Mr. Thompson, it was submitted that it was not unreasonable to provide for the Putea to be reviewed after the six year point, with a termination option. As McGechan J pointed out in the High Court, any premature or unjustified termination would give rise to serious political consequences, but it was still understandable that a new concept like the Putea might not work, and therefore providing for the possibility of termination at that point made sense. In any event, the Putea was a trust and any decision to wind up could only be made with the objects of the trust in mind. She also submitted that, in the context of a requirement for allocation to iwi, it was also vital that iwi support for the Putea was obtained.
We begin with an analysis of the legislative framework, as that framework obviously sets the parameters of the Commission’s task. We deal first with PRESA. The iwi cases in the High Court, this Court and the Privy Council held that allocation of PRESA can be made only to iwi and that, in context, iwi means traditional Maori tribes. The cases also make it clear that the Commission cannot allocate unless it is satisfied that the allocation is for the ultimate benefit of all Maori, although all of these comments were obiter as the cases were concerned only with answering the two questions posed.
The Privy Council (in the Privy Council iwi decision, at 28, para 19) spoke of the Commission’s "over-riding duty and accountability to the Maori people" and the necessity for any scheme to satisfy the Commission’s trust obligations to the Maori people. The majority of this Court said (in the Court of Appeal iwi decision, at 373, para ) that the obvious intention of Parliament in relation both to PRESA and POSA was to have the twin requirements of allocation to iwi and ultimate benefit harmonised. Any allocation to iwi, therefore, had to be on the condition that iwi have put in place structures, both tribal and pan-tribal, which will ultimately enable delivery of benefits to all Maori. Paterson J (in the High Court iwi decision at 323) said that any allocation scheme had to give all beneficiaries of the pan-Maori settlement access to the benefits of that settlement and also that it would need to provide adequately for those who do not have close iwi ties. The Privy Council, however, may have had a different view from the High Court and this Court on what the phrase "ultimately for the benefit of all Maori" meant and the extent of the trust obligation. We discuss this later.
Any allocation scheme for PRESA must, in terms of resolution 2 of the hui-a-tau of 25 July 1992 attached as Schedule 1A of the Maori Fisheries Act, have the agreement of iwi (to the extent possible). Mr. Millard also submitted that any allocation has to be fair. This is because of the express references to fairness in the Deed, most in relation to POSA, but applicable in his submission to PRESA as well, given the reference to the Maori Fisheries Act in clause 5.6 of the Deed. Ms Hardy, on the other hand, submitted that the references to fairness in the Deed applied only to POSA. McGechan J, in his decision in this case, held that the fairness requirement applied to PRESA for a number of reasons (see paras - of his decision, discussed at para  above). We agree with his reasoning, although we consider that any Treaty of Waitangi principles are, at least in this case, imported into the legislation through the Deed and the express reference to the Treaty in the long title of the Maori Fisheries Act, rather than through any general principle of interpretation.
With regard to POSA, the Commission has no direct allocation power but is required, under s6(e)(ii) of the Maori Fisheries Act (set out at para  above) to develop proposals for a new Maori Fisheries Act that is consistent with the Deed and which, under s6(e)(ii)(B), identifies a procedure for identifying the beneficiaries and their interests under the Deed, in accordance with the Treaty of Waitangi, and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed.
There are a number of significant points. The first is that the scheme for POSA must be consistent with the Deed and thus the Deed is effectively imported into the legislation. The second is that the Treaty is explicitly set as a consideration that must be taken into account. Thirdly, in relation to POSA, it is the benefits of the Deed that are to be allocated, whereas for PRESA there is to be a distribution of the assets.
With regard to the identification of beneficiaries, the majority of this Court (in the Court of Appeal iwi decision at 370-371, paras -, quoted at para  above) commented that an examination of the Deed and its antecedents led them to the view that the transaction was between tribal Maori and the Crown for the benefit of all Maori. The Deed, therefore, in their view, contemplated only an allocation to iwi both in relation to PRESA and POSA but with the requirement, as indicated above, that iwi have in place mechanisms to ensure that the settlement is for the ultimate benefit of all Maori. We agree.
The reference in s6(e)(ii)(B) to the beneficiaries of the settlement must therefore be a reference to iwi. There is, however, still the requirement, as set out in clause 4.5.1 of the Deed that the settlement be "ultimately for the benefit of all Maori" and para (iii) of Annexure A to the Deed (reproduced in Appendix 1 to this judgment) makes it clear that any allocation scheme needs to address how individual, whanau and hapu interests can be accommodated within iwi structures. That paragraph also makes it explicit that any distribution system should aim to achieve a fair allocation of the benefits among Maori. It also speaks of ensuring that a distribution system addresses the criteria to be applied in identifying iwi and determining if that iwi has a fishing interest. This theme is continued in para (iv), which requires the distribution scheme to address the criteria to be applied to determine the different levels of interests among iwi in inshore quota, deep water quota and the benefits derived from the fishing company. It is clear, therefore, that the Deed contemplated possible inequality of distribution even among iwi.
Unlike for PRESA, presumably because any allocation was to be done legislatively, there is no requirement for iwi agreement with regard to any scheme for POSA. There is, however, a requirement, in s6(e)(ii), to consult with Maori (and not just with iwi).
Not to be lost sight of in all of this is the nature of the statutory power which is under challenge. The challenge is to the exercise by the Commission of its power under s6(e)(iv) to report to the Minister "on the matters referred to in" in s6(e)(i), (ii) and (iii). It is implicit in the legislative framework to which we have referred that, where such a report recommends a scheme for allocation and distribution, that scheme must seek to produce outcomes which, in relation to PRESA, are consistent with the resolutions of the hui-a-tau of 25 July 1992 and, in relation to POSA, are consistent with the Deed of Settlement. The Deed is also relevant to PRESA through s3 of the Settlement Act and the reference to the Deed at the beginning of s6(e) of the Maori Fisheries Act. Given what we will refer to later as the aspirational nature of the Deed, there is scope for some flexibility in what is acceptable for these purposes.
On the other hand, if, having allowed for that flexibility, we are of the view that the scheme is not consistent with the Deed we should say so, and if appropriate, formalise that with a declaration accordingly. In this respect, the key issue is not whether the Commission reasonably thinks its scheme is consistent with the Deed but rather whether the scheme is consistent with the Deed. For this reason the debate whether hard look or deferential approaches are correct is beside the point on the question whether the scheme is consistent with the Deed, although it may arise with the closely related question as to the reasonableness of the scheme.
Meaning of "ultimately for the benefit of all Maori"
We now return to the question of the meaning of the phrase "ultimately for the benefit of all Maori" in clause 4.5.1 of the Deed (reproduced in Appendix 1 to this judgment) and the related trust requirement on the Commission in clause 4.5.7. All are agreed that these requirements apply to both PRESA and POSA but the Commission and the Crown rely heavily on the obiter comments of the Privy Council as to their meaning.
As set out at para  above, their Lordships (in the Privy Council iwi decision at 28, para ) said that the concept of benefit was a broad one that did not seem to require any immediate and demonstrable advantage for each member of the Maori people. They also commented that there must be ways in which the encouragement of an economic enterprise among Maori can be said to be for the ultimate benefit of the Maori people, even if all were not able to participate or directly share in the profits.
Clause 4.5.1 is an acknowledgement by the Crown and Maori (given by their representatives who signed the Deed) that the settlement is "ultimately for the benefit of all Maori". That subclause is specifically addressed neither to distribution of, nor beneficial interests in, the proceeds of settlement. On the other hand, clause 4.5.7 is an acknowledgement that the Commission holds those proceeds "on behalf of Maori". In all of this we see an aspirational element. The scheme of the Deed and associated legislation and the quantum of the settlement necessarily mean that not every single Maori will benefit tangibly and directly from the settlement and it cannot sensibly be an objection to a scheme produced by the Commission that identifiable and direct benefit is not conferred on all those of Maori descent. But the aspiration is still important. We see it as incumbent on the Commission to come up with a scheme which seeks to give real effect to this aspiration.
It is not necessary that there be an immediate benefit to each and every individual Maori. This follows, if nothing else, from the use of the word "ultimately". We also agree that the trust concept is a broad concept. It certainly does not import a notion of equality of distribution. We also agree that it is not necessary that each and every Maori participate in all enterprises funded by the settlement. We do, however, consider that a scheme prepared by the Commission must be designed so that it does not exclude from the possibility of benefit those who are both of Maori descent and who identify as Maori. If their Lordships meant to suggest that this may not be the case, then we would respectfully differ from them.
Their Lordships seem to have read the reference in clause 4.5.1 of the Deed to "all Maori" and in clause 4.5.7 of the Deed the phrase "on behalf of Maori" to be a reference to the "Maori people". While this has a faintly Victorian ring, it is a possible interpretation of clause 4.5.7, but we do not consider that this applies to clause 4.5.1. The phrase "all Maori" in our view means what it says and is a reference to all individuals who are Maori by descent. This is especially the case as, by virtue of the Deed and s9 of the Settlement Act, all commercial fishing claims were extinguished. Individuals may not have had fishing rights as individuals but they enjoyed such rights as member of a hapu or whanau or (to a lesser extent) iwi. This does not make those rights any less important.
As discussed at para  above, Paterson J, in the High Court iwi decision, considered that all individuals who had their claims to fishing rights extinguished, even if held as members of a communal group, should have the opportunity to participate in the settlement. The majority of this Court in the Court of Appeal iwi decision (at 376, para  as quoted at para  above) considered that it should be a condition of allocation to iwi that iwi use their very best endeavours to deliver benefit to all who are entitled to call themselves Maori. They recognised, however, at para  (also quoted at para  above), that it may be impossible to remove completely the risk that some Maori will not receive benefits, whatever allocation model is adopted.
McGechan J, in his decision on this case, took a similar approach when he said that urban Maori are entitled to the ultimate benefit of the settlement assets as part of all Maori and that this is a matter of rights and not aroha – see para  of his decision quoted at para  above. We also refer to his discussion on the Privy Council iwi decision (at para  of his decision quoted at para  above) where he said that even the fact that the Deed employs a very broad concept of benefit, does not obviate the obligation on the part of the Commission to see that iwi observe the duty of ensuring that the settlement is both fair and of ultimate benefit to all Maori. The right to allocation, in his view, comes with that baggage.
We consider that he correctly stated the position. An allocation model cannot be seen as being ultimately for the benefit of all Maori, or indeed fair, if there are a group of Maori who identify as Maori but who will not at any stage be able to access the settlement. Although there is disagreement on the possible numbers, it appears clear that there will be some Maori who will not be able to find their iwi and thus that a purely iwi allocation model, without some provision for such persons, would fail that test. It has to be remembered that these Maori do have iwi affiliations. It is just that they are not able to identify them. Indeed, as Mr. Millard says, that they cannot identify their iwi may in itself result from Treaty breaches. To exclude from the settlement those who arguably have been the most disadvantaged from past Treaty breaches cannot have been the intent of the legislation, or indeed of the Crown and Maori negotiators. As this Court has recognised, making provision for those who do not and cannot have iwi affiliations, whether through tribal or pan-tribal mechanisms, is a requirement of the settlement.
There is a related question. Ms Hardy, on behalf of the Crown, submitted that all Maori who can identify their iwi should be required to access settlement benefits through their iwi. She relied on a comment by the majority of this Court (in the Court of Appeal iwi decision at 375, para , quoted at para  above) to the effect that there was no requirement to give an individual Maori the right to participate in benefits through the organisation of that person’s choice.
In our view, there is a difference between catering for those who might have a preference to access benefits through an organisation other than their iwi, which is what this Court was dealing with when it made those remarks, and forcing Maori to access benefits through their iwi when they have legitimate reasons for not doing so, particularly where such reasons are grounded in their Maori heritage. Legitimate reasons could include religious reasons, like Mr. Thompson’s, or that a person’s hapu is in dispute with its allocated iwi because it claims iwi status in its own right. It may also be necessary for a scheme to cater, through a pan-tribal mechanism, for those who, despite the best efforts of iwi, just cannot access benefits through their iwi. McGechan J obviously thought that, in the real world, there would be such persons – see his remarks at para  of his judgment, quoted at para  above.
We accept, therefore, Mr. Millard’s submission that it may be necessary for the settlement to accommodate all those categories of persons he identified in his submissions – see discussion at para (c) above.
Having said all this, we reiterate that the fact that the settlement has to be ultimately for the benefit of all Maori does not imply equality of benefit for all. This is a settlement related to traditional fishing rights and the historical grievances of a tribal people. This would entitle the Commission, for example, to consider, as it did, that quota, as the modern day equivalent of fishing rights, should hold a special place in the allocation scheme and that it should be allocated wholly to iwi and not to any pan-tribal mechanism – see the discussion at 62, para E4 of He Kawai Amokura, quoted at para  above. Mr. Thompson now accepts that this is a legitimate viewpoint. We remark at this point that, if the quota is taken out of the equation, the $20m funding for the Putea is some 5% of available assets and not 2.8%.
We also consider that, in a settlement of this kind, it is important that the implementation of the settlement accords with Maori traditional values. It is important, therefore, that any pan-tribal mechanism for the delivery of benefits does not cut across the ability of iwi to reach and provide benefit to their members. We note that the majority of this Court made similar comments (in the Court of Appeal iwi decision at para , quoted at para  above). This had obviously been a matter of some concern to iwi, as discussed at para  above.
Standard of review
The next question is the standard of review that should be applied in this case. We accept Mr. Millard’s submission that this case deals with rights. In this context, the rights involved are collective rights but this cannot render such rights less worthy of protection. Indeed, in this context such rights must be seen as of paramount importance and, in particular, those of whanau and hapu as that is where fishing rights were traditionally held – see the High Court iwi decision at 310, discussed at para  above.
Logically, the first question is whether the scheme is consistent with the Deed. As already indicated, we see this as an issue upon which we must give effect to our own opinion. But closely related to this question (and almost inextricably linked with it) is the reasonableness of the scheme, an issue which, in the first instance, is plainly for the Commission with the Courts having only a review function. This must be judged in light of the fact that rights are involved but also giving due allowance to the statutory scheme.
The body entrusted with the task of allocating assets, in the case of PRESA, and recommending allocation of benefits, in the case of POSA, is a specialist Commission. The legislative scheme requires that Commission to have, as far as possible, iwi agreement with regard to PRESA allocation and that there be consultation with regard to POSA. There have always been a variety of views held by different groups in relation to the optimum allocation model and it must have been envisaged that part of the Commission’s task would be to try and reconcile opposing views in accordance with Maori values – see paras - above for a discussion of the Commission’s analysis of those opposing views. For both PRESA and POSA, allocation must be to iwi but with a requirement that the settlement be ultimately for the benefit of all Maori and fair. As indicated above, however, the settlement did not necessarily contemplate equality of treatment between each and every Maori, or even between each and every iwi. Weighing of differing claims was clearly envisaged. All this was to be achieved in the context of a settlement that was of traditional grievances related to fishing and with the overlay of the Treaty.
We have described in some detail (at paras - above) the allocation proposals of the Commission and the philosophy behind them. This discussion, in our view, highlights the magnitude of the task that faced the Commission and the complexity of the considerations it was required to take into account. It is clear that the Commission has had in mind the various legal constraints within which it was working. It is also clear that the Commission has endeavoured to ensure that there is a coherent theoretical underpinning to its recommendations and to set that out clearly. The Commission obviously saw its task as one of finding compromise between the various views and claims but also had in mind the necessity for fairness and for the settlement to be ultimately for the benefit of all Maori. We can see no error in its articulation of its overall approach. We also reiterate at this point, however, that, because of the need to reconcile sometimes conflicting objectives and considerations, there will have been a range of solutions that would have accorded with the Deed and the legislation.
Measures to deliver ultimate benefit
The Commission came to the view that any settlement would not be for the ultimately for the benefit of all Maori or fair unless it catered in some manner for those who are not able or do not wish, for legitimate reasons, to access benefits through their iwi. In this regard, for the reasons outlined above, the Commission was clearly correct.
The Commission has put forward a number of measures designed to deal with this issue.
First, and in the context of an iwi based settlement rightly foremost, are the measures, described at paras  –  above, to ensure that iwi have both the means and the requirement to engage all their members (including those distant from the tribal rohe) in iwi affairs and to deliver the benefits of the settlement to them. These measures are designed to reduce the numbers of those who would not be able to access the benefit of the settlement through their iwi.
Secondly, there is the retention of central management of the AFL voting shares, designed so that AFL can be managed in the most effective manner for present and future generations. There is also retention of 20% of the income shares, which provides the possibility of further funds for those who cannot access benefits through their iwi. Finally, there is the Putea.
Funding and structure of the Putea
As discussed above, at paras -, the Putea proposal arose because of the UMA litigation. The current proposal (apart from quantum) is essentially the same proposal as was set out in the Commission’s 1998 report. This was retained, despite the court decisions that required allocation of PRESA to iwi, although the Commission considered that these decisions confirmed the necessity for iwi control of the Putea and for iwi to be the ultimate beneficiaries of the Putea assets.
The decision to persist with the Putea is understandable as it had been decided that it would not be appropriate to require iwi to be responsible for distributing benefits to other than iwi members – see the discussion at paras ,  and  above. McGechan J considered such a decision unsurprising and pointed to the obvious difficulties there would be in a regime that made iwi responsible for other than members – see para  of his judgment, quoted at para  above. We agree. Indeed, Mr. Thompson supports the Putea structure in principle.
As to the funding of the Putea, it is clear that the figure of $10m was chosen in 1998 as a compromise between the $20m figure that had been put forward by Mr. Tamihere and the other figures suggested in the various consultation hui. We ignore the shareholding in Moana Pacific, which was also part of the proposal, as that was held by the Crown and not the Commission. It is also clear that there was concern that any larger figure would not get iwi agreement, an understandable concern given the legislative requirement for such agreement to be achieved for PRESA. At the same time, there were concerns that any larger cash figure would have to be taken from allocations to iwi and that this was likely to compromise the ability of iwi to use those cash assets to meet the needs of their members directly.
The figure of $20m first appeared in He Anga Mua. We were not pointed to any evidence as to why the figure had doubled but it may perhaps have been because the allocation model now included both PRESA and POSA. As the asset value had effectively doubled, it was likely thought appropriate to double the Putea funding. The Commission does not appear, however, to have considered the different legislative provisions for POSA, and, in particular, the absence of a legislative requirement for iwi agreement, when fixing on this figure.
The merits of the Putea proposal
We start with the question of funding. As indicated above, the original figure of $10m was essentially a compromise between the revised UMA suggestion (discussed at para  above) and iwi suggestions, and this figure was carried through into the final funding figure of $20m. One consideration in setting the level of the fund appears to have been a desire to set it at a level that was meaningful but which iwi would accept as being fair. A parallel and related concern was to ensure that the figure set did not compromise the ability of iwi to set up measures to get in touch with and provide for their members, wherever they lived.
The Commission was faced with a situation where there were many competing claims on a fund that was not sufficient to satisfy all such claims. It was faced with differing philosophies and priorities. It cannot be seen as unreasonable in such circumstances for the Commission to have seen itself as being required to attempt to find a fair compromise between the varying points of view.
It was also not unreasonable for the Commission to treat UMA as the representative of the very group that the Putea was designed to cover. One of the reasons put forward for the establishment of the Putea was that there is a group who, because of economic or other social factors, will have difficulty in accessing benefits through their iwi. These same factors would make direct consultation difficult, although we note that the Commission made considerable efforts to consult as widely as it could.
The UMA also represent urban Maori who do know their iwi and who therefore could access benefits through those iwi. In such circumstances, it was not unreasonable for the Commission to take the view that those who know their iwi should normally be required to access benefits through their iwi and thus consider that they could take a lower figure for the Putea than that suggested by UMA. Encouraging Maori to access benefits through iwi was clearly a legitimate policy choice in the context of a scheme that requires allocation to iwi.
As we have already indicated, the Commission was also right to be concerned to ensure that any pan-tribal mechanism did not cut across the relationship of iwi to their members and the ability of iwi to deliver the settlement benefits to their members. We note that, even now, some iwi have had to have their allocations topped up to $1m, the minimum the Commission thinks adequate for iwi to be able to undertake the tasks now required of them. In a settlement of this kind, it is legitimate for the Commission to take into account the necessity for the settlement to reflect traditional values. Especially in the context of a requirement for allocation to iwi, the Commission cannot be criticised if it skewed the funding towards iwi so that iwi structures can be revitalised.
We also consider that, in a scheme that requires allocation to iwi and, in relation to PRESA at least, requires agreement of iwi, the concern to secure iwi agreement must be seen as legitimate for POSA as well. This was to be an allocation model worked through with iwi as well as with the wider Maori community by specialist Commissioners. It was an allocation model that was to be by and for Maori.
The Commission also quite properly recognised that it was required to stand back and consider if the allocation proposal it put forward was fair. This process cannot be seen as divorced from the consultation process. The Commission was entitled to and did consider that the level of agreement reached was evidence that this requirement was met – see discussion at para  above. However, the Commission still had to distance itself and look to the interests of all Maori as opposed to Maori affiliated with an iwi. In undertaking the task of standing back and assessing whether the overall allocation was fair, we were not pointed to any evidence that the Commission members had explicitly turned their minds to the possible numbers of those who would not be able to access benefits through their iwi.
It is true that there was some analysis of the 2001 census figures and that the position of those who allegedly could not access benefit through their iwi had been well aired throughout the "iwi" litigation. Nevertheless, we were not pointed to any evidence that this was explicitly taken into account in setting the Putea funding. As there appears to have been no analysis of the numbers that may need to access the Putea, there is also no analysis of whether the level of funding would be sufficient to fulfil their needs. Nor is there any comparison made between the per capita iwi benefits (as set out at 274-275 of He Kawai Amokura) and the per capita benefits that may be provided through the Putea. Neither were we pointed to any analysis tracing the effect of differing funding levels for the Putea on iwi allocations, to test the proposition that a greater allocation (say $40m) to the Putea would have had an unacceptable effect on the ability of iwi to provide for their members.
All this appeared to us at first blush to be surprising. To be fair to the Commission, however, the case was not pleaded and does not appear to have been argued, up until the argument before us, on the basis that the Commission had ignored relevant considerations in coming to its overall assessment. It is conceivable that, if this had been the clear focus of the pleadings and the argument in the High Court, further evidence would have been put forward on behalf of the Commission that may have alleviated these concerns to some extent. We note, for example, that in the Commission’s July 1997 Report, Proposed Optimum Method for Allocation Consultation Document at 36 the Commission said:
The actual numbers of people who do not know their tribal affiliations is relatively small. In the 1996 census, 19.4% of all people of Maori descent did not list their Iwi affiliation (just over 143,000 people). However, just less than half of these non-affiliated people of Maori descent chose not to identify ethnically as Maori and, presumably therefore, do not see themselves as beneficiaries of the settlement. The Commission considers that, with some help, many of the people who did identify as Maori would be able to trace their whakapapa.
It is clear that the numbers that are likely in the long term to require access to the Putea are uncertain. Mr. Thompson suggests that the figures at present may reach as high as one third of Maori. The Crown puts forward a figure of 10-20% and suggests that in future that figure may be lower. The Commission, at least in its 1999 report, discussed at para  above, considered that the need for the Putea could disappear if the measures to put members in touch with their iwi succeeded (although it did not put the matter so high, either before us or in He Kawai Amokura). We are inclined to agree with McGechan J’s comments at para  of his judgment, quoted at para  above, that there are overstatements on both sides.
We do, however, accept that there are major uncertainties as to these numbers and that the Commission would not have been in a position to come to any definitive view on the matter. We also accept that, in assessing the likely success of measures to get members in touch with and involved in their iwi, past successes or failures are not necessarily a reliable guide. As was noted by Paterson J (in the High Court iwi decision discussed at para  above), many iwi have not had the means up to now even to provide benefits to those in their rohe. There was also evidence before Paterson J, however, to suggest that the Tainui and Ngai Tahu land settlements had contributed to an increase in membership of those iwi and a corresponding ability to deliver the benefit of those settlements to members. In addition, the possibilities of iwi liasing with UMA, as alluded to in the Commission’s report (at 40, para C108, discussed at para  above), have not been fully explored. We also note that, under clause 9(3)(c)(i) of the Commission’s draft bill, the constitutional documents of a mandated iwi organisation must permit the organisation to benefit Maori other than members of the iwi. It may be that iwi will consider it appropriate to use such powers to benefit those who have connections with the iwi but are not entitled (for some iwi) to be members, such as adoptees.
The question of whether the allocation to the Putea is unreasonable must also be assessed against the background that there is no obligation on the Commission to provide equality of funding for all individuals and certainly no obligation for the benefit from the settlement to be delivered immediately to all Maori individuals. There is not even any obligation for equality of funding for iwi. As long as some meaningful amount is reserved for those who cannot access benefits through their iwi, it would be possible for a reasonable Commission to consider that the allocation model was fair and for the ultimate benefit of all Maori.
Even taking all these factors into account, the $20m for the Putea has a minimalist and perhaps "iwi-centric" appearance. It appears to us that realistically the numbers that will need to rely on the Putea will not in the foreseeable future be less than 10%, which would have suggested an allocation of $40m if quota is not taken into account. It may have been possible, therefore, to argue that the $20m funding figure does not accord with the requirement that the settlement be for the ultimate benefit of all Maori or that it is unreasonable in the administrative law sense, had the measure stood alone.
This is by no means certain, however, as on top of all the factors discussed above, there would have been the evidential difficulties referred to by McGechan J at para  of his decision, quoted at para  above. As an example of the issues involved, we note that, of the cash held by the Commission, only $20,718,803 is available to be distributed to iwi on a population basis. The rest of the cash held is required for other purposes. To have funded the Putea with further cash, therefore, would have required there to be no cash allocation to iwi. This would seem unsatisfactory as the other assets such as quota and the AFL income shares are non-liquid. In addition, if the cash was not distributed to iwi, then, on the figures provided at 274-275 of He Kawai Amokura, the allocation of some iwi would have been reduced by some 5%, while for others the reduction would only have been in the order of 1.5%. Some iwi may have seen this as unfair and not in accordance with the model of allocation they subscribed to. Another possibility would have been for the reduction to have been pro-rated across iwi as a function of the total settlement assets they obtained. Iwi with small population figures may, however, have seen this as equally unfair, given that it is likely that the population for which the Putea will have to cater will in some measure be in proportion to iwi population figures. The special position of the Chatham Islands would also have needed consideration if this solution had been chosen.
The $20m allocation does not, however, stand alone. First, there are the measures to ensure that iwi reach out to their members. Mr. Millard submitted that these measures will be ineffective, given the lack of incentive for iwi to add to their registers and the lack of sanctions for failure to meet the criteria. The Commission stressed that the kaupapa are ongoing requirements and that there are sanctions as later allocations can be withheld until the requirements are met. We were not taken in detail in this regard either to the provisions of the draft Bill attached to the Commission report or to the Bill currently before the Select Committee but remark that such measures are extreme and thus unlikely to be imposed, except in exceptional circumstances. In any event, they will only be effective for so long as there are allocations to be made. In our view, further consideration needs to be given to the question of sanctions. Some further consideration may also need to be given to the question of how minority rights are dealt with. We also have some concerns as to the ability of iwi to change their constitutions, even with the safeguards provided in the draft bill, if that power can be interpreted as allowing them to delete altogether the requirements set out in kaupapa 1 to 8. Nevertheless, as submitted by the Crown and the Commission, we cannot operate on the assumption that iwi will not use their best endeavours to meet the kaupapa requirements, given that they are mandatory and ongoing.
There is also the possibility of future funding being provided to the Putea by TOKM. One of the reasons for the retention by the Commission of the 20% AFL income shares appears to have been that they would provide a reserve in case the $20m funding of the Putea proved insufficient in the light of further information becoming available on the numbers of those who have to benefit from the settlement through it. We accept Mr. Millard’s submission that there will be little capacity for TOKM in the near future to redress any imbalance in the Putea’s funding. This is because there will be limited funds available from the TOKM’s retained 20% of the AFL income shares, given administration costs and the 10 year commitment to fund Te Wai Maori Trust, the trust to assist freshwater fisheries. The fact that funding may not be available immediately does not matter, however, as the obligation is only to ensure ultimate and not immediate or even medium term benefit to all Maori.
A more important concern expressed by Mr. Millard is that iwi control of TOKM will likely inhibit the implementation of any proposal to top up the Putea funding. As one of the reasons put forward by the Commission in support of what is clearly a minimalist settlement is that there is the possibility of further funding should the settlement prove inadequate when further information on numbers is available, we consider that the Commission should have ensured that future funding was a realistic possibility. Giving an unfettered discretion to TOKM does not, in our view, achieve this. At the least, we consider that the Commission should have made sure that TOKM, at the time of making any decision as to the use or distribution of its funds (including any distribution of its retained 20% of AFL income shares), is required to consider the adequacy of the Putea funding in light of the requirement that the settlement be ultimately for the benefit of all Maori and to weigh that against other uses for the funds.
We acknowledge that the funds from the 20% AFL income shares may, even after the full funding of the Te Wai Maori Trust, have other demands upon them and that they may not be sufficient to service all Maori who cannot access benefits through their iwi. We do not, however, have enough information to assess this, even if it were appropriate for us to do so.
Mr. Thompson also raises a number of other concerns. With regard to the priority question, we agree that the Commission was entitled to see this largely as a transitional question. To the extent it is not, it must be assumed that the iwi in question have not been able to provide the benefits of the settlement to their members and thus that it is appropriate that they have recourse to the Putea. We accept that this may put more strain on the limited resources of the Putea, however.
We also consider that iwi control over the Putea is not unreasonable in light of the necessity that assets be allocated to iwi. It is a mechanism by which iwi can fulfil their obligation of ensuring that the settlement is ultimately for the benefit of all Maori. Any control must, however, be exercised for that purpose and that should, in our view, be made absolutely clear. The same applies to any possible wind-up of the Putea. We agree with Mr. Carruthers that it is sensible to have a review mechanism but we consider that the Commission should have made sure that any decision on the winding up of the Putea can only be taken if the trustee considers that the requirement that the settlement be ultimately for the benefit of all Maori has been satisfied or will remain satisfied (remembering of course, that the requirement is aspirational in nature – see paras  and  above). The Commission, rightly in our view, considered that the Putea was necessary to satisfy the requirement that the settlement is ultimately for the benefit of all Maori. The Putea should not be able to be wound up if that would leave that requirement unfulfilled. Merely referring to the Deed (which we understand only applies in any event to subsequent reviews rather than the initial review) is not sufficient, given that the Deed contains many provisions other than clause 4.5.1.
This concern applies particularly to the first review of the Putea. The first review is to take place only one year after full funding. Until then, the funding is only "up to" $1m per annum and the Putea in that period is to perform the functions of the Charitable Trust as well as providing for iwi pending full allocation. Should the Putea be wound up a year after full funding, without alternative arrangements having been made for those who cannot benefit through their iwi, then the settlement would have turned from being minimalist to negligible. This could not be seen as fulfilling the obligation that the settlement be ultimately for the benefit of all Maori as such a negligible settlement could not be deemed meaningful – see para  above.
McGechan J considered that the political consequences of any premature or unjustified move to wind up must form a very real control (see his comments at para  of his judgment quoted at para  above). We assume that he was referring to the wider political consequences as any adverse political reaction from iwi is unlikely. It is difficult, however, to see how wider political considerations provide a realistic constraint. There are no obvious sanctions with regard to the fisheries settlement that could be imposed or that would be appropriate if any wind up were in accordance with the draft Bill.
In conclusion, we consider that, had the matters we deal with in paras  and  above (which, in our view, reflect substantive and not merely drafting concerns) been incorporated, the Putea model, as recommended by the Commission, would have been in accordance with the statutory requirement that the settlement be ultimately for the benefit of all Maori. Equally, it would not have been unreasonable in the administrative law sense (whatever the appropriate standard of review).
This means that the appellant has been successful in his argument to the limited extent set out above. We are not, however, able to remand the matter to the Commission as the matter is now before Parliament. Neither do we consider, in the circumstances, that it is necessary to make any declarations.
RESULT AND COSTS
For the reasons given, the appeal is allowed to the extent set out above.
As all parties have had some measure of success in the appeal, our preliminary view is that costs should lie where they fall. Parties have leave, however, to file memoranda on costs on or before 4 pm, 9 July 2004.
In the last decade or so, the Parliament of New Zealand has occasionally resorted to a technique which has seen allocative powers of a significant economic character delegated to local authorities or other agencies. One striking example was the deregulation of the electricity industry. Another was the enterprise involved in this case: the allocation by the Treaty of Waitangi Fisheries Commission of a $770 million settlement relating to Maori fishing rights.
Unsurprisingly, instances in which a given authority or commission has to allocate, or recommend the allocation of, substantial economic benefits between various interests always attracts distinct controversy. And, in New Zealand this governance technique has attracted more than its fair share of litigation in the form of applications for judicial review designed to unhorse the decision actually taken or recommendations made by the decision-maker.
Significantly, these applications for judicial review have met with minimal success. In part this is because the existing standards of judicial review in New Zealand are very difficult for an applicant to surmount in this subject area, even assuming a court is persuaded that there is some room for concern as to the process followed, let alone the outcome of it.
In this instance, the (now single) plaintiff, Mr. Thompson, seeks to impugn the recommendations of the Treaty of Waitangi Fisheries Commission in relation to a prospective trust (putea) for non-iwi affiliated Maori. This trust is to be generated out of the proceeds of a substantial fisheries settlement for all Maori.
The events leading to this proceeding have been detailed by Glazebrook J and need not be further rehearsed by me. Unfortunately, I find myself unable to concur in the view of my colleagues that this appeal should be allowed. This appeal must perforce be dealt with expeditiously, and I will give short reasons, under two heads: the standard of review; and the application of that standard to this case.
THE STANDARD OF REVIEW PROBLEM
This application for judicial review is brought to impugn the recommendations of the Commission, as reported to the Minister of Fisheries, and through him, to Parliament. Relief is also sought against the Crown. As such, it is imperative to clearly establish what standard of review is appropriate to the proceeding.
The proceeding has been on foot since 1997. There has been a great deal of preliminary forensic skirmishing. The merits finally came on for hearing before McGechan J, on a seventh (amended) statement of claim, which was filed on 26 June 2003.
There are two causes of action: one going to "unreasonableness"; and a second going essentially to errors of law. I need not deal with the latter claim, on which the plaintiff has had some success before McGechan J, but which is not in issue before us.
The first cause of action needs to be understood according to the pleading, which I set out in full:
First Cause of Action – Failure to Fulfil Statutory Duty/Unreasonableness
Wherefore the Plaintiffs claim:
As so framed, that cause of action plainly relied upon two things: first, a failure to "fulfil" the Commission’s statutory duty; and secondly, the traditional standard for review of a discretionary decision, commonly known as the Wednesbury test: viz., whether the particular decision or recommendation is "so unreasonable that no reasonable authority could ever have come to it" (see Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223; and Taggart "Reinventing Administrative Law" in Bamforth and Leylands (eds) Public Law in a Multi-Layered Constitution (2003)).
When Lord Greene MR. used the word "unreasonableness" in Wednesbury he did so in two different senses. One level, his Lordship used the term to describe the various kinds of challenges which go to the strict legality of a public body’s actions. This is a kind of shorthand, to describe concerns about illegality or irrelevancy or like matters. At another level, it is possible, in a limited way, to challenge the substance of a decision: assuming that the agency satisfies the proper purpose and relevancy tests, what the agency did could still be invalidated as being substantively unreasonable if it was so unreasonable that no reasonable body could reach such a decision.
In the High Court, McGechan J correctly noted that this second limb of the Wednesbury test has been modified in some important respects, both in this country and in the United Kingdom. There have been some outright calls for the abandonment of it (although the English Court of Appeal has considered that only the House of Lords could "perform its burial rights", see Association of British Civilian Internees: Far East Region v Secretary of State for Defence  QB 1397 at para ). And in Daly v Secretary of State for the Home Department  2 AC 532 Lord Cooke of Thorndon said:
.... I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corpn was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation (at para ).
Notwithstanding that Wednesbury has not yet been distinctly interred there is, again both in the United Kingdom and in this country, now an overt recognition that where some important interests are at stake Wednesbury review is not appropriate, and that the depth of review should be a less deferential, "reasonableness" inquiry.
This recognition has meant that the application of a modified standard of reasonableness may be appropriate in some contexts. As McGechan J, with respect correctly, noted this is particularly so in the human rights area. In this subject-area what has become known in the United Kingdom as "super-Wednesbury" review has come into play. There courts give decisions of that character "anxious scrutiny" (Bugdaycay v Secretary of State for the Home Department  AC 514, 531 per Lord Bridge). The more substantial the interference with human rights, the more a court requires by way of justification before it can be satisfied that a decision was reasonable (R v Ministry of Defence Ex parte Smith  QB 517, 514 per Bingham MR. and at 539 per Simon Brown LJ). However English Courts have also had to grapple with the requirements of the Strasborg Court which, broadly, has insisted that a "necessity" for interference in individual rights be demonstrated; and that "proportionality" (of response) be confronted in this subject area.
In this case, as I read the summary in McGechan J’s judgment (para  et seq) this case appears to have been run in the High Court on the footing that the traditional standard of review was appropriate, or (at best for the plaintiff) some heightened scrutiny on account of this case being a "treaty matter".
However, before us, Mr. Millard QC distinctly suggested that this is a "hard look" case; Mr. Carruthers QC argued to the contrary. Given that Mr. Millard raised the issue, the point that needs to be addressed more precisely is what is meant by a "hard look" (or as I would prefer to term it, an "adequate consideration") doctrine; and what an administrative law plaintiff would have to advance, and properly ground, for such a claim to review.
This concept had its origins in the decisions of very experienced federal administrative law judges in Washington DC. The standard judicial review test up until (say) the 1960s in the United States of America was very similar to Wednesbury: the impugned decision had to be shown to be "arbitrary and capricious". Some statutory amendments under federal legislation in the United States of America had applied a "substantial evidence" test to certain kinds of decisions. (See e.g. the (federal) Administrative Procedure Act 1946.) But still there was dissatisfaction that, in important regulatory areas (and as part of a crisis of confidence in the work of regulatory agencies) some other (and higher) standard was required.
Senior appellate judges thus sought to find some middle path between, on the one hand, the traditional judicial attitude of extensive deference to agency or authority discretion; and, on the other hand, the extreme (and unpalatable) alternative of interference with the merits of decisions which ought properly to be made elsewhere.
The test which was evolved (and it has gone by various names, including "hard look") is whether the authority has adequately reviewed all relevant factors and considerations and made a properly reasoned choice. This approach was much encouraged by the decision of the Supreme Court of the United States in Citizens to Preserve Overton Park v Volpe 401 US 402 (1971). For some working examples of the doctrine, see South Terminal Corp v EPA 504 F 2d 646 (1st Cir 1974) (failure to develop sufficient data to justify controls on auto pollution); and Palisades Citizens Association v CAB 420 F 2d 188 (D.C. Cir 1969) (failure to consider environmental interests in helicopter routing). And see generally Stewart "The development of administrative and quasi-constitutional law in judicial review of environmental decision making: lessons from the Clean Air Act" (1977) 62 Iowa Law Review 713, 733-740.
It will be observed that this "adequate consideration" doctrine was borne out of a particular time and circumstances. And, as so often happens in the law, the doctrine as so evolved has not been without its own problems. The requirement on an agency or commission to develop an adequate paper trail has been said to be inefficient. And then, if an authority does develop a comprehensive record and fully discusses relevant considerations, how close can a reviewing court go to the merits of the justifications offered by the authority for choosing one alternative over others? Then there is the problem that decision-makers do not necessarily write the long justifications which emerge from agencies – sometimes what emerges are little more than staff justifications for an inarticulate agency choice. There is too the practical forensic problem that an applicant for review may not know, in advance, which standard of review a court is going to adopt and therefore has, at the outset, difficulty in presenting appropriate material. This has led to some procedural difficulties, and an issue as to whether the determination of the standard of review to be adopted should precede the merit hearing, and associated issues. Finally, at the more abstract and jurisprudential level, forcing this sort of task into an adjudicatory mold, including that of reasoned decision making, can result in an agency appearing inarticulate and even arbitrary as it struggles to deal with the competing (and often inconsistent) values which are relevant to its decision.
All of that said, the notion of "adequate consideration" is an important one in public law to check poor public administration and inadequate, cursory, or ill-considered decisions. To a limited extent these concerns are captured by the present administrative law tests (for instance, as by taking into account, or failing to take into account, proper considerations). But the "adequate consideration" doctrine goes further than that, and is a doctrine with real rigour.
To return to this case, it seems to me that if a public law challenge is ever to be mounted along these lines in New Zealand, and assuming a court is prepared to adopt this standard, a proper foundation will have to have been set up for it, much as a proper foundation has to be laid for a New Zealand Bill of Rights Act 1990 challenge. The doctrine cannot just be "spoken to", at the level of legal argument as it were. Mr. Carruthers could, and did, fairly say that if the plaintiff’s case was going to be run along this kind of line, further and distinctly different evidence would have had to have been called by his interests. Whatever is to be said for heightened judicial scrutiny of recommendations of an allocative character, and even assuming that this Court was to be persuaded by full argument that the law ought to be further developed in New Zealand in this subject area, this case, as it has been run, does not lend itself to such a searching examination.
Neither was it argued in this case, before us, that Wednesbury should be finally interred in New Zealand, in favour of an overt recognition of the over-arching (and all-encompassing) "reasonableness" test apparently favoured by Lord Cooke. That too is a matter of no little controversy and distinct complexity. The attractions of a single unitary standard of review are manifest; but whether an indeterminate standard of that character could adequately meet the needs of 21st century New Zealand public law would be a matter for anxious consideration.
This case as run in the High Court always laboured under the difficulty that it was very narrowly pleaded, and that it was put on the established standard of review for discretionary decisions. That was how the trial Judge saw things; and in my view he was correct in responding accordingly. The function and status of the Commissioner; the fact that it is reporting (ultimately) to Parliament; the degree of consultation adopted; the high public policy content of the Commission’s recommendations; and the room for genuine differences of opinion between Maori, all point to nothing more than the traditional Wednesbury approach of a lower level of scrutiny being appropriate in this case.
In making those observations, I do not overlook the point that, at one level, the rights of "disadvantaged" persons are at stake here. But that point is essentially rendered moot, because the Privy Council has endorsed an approach which gives the primary structural approach an emphasis on iwi. To put this another way, that otherwise (legitimate) concern cannot trump the factors I have suggested militate in favour of low level review in this instance.
APPLICATION OF THE STANDARD
If what I have said thus far is correct, this particular application for judicial review drew a very long bow. In my view, the arrows fell well short of the mark. And in any event, this forensic skirmish has been overtaken by events which militate strongly against the grant of relief.
I begin with a general observation. In a subject area such as the present, interpretative approaches to the legislation, the deed of settlement, and indeed the processes surrounding it, should be based on a sympathetic engagement with the subject matter of this treaty settlement: the enterprise should be put in its most favourable light. And an inquiry into a recommendatory function of the kind in issue in this case should not be just a reconstruction of the facts, but is to a distinct extent a normative inquiry into what sort of problem was there to be addressed by this Commission, and how that problem is sensibly to be resolved. Such an approach is not to set to one side matters of "legality"; but it is to emphasise the essential mediating character of the enterprise which had to be undertaken by this Commission.
The second general point I would make, is that most of the matters which the Commission has had to struggle with now enjoy a very real measure of agreement and support. The settlement itself has been hammered out, along with the difficult issues going to the allocation of the benefits of the settlement as between inland and coastal iwi, and suchlike "macro" issues. The question whether the settlement had predominantly to be through iwi has been tested through the Courts, to the most senior appellate level. I think the point needs to be made that enormous progress has been made, albeit slowly, and that, viewed at large as it were, what is now in issue is what might be termed "fine print" issues. To my mind, to trip the settlement up, at this point, would surely require matters of great moment to be clearly identified.
The real concern of this plaintiff is with the overall size of the settlement. Twenty million dollars or so for urban Maori out of a settlement of this size is a minimalist settlement. The trial Judge, and plainly all the Judges of this Court, have some disquiet on that score. But to say that a minimalist settlement is reviewable is to fail to give full effect both to the standard of review, and the many issues which the Commission had to take into account. Unless a reviewing court can say unequivocally that the Commission was wrong, it would be inappropriate to review the overall level of the allocation and send this matter back to the Commission to struggle with it again. This is particularly so where the proposals are currently before Parliament.
Perhaps recognising this reality, the majority in this instance have focussed their concern on two features of the proposals, what I will call for shorthand purposes, "topping up" the putea; and the "winding up" of the putea.
The first matter arises out of the fact that the Commission would be replaced in the fullness of time by TOKM. Twenty percent of the income shares would be held by TOKM. TOKM could, but would not have to, allocate further proceeds to the putea. In short, TOKM is given a discretion to increase the size of the putea but it is not required to do so. The majority would grant review on this basis, and wish to impose a mandatory consideration on TOKM "to consider the adequacy of the putea funding in light of the numbers of Maori who are at that time not able to access benefits through their iwi and in light of the requirement that the settlement be ultimately for the benefit of all Maoris." For myself, I do not see how a pure "discretion" of the kind conferred on TOKM can be said to be unreasonable in a Wednesbury sense; and "substantive (un)fairness" was not run by the plaintiff. What then, is the basis for intervention?
The second point essentially reveals a profound distrust that at some time in the future iwi will consciously do away with this putea altogether, to the detriment of non-iwi affiliated, urban Maori; or at least allow it to in effect wither away.
The problem comes about this way. Both the Commission’s draft Bill, and the present Parliamentary Bill, provide for two types of review. First, there is to be an interim review of the putea under clause 73(1) of the Parliamentary Bill (c/f cl. 45 of the Commission draft Bill) not later than six years after the establishment of the trust. Then there is to be a second type of review twelve years after the commencement of the Act. This to ascertain whether the purposes of the putea are being achieved, or would be better achieved by other means (see Parliamentary Bill clauses 89, 90, 91(b) and (c)). Subsequent independent reviews must be conducted at intervals of not less than five and not more than ten years from the date of the previous review. The purpose of the reviews is (inter alia) to ensure that "the interests of the beneficiaries of the Deed of Settlement" are being served (cl. 92 (b) (ii)). If the putea is wound up the trustees would distribute surplus assets to charitable entities nominated by iwi.
At the end of the day, the concern of the plaintiff is that the putea might go out of existence. The Judge dealt with that concern this way:
Proposals for review do have the effect of allowing for termination after the six-year point, and thereafter. However, the provisions of the scheme to that effect should not be reviewed in a vacuum. The political consequences of any premature or otherwise unjustified move must form a very real control. Further, it is understandable that with a new concept like the putea, which may prove unworkable or simply fail, exit provisions of the character proposed would be thought appropriate. Further, there is some expectation, realistic or otherwise, that iwi mechanisms may some day be adequate to serve urban Maori. The termination possibilities do not make the putea unreasonable in an administrative sense.
The majority in this Court consider that the Commission should have recommended that any decision on the winding up of the putea can only be taken if the trustee is satisfied that those who cannot access the benefits of the settlement through iwi mechanisms are adequately catered for.
With respect, this is to require a cast iron guarantee that the benefits of the putea as such not be done away with. Such a requirement again takes the majority distinctly into the area of deciding what the Commission "ought to have done". That kind of approach and requirement is much closer to the adequate consideration standard to which I referred earlier, rather than that which is appropriate to this case. If some critical feature of a scheme is not adequate – in the sense that no reasonable authority could have come to it – the orthodox approach would be to employ a "remand" technique and send the matter back to the Commission for reconsideration. More importantly, on the merits, it cannot be unreasonable, in a Wednesbury sense, to have a general, discretionary review provision. What may happen in the future depends on events which cannot presently be known; and it is inappropriate to assume bad faith may come into play.
Then there is this point. It is trite that a court faced with a judicial review application has a discretion whether to grant review. That discretion is not fettered, although it must be exercised judicially.
In this case, this is an application for judicial review which has in many ways been overtaken by events, and in my view the consideration of the issues now arising in relation to this putea are far more appropriately left to Parliament. The appellant would doubtless say that it could hardly press on with the merit recommendations until the broad merits of those recommendations were made known, and the interlocutory processes in this case recognised that reality. There is force in those lines of argument. But the fact of the matter is that the Commission in the end decided to "roll up" both the PRESA and POSA allocations and to suggest through the Minister, to Parliament, that all settlement allocations be covered by legislation. The administration of the day endorsed that approach by allowing a Government Bill to be introduced, and then referred to a Select Committee. The recommendations are there presently being reviewed.
It strikes me as incongruous that this Court should now be invited to consider the overall reasonableness of proposals when Parliament has itself embarked on that very exercise. I am conscious too that this Court does not generally give advisory opinions, let alone to Parliament. Given the way events have unfolded over the last several years in this litigation, the inutility of the present application for judicial review has become manifest. It was for this Court to deal with the distinctly "legal" issues, which McGechan J did (and which determination is not now in issue). But what are essentially policy points should now be resolved in Parliament.
That process is now under way. Indeed, the point of most concern to the majority in this case has in fact been addressed in the Parliamentary Bill, which has dealt with the review provisions in greater detail than is to be found in the Commission’s draft Bill.
My overall concern can be graphically seen by reference to the Explanatory Maori Fisheries Bill (2003). That Note states, at 15:
The role of the Minister of Fisheries and of the Government is that of independent reviewer of the work of the Commission in developing the allocation proposal. The Minister of Fisheries is not entitled to substitute his own proposals in the review role. In this way, the Government acts as a final check that the outcomes of the allocation model fulfil the intentions of the settlement in a legally robust and fair manner that is likely to be durable.
That being so, I am quite unable to see why this Court should be engaged in a parallel enterprise on matters which are realistically policy, rather than going to the strict legalities of the proposals.
In the result, I would dismiss the appeal, and leave the adoption of the Commission’s recommendations (with or without modifications as Parliament sees fit) to that institution.
Extracts from the Settlement Deed
Annexure "A", referred to in clause 18.104.22.168 of the Deed, is in the following terms:
Distribution of Settlement Benefits
A distribution system should adequately address the following five questions:
These questions are expanded below:
i. What will be distributed?
A distribution system should specify the type and form of benefits which are to be distributed.
ii. Who will manage the distribution system?
A distribution system should specify any legislative requirements needed to empower a body to effectively manage the distribution scheme. Consideration should be given to the membership of such a body and what input is required to facilitate selection of members. Any management processes should be efficient and decisions should be made in a transparent way.
iii. Who will receive the settlement benefits?
A distribution system should address the criteria to be applied in identifying iwi and determining if a particular iwi has a fishing interest. The scheme will need to address how individual, whanau or hapu interests can be accommodated within the iwi structures. It should consider whether a degree of independence between this function and the distribution function is warranted for purposes of transparency and accountability. Any distribution system should aim to achieve a fair allocation of benefits among Maori.
iv. How will different levels of interest be identified and accommodated?
A distribution scheme should address the criteria to be applied to determine the different levels of interest among iwi in inshore quota, deep water quota, and the benefits derived from Sealord Products Limited.
v. How will disputes be resolved?
There are a number of points in a distribution system where disputes may arise. A distribution scheme should include proposals for a transparent and independent dispute resolution process.
Chronology of Events
December 1989 Maori and Crown negotiate interim fisheries settlement. Maori Fisheries Act 1989 enacted.
July 1992 Commission hui-a-tau discusses allocation principles. Resolutions relating to allocation of PRESA to iwi are incorporated into Schedule 1A of the Maori Fisheries Act.
September 1992 Fifty per cent share in Sealord becomes available and triggers settlement negotiations between Maori and Crown. Final fisheries settlement is reached and Deed of Settlement signed.
December 1992 Deed of Settlement given effect through the enactment of Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.
June 1995 Urban Maori Authorities (UMA) commence proceedings against Commission (Manukau Urban Maori Authority v Treaty of Waitangi Fisheries Commission – CP122/95). High Court orders that a preliminary question be determined before the substantive hearing (HC, Auckland, CP395/93, CP562/94, M1514/94, CP27/95, CP122/95, 30 June 1995, Anderson J) i.e. is the Commission required to allocate PRESA solely to iwi and/or bodies representing iwi?
April 1996 Court of Appeal hears appeal on preliminary question (Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc  3 NZLR 10.
January 1997 Privy Council overturns the Court of Appeal’s findings on the preliminary question and remits the matter to the High Court for determination (Treaty Tribes Coalition, Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities  1 NZLR 513).
22 July 1997 Mr. Thompson and other plaintiffs file the current proceeding against the Commission (CP171/97) known at that time as the "Ryder proceeding" after lead plaintiff. The plaintiffs are four individual Maori and the Wellington District Maori Council.
November 1997 Gallen J declines application by the plaintiffs in present proceeding (CP171/97) for representation orders (Ryder v Treaty of Waitangi Fisheries Commission  1 NZLR 761).
4 August 1998 High Court (Paterson J) determines the preliminary question issue, finding that the Commission is required to allocate PRESA solely to iwi and that in the context of the legislation iwi means traditional tribe. The Court also finds that the allocation model must ensure that all Maori are able to access settlement benefits, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 (the High Court iwi decision).
November 1998 Treaty of Waitangi Fisheries Commission releases a report entitled Report on the Proposed Method of Allocation of Pre-Settlement Assets
March 1999 Treaty of Waitangi Fisheries Commission completes a document entitled Full Particulars of the Optimum Method for Allocation to be included in the Report to the Minister. The Ryder plaintiffs apply to the High Court for an order preventing the Commission from reporting to the Minister of Fisheries on the proposed optimum method of allocation. Orders granted (Ryder v Treaty of Waitangi Fisheries Commission unreported, HC Auckland, CP171/97, 31 March 1999, Anderson J).
Aug-Oct 1999 Court of Appeal hears appeal from High Court on preliminary question. Court of Appeal unanimously holds that "iwi" means a traditional tribe for the purposes of allocating PRESA and by majority that allocation must be to iwi – Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285 (the Court of Appeal iwi decision).
July 2001 Court of Appeal iwi decision is appealed to the Privy Council. Privy Council reaffirms the Court of Appeal’s decision that allocation of PRESA must be to iwi, meaning traditional tribes – Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  2 NZLR 17 (the Privy Council iwi decision).
December 2001 Commission distributes He Anga Mua – A Path Forward, which contains four separate allocation models for consideration by Maori.
August 2002 Commission successfully applies to the High Court to lift the restraining order preventing the Commission from reporting a method of allocation of PRESA to the Minister of Fisheries (Hauraki Maori Trust Board (CP27/94), Te Runanga o Muriwhenua (M1514/94), Te Runanga o Ngati Porou (M734/95), Ryder (CP171/97), Te Kotahitanga o Te Arawa Waka Trust Board (CP122SW/99) v Treaty of Waitangi Fisheries Commission (unreported, HC Auckland, CP27/94, M1514/94, M734/95, CP171/97 and CP122SW/99, 7 August 2002, Paterson J). Commission releases Ahu Whakamua proposal.
14 April 2003 The Commission provides litigants with an advance copy of final allocation proposal (i.e. the Full Particulars report).
May 2003 Ryder (CP171/97) withdraws from the proceeding, which is subsequently known as the "Glancy proceeding" after next plaintiff.
8 May 2003 The plaintiffs in the current proceeding (CP171/97) and plaintiffs in another proceeding, the Morrison proceedings (CP122SW/99), now Whata-Wickliffe (CA73/04), apply to the High Court for interim orders preventing the Commission from reporting its final allocation model to the Minister. Applications are not pursued in view of Crown undertaking not to introduce allocation legislation without prior notice to the applicants.
9 May 2003 The Commission presents He Kawai Amokura to the Minister of Fisheries.
June 2003 The Minister accepts the Commission’s report and does not require the Commission to reconsider any aspects of it. The appellant and other plaintiffs in CP171/97, CP122SW/99, CP122/95 and CIV2003-485-1113 apply to the High Court for interim relief to stop progress of work by Crown and Commission towards allocation. NZ Maori Council and certain "urban" bodies join as plaintiffs to present proceeding.
11-15 August 2003 The interim relief applications are heard and dismissed, but the substantive hearings are timetabled to continue (Morrison v Treaty of Waitangi Fisheries Commission  1 NZLR 419).
October 2003 The plaintiffs in this proceeding (CP171/97) and in the Morrison (now Whata-Wickliffe) proceeding (CP122SW/99 apply for pre-emptive costs against the Commission. The applications are dismissed. Glancy withdraws from this proceeding, which is subsequently known as the "Watson/Thompson proceeding" after the next named plaintiffs.
3-20 Nov 2003 Substantive hearing of allocation proceedings before McGechan J Te Runanga o Ngai Tahu v Treaty of Waitangi Fisheries Commission (unreported, HC Auckland, CIV 1999-485-1113, 6 November 2003, McGechan J); Whata-Wickliffe v TOWFC (unreported, HC Auckland, CP122SW/99, 17 November 2003, McGechan J); Manukau Urban Maori Authority CP122/95 and Watson and Thompson CP171/97 v Treaty of Waitangi Fisheries Commission (unreported HC Auckland, CP122/95 and CP171/97, 28 November 2003, McGechan J).
20 November 2003 Maori Fisheries Bill introduced.
28 November 2003 Judgment of McGechan J in present proceeding (CP171/97).
4 December 2003 First reading of Maori Fisheries Bill, which is referred to the Fisheries and Other Sea-related Legislation Select Committee.
22 December 2003 Watson and Thompson (but not other plaintiffs) file a notice of appeal.
8 March 2004 Watson notifies withdrawal from appeal, leaving Thompson as the sole appellant.
15 March 2004 Closing dates for submissions to Select Committee.
30 March – 4 May 2004 Select Committee meets in Wellington, Rotorua, Gisborne, Christchurch and Whangarei to hear public submissions.
6 July 2004 Proposed date for Select Committee report.
Letter of Transmittal of He Kawai Amokura to the Minister of Fisheries
This allocation model is directed towards ensuring that the fruits of the Settlement are ultimately for the benefit of all Maori. The model that we have developed balances a broad range of competing interests and is designed to assist Maori, today and for future generations, to prosper in the business and activity of fishing.
The Courts have repeatedly acknowledged that in this area the Commission is the specialist body that Parliament established to make the difficult and sensitive decisions that are inherent in the task of allocation. We have been given the unique task of exercising our discretion and power to devise a solution that, in our wisdom and expertise, is best suited to Iwi and to Maori as a whole.
In our task of finding the right balance of allocation we have been guided by a range of considerations that are set out in this Report. However, when considering He Kawai Amokura, we ask that you keep two important matters in mind – compromise and durability.
We have sought to achieve the right compromise having regard to our statutory obligations and what we believe to be fair. We have also sought to maximise the agreement of Iwi and Maori to an allocation model. We have received the support of 93.1% of Iwi representing 96.7% of Iwi-affiliated Maori to proceed to report to you. The Commission has also received indications of support to this course from urban Maori organisations that have been actively engaged with the Commission during its consultation and agreement process.
Maori rights and interest in fisheries were guaranteed by Article 2 of the Treaty of Waitangi. This is an allocation of a full and final settlement of all Maori claims in respect of commercial fisheries. Allocation therefore has a significant impact on the durability of the Settlement between and Maori and the Crown. We take the view that durability is dependent on, among other things, the allocation being accessible to successive generations. Allocation must also ensure that Iwi and Maori continue to maximise their opportunities for commercial success in the business of fishing.
We have not formed our views in a vacuum. We have been guided by the Deed of Settlement, by the legislation governing the pre-settlement assets (primarily quota and cash) and the post-settlement assets (primarily quota and shares in fishing companies), by the resolutions of the 1992 hui-a-tau of the Maori Fisheries Commission, by relevant Court decisions and importantly by a decade of extensive consultation and discussion with Iwi, Maori representative groups and individual Maori.
Balancing all of these things has been a difficult challenge. To meet this challenge we made the decision to address both pre-settlement assets (PRESA) and post-settlement assets (POSA) at the same time in a single allocation model. Dealing with both PRESA and POSA together gave us more scope to find the right balance, the right compromise and the most durable post-allocation structures. This approach means that the final model comprises several components, which are set out in this Report. These components, both individually and collectively, are the product of our consideration and the balancing of a number of inter-dependent factors.
The Commissioners have had to find an appropriate balance between sometimes competing interests and views. This does not mean that we have had a closed mind to any points of view. To the contrary, we have considered all views, but in the end we needed to find a balance between a wide range of sometimes divergent opinions.
He Kawai Amokura
The allocation of the quota, cash and Income Shares will empower Iwi to develop their own assets as they see fit. To support Iwi development, transitional funding will be used to assist Iwi to develop the corporate governance structures required to prudently hold the assets that are to be allocated. The holding of the Voting Shares in AFL by Te Ohu Kai Moana on behalf of all Iwi enables Maori to stand together to develop their commercial interests and also provides AFL and the other companies with a unified and stable shareholder. Through the Income Shares in AFL and the company’s dividend policy, Iwi should gain a larger and more certain revenue stream into the future.
In broad terms, the balance in He Kawai Amokura between the immediate allocation to Iwi of some assets and the central management and annual allocation of benefits from others on behalf of Iwi has been driven by our desire to increase the durability of the Settlement. We have taken the view that any model must have regard for nga uri whakatupu, future generations, and their ability to access both economic opportunities and benefits from the settlement. To this end we have fettered the ability of current generations to alienate quota out of te Ao Maori. This means looking forward and ensuring that future generations have substantial commercial fishing assets to enjoy and develop. The transition funding that we have set aside will increase the opportunity for Iwi fishing businesses to be commercially successful. Similarly, the restriction on the sale of quota and Income Shares will prevent the alienation of Maori assets to non-Maori to the potential detriment of future generations. The situation, however, can be reviewed after a 12 year period.
An environment where those with an interest believe that what they have lost far outweighs the redress provided will always foster an element of dissatisfaction. This is necessarily true in the case of allocation where the benefits provided by the Crown under the Fisheries Settlement already represent a significant compromise on the part of Maori. In such circumstances, to give to one necessarily reduces the available redress for another. It has been necessary for us to weigh these competing priorities in the interests of all Maori in order to find a resolution. The level of agreement that has now been achieved has been hard won.
A key input to deciding a fair allocation model is to take account of the views of individual Maori and Iwi on appropriate tikanga. Some Iwi argued that tikanga Maori required maximisation of benefits to most Maori for a population based allocation. Other Iwi argued that tikanga Maori required recognition of the Rangitiratanga of iwi over the coastline of their rohe and allocation should be based solely on Iwi coastline and not population. The Commission has had regard to varying views on the application of tikanga Maori and other considerations to the issue of the allocation. He Kawai Amokura reflects the desire of Commissioners to find the right compromise and balance between these divergent views. This balance in the allocation model can be noted in the fact that:
This approach has enabled us to maximise the level of agreement. The very high level of support that has been achieved for the Commission to proceed to report to you indicates to us that we have found the right level of compromise between the various, and often divergent, views.
It must, therefore, be kept constantly in mind by you and any others considering this Report that He Kawai Amokura is a finally balanced set of compromises between a range of often competing and divergent factors and views. It is very much a polycentric model .... where the consideration of individual components cannot properly be divorced from consideration of the whole. As such, the alternation of a single component of the allocation model has the potential to adversely affect other components and thereby undermine the integrity of the entire model ....
It has taken significantly longer than any of the architects of the Settlement could reasonably have expected to reach this final stage. It is therefore imperative that the momentum, which has been gained through the concerted work of the Commission and willingness of the vast majority of Iwi to commit to the road ahead, it is not lost now that the Commissioner has reported to you.
It is therefore the Commissioners’ conclusive view that, following your consideration of this Report, the proposed Maori Fisheries Development Bill should be promptly introduced into Parliament.
As the Waitangi Tribunal stated in 1992 in the context of fisheries allocation, and the Privy Council reiterated in 2001, "Treaty matters are more for statesmen than lawyers". We consider that statemanship has been displayed by the Commission and Iwi in reaching the position enshrined in this Report. This role now rests with both you, as Minister, and Parliament.
We therefore commend to you the allocation model and Maori Fisheries Development Bill in this report and what they offer to Iwi and ultimately all Maori.
Iwi Representation Principles and Requirements
The constitutional documents of the mandated iwi organisation must:
Kaupapa 1: Acknowledge the mandated iwi organisation’s obligation to act ultimately for the benefit of all members of the iwi for fisheries settlement purposes irrespective of where they reside.
Kaupapa 2: Provide that membership, expressed as the right to participate in choosing directors, trustees or officeholders according to the nature of the mandated iwi organisation, is a right open to all members of the iwi.
Kaupapa 3: Provide that adult members of the iwi have the opportunity at intervals not exceeding 5 years to elect directors, trustees or officeholders according to the nature of the mandated iwi organisations. Not all positions need be elected at once, but no person can hold office for more than 5 years without an election.
Kaupapa 4: Provide that voting rights in iwi elections and matters relating to constitutional amendments are available to adult members of the iwi and any other persons permitted to vote under the constitution, trust deed or rules of the mandated iwi organisation (members) and are able to be exercised in accordance with the agreed electoral system of that iwi. Issues relating to whangai are for determination according to the tikanga of each iwi. Accordingly the matter of whangai membership and voting rights remains at the discretion of each mandated iwi organisation.
Kaupapa 5: Provide that those entitled to vote have the right to request and exercise a personal postal vote in any process that elects directors, trustees or officeholders according to the nature of the mandated iwi organisation, or considers amendments to the constitution, trust deed or rules. If the mandated iwi organisation has electronic voting facilities then electronic voting must be allowed but cannot be mandatory.
Kaupapa 6: Provide that the mandated iwi organisation must have and maintain a register of those who affiliate to the iwi by whakapapa (members) including contact details and dates of birth and make ongoing efforts to add members to that register and keep it current.
Kaupapa 7: Provide that the organisation is accountable to all the members of the iwi (including those not living within its rohe) for its performance by providing planning and reporting systems to allow adult members of the iwi to measure the performance of the directors, trustees or officeholders and management of the organisation against previously published objectives. These systems must include holding a hui-a-tau (AGM) at which it will provide to iwi members:
Kaupapa 8: Provide a dispute resolution mechanism to deal with disputes within the iwi relating to matters arising under this Act.
Extract from Te Ohu Kai Moana:
Report on the Proposed Method of Allocation of Pre Settlement Assets November 1998
Te Ohu Kai Moana, during the 1997 consultation round, presented the notion of a Development Putea fund. The Development Putea was conceived as a contestable fund for the benefit of all Maori, but which would target those living outside their tribal rohe or who do not have close Iwi ties. Taken together with conditions imposed on Iwi organisations, it would assist in enabling all beneficiaries to have access to the benefits of the settlement that flow from allocation.
As a result of the support received during the consultation hui, and following a recommendation from Taumata Paepae, Te Ohu Kai Moana set up a Project Team to further advance the establishment of a Development Putea. The Project Team comprised Commissioner Whai Dewes, Matiu Rei (as the Iwi representative) and John Tamihere (as the urban Maori representative).
The Project Team discussed matters such as the purpose of the Development Putea, what assets should comprise the Development Putea, who should control the fund and the structure of the controlling body. The Project Team also discussed whether certain classes of beneficiary should get priority distributions from the fund, how to structure the fund so as to ensure accountability and whether the controlling body should contract out its administrative responsibilities.
There were competing views expressed by Iwi and urban Maori over the size of the fund (the amount of PRESA cash contemplated for inclusion ranged between $20 million and $5 million), control of the fund (whether the fund should be controlled by urban Maori representatives, Iwi representatives, or varying combinations), and how the fund should be distributed.
Following the discussions of the Project Team, Te Ohu Kai Moana resolved to establish a Development Putea, in the form of a charitable trust, comprising $10 million of PRESA cash. It is proposed that the shares in Te Kupenga Limited currently held by the Guardian Trust on behalf of Te Puni Kokiri also be included in the fund. The purpose of the fund will be to provide a means through which Iwi can collectively discharge their trust obligations to all their beneficiaries, including those who have not maintained their Iwi links.
Te Ohu Kai Moana has also resolved that the putea will be managed by a Board of Trustees made up of two Iwi and two urban Maori representatives, who will be appointed by Te Ohu Kai Moana after receiving nominations from Iwi and urban Maori. Te Ohu Kai Moana will also appoint a further trustee as a chairperson, who will represent Iwi interests. Iwi control of the fund is a necessary prerequisite given Te Ohu Kai Moana’s statutory obligation to allocate solely to Iwi and the fact that the Trust obligation of ensuring all Maori benefit is an obligation owed to Maori by the Iwi organisations.
The Board controlling the Development Putea will only be able to distribute profits derived from the capital of the fund. Distributions will be available on a contestable basis, and priority of access to the fund will be given to those who live outside their tribal rohe or whose Iwi ties are not maintained.
The trust will be structured to ensure accountability to the beneficiaries. The Trust will be required to submit to Te Ohu Kai Moana a draft annual plan prior to each financial year and an annual report reviewing the Trust’s performance against the preceding annual plan, and the Trust’s records will also be audited annually.
Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 285; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission  1 NZLR 17; Alexander Watson v Treaty of Waitangi Fisheries Commission (HC AKLD CP171/97 28 November 2003); Wellington City Council v Woolworths (No 2)  2 NZLR 537; Pring v Wanganui District Council (1999) NZRMA 519; Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223; Association of British Civilian Internees: Far East Region v Secretary of State for Defence  QB 1397; Daly v Secretary of State for the Home Department  2 AC 532; Bugdaycay v Secretary of State for the Home Department  AC 514; R v Ministry of Defence Ex parte Smith  QB 517; Citizens to Preserve Overton Park v Volpe 401 US 402 (1971); South Terminal Corp v EPA 504 F 2d 646 (1st Cir 1974); Palisades Citizens Association v CAB 420 F 2d 188 (D.C. Cir 1969)
Treaty of Waitangi (Fisheries Claim) Settlement Act 1992: s.3, s.9
Maori Fisheries Act 1989:
Authors and other references
Report of the Proposed Method of Allocation of Pre-Settlement Assets (November 1998)
Full Particulars of the Optimum Method of Allocation to be Included in the Report to the Minister (March 1999)
He Anga Mua (December 2001)
Te Ahu Whakamua (August 2002)
He Kawai Amokura (May 2003)
Taggart, "Reinventing Administrative Law" in Bamforth and Leylands (eds) Public Law in a Multi-Layered Constitution (2003)
Stewart, "The development of administrative and quasi-constitutional law in judicial review of environmental decision making: lessons from the Clean Air Act" (1977) 62 Iowa Law Review 713
Explanatory Maori Fisheries Bill (2003)
I Millard QC and H McDouall for Appellant (instructed by Woodward Law Offices, Lower Hutt).
C Carruthers QC, J P Ferguson and T B Johnson for First Respondent (instructed by Kahui Legal, Wellington).
V L Hardy and D N Soper for Second Respondents (instructed by Crown Law Office, Wellington).
R E Brown for Third Respondents (instructed by Bell Gully, Wellington).
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