User talk:Debsworkwiki

Thanks team – some consensus of agreement, at least for my situation.

Deb – can you please capture this conversation on legal wiki.

Many thanks James From: Geoff Hulbert Sent: Monday, 27 January 2014 2:35 p.m. To: James Hardy; Bronwyn Barnard Cc: Jonty Somers; Kim Bellingham Subject: RE: Reserve Boards and TOW

I think that for Reserve Bds (and as James confirms this Bd is deemed to be a Bd established under the RA) that as they have a c/m function then they are doing the work "for" the Crown and that the S.4 CA duty applies to them. Note for such Bds the MOC issues concessions. This reinforces that the admin function of such Bds has this crown connection. I'm not convinced the duty applies to a council owned reserve - the Council may have purchased the reserve out of its own resources; in this case the reserve is not being managed on behalf of the Crown; rather the Crown has a supervisory role to ensure it is being "properly" managed. In that case the Crown connection is quite distant and thus I think the Council is not required to apply S.4 CA But note S.4 LGA 2002 (another S.4) has a Treaty obligation. Arguably this obligation applies to S.10 LGA and by S.13 it applies to functions etc under other enactments. I also think this LGA provision would also apply wher the Crown vests the reserve in the Council. But of course in so vesting it the MOC must have considered the S.4 CA duty!! So for a Bd, I think S.4 CA applies. Thus for James's case it applies. For a reserve vested in a Council (I have not considered other bodies) I think that as the LGA specifically addresses the Treaty issue the provisions in the LGA apply and not S.4 CA. Happy to discuss further. Cheers Geoff

From: Kim Bellingham Sent: Monday, 27 January 2014 2:03 p.m. To: James Hardy Cc: Jonty Somers; Kim Bellingham; Geoff Hulbert Subject: Reserve Boards and TOW

Hmm.. I can see your quandary, though I think it is ultimately answered by the fact it is deemed to be a Board under the RA and thus is exercising public powers under that Act.

A recent somewhat analogous example, where we turned our minds to this issue, was the Te Urewera Board. In that instance we specifically clarified that s4 continued to apply (though we needed in this instance as there was no longer any link to NPA80 or CA87). There was endless discussion about whether the Board was taking on Article 1 governance powers, and this was the basis for the ongoing application of s4 - the question being whether there was an exercise of a public power. We also looked at it from an article 2 perspective, that in replicating the National Parks Act the s4 obligations to iwi and hapu (eg active protection) must continue (we were thinking both of Tuhoe itself as well as the other iwi/hapu with customary interests within Te Urewera).

Cheers Kim

________________________________________ From: James Hardy Sent: Monday, 27 January 2014 2:01 p.m. To: Bronwyn Barnard Cc: Jonty Somers; Kim Bellingham; Geoff Hulbert Subject: RE: Reserve Boards and TOW The subtleties with my situation is that we have a reserve board established by special legislation (s18 ROLD 1956) and is deemed to be a Board established under the RA77. The 8 members board contains only 1 DOC rep, with 3 council reps, and 4 iwi reps. A further subtlety is that the land itself is Maori freehold and has a reservation overlay.

My first blush look at this was to consider s4 still applies, as the RA is listed in Schedule 1 to the CA87. However, the fact that this Board is an anomaly i.e. established under special legislation caused made me to think twice.

James

From: Kim Bellingham Sent: Monday, 27 January 2014 1:49 p.m. To: James Hardy Cc: Jonty Somers; Kim Bellingham; Geoff Hulbert Subject: Reserve Boards and TOW

Hi Bron

I agree with your advice. (And certainly hope we get a definitive clarification that s4 does apply in the circumstance of local govt RA 77 vestings, appointments to control and manage, which strikes me as the correct approach.)

Cheers Kim

From: Bronwyn Barnard Sent: Monday, 27 January 2014 1:49 p.m. To: James Hardy Cc: Jonty Somers; Kim Bellingham; Geoff Hulbert Subject: Reserve Boards and TOW

Hi James

You’ve asked the question as to whether s4 CA87 applies to reserves boards under RA77. You want to deal with this in your submissions to the Maori Appellate Court in the Lake Horowhenua matter. I’ve set out a quick reply below.

Jonty, Kim and Geoff I’d appreciate any comment you may have.

My view is that s4 CA87 applies to reserves boards under RA77. I base this on the following:

1.   RA77 is in the 1st schedule of CA87. The Whales case is authority that s4 CA87 applies to the Acts in Schedule 1.

2.    S4 CA87 is set out below.

‘Act to give effect to Treaty of Waitangi This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.’

3.   The wording of s4 is in the passive voice - it does not specify who it is who is to act under it. It is a fair assumption that it is anyone who has functions and powers under RA77.

4.   In applying s4 CA87 to RA77, we can say that the reserve board is created under RA77 and its functions and powers etc are in that Act. It follows that in undertaking those functions and powers it is interpreting [and administering] the parts of RA77 that apply to it. Given this, it is under an obligation to give effect to the principles of the Treaty.

5.   My view is that on this basic interpretation approach, the reserves board is subject to s4 CA87.

6.   The counter argument is that the Treaty is between the Crown and tangata whenua so does not apply to 3rd parties.

7.   There is uncertainty about the application of the Treaty to local government so when reserves are vested in local authorities or bodies other than the Crown this issue is brought into stark focus.

8.   The Tribunal has held that the Crown’s obligation under Article 2 to protect Maori rangatiratanga is a continuing one and that it can’t be avoided or modified by the Crown delegating its powers or obligations. Any delegation would be subject to that duty. (See Ngawha Geothermal Resource Report 1993.)  I understand that the Crown has not accepted or rejected this recommendation but need to follow up with Crown Law on this point.

9.   I note that the Local Government Act 2002 deals with the Treaty duty by spelling it out in parts 2 and 6 – see s4 of that Act - but this doesn’t extend to other Acts under which local government has functions and powers.

Happy to discuss.

Nga mihi: Bronwyn