Privy Council Appeal No. 67 of 2000

Manukau Urban Maori Authority and Others	Appellants
	v.
Treaty of Waitangi Fisheries Commission and Others	Respondents

and

	Privy Council Appeal No. 68 of 2000

Reuben Brian Perenara	Appellant
	v.
Treaty of Waitangi Fisheries Commission and Others	Respondents

	FROM

	THE COURT OF APPEAL OF NEW ZEALAND
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	JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 2nd July 2001
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	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Steyn
			Lord Hoffmann
			Lord Hutton
			Lord Millett
		  	[Delivered by Lord Hoffmann]
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1. 	This appeal raises a question on the construction of certain provisions of the Maori Fisheries Act 1989 as amended which was ordered by a previous decision of the Privy Council to be tried as a preliminary issue.  In order to make the question intelligible, their Lordships must state some of the background. They take it from the careful and comprehensive judgment of Paterson J, who tried the preliminary issue in the High Court.
2. 	The Treaty of Waitangi guaranteed to the Maori people of New Zealand the “full exclusive and undisturbed possession” of, among other things, their fisheries.  The ownership, nature and extent of these rights has never been precisely determined. General legislation passed in 1986 introduced a quota management system (QMS) to conserve certain fish species by limiting catches to a specified annual quota and allocating that quota.  Maori claimed that the restrictions imposed by QMS on their catches were in breach of their rights under the Treaty and customary law.  The principal complainants were certain iwi, or tribes claiming descent from a common ancestor, which had a history or tradition of commercial fishing.  They made claims to the Waitangi Tribunal and instituted a number of law suits against the Crown.

3. 	Discussions between the Crown and Maori negotiators resulted in an interim settlement embodied in the Maori Fisheries Act 1989.  This created the Maori Fisheries Commission (“the Commission”) with the principal functions of encouraging and assisting Maori to enter or develop the fishing business: see section 5 (a) and (b). 

4. 	The Crown agreed to make over to the Commission by instalments 10% of the total quota for species within QMS and $10 million in cash.  The Commission formed a company called Aotearoa Fisheries Limited (“Aotearoa”) in which it held all the shares and to which it agreed to transfer at least half the quota and money which it received from the Crown.  Section 7 provided that during the period expiring on 31 October 1992 (which the Act called “the transition period”) the Commission could let but not otherwise dispose of any quota which it was allocated and could not dispose of its shares in Aotearoa.

5. 	During the transition period the litigation between Maori and the Crown was stayed by consent while negotiations for a final settlement continued.  At the same time the Commission consulted with iwi involved in fishing about the disposal of its assets after the transition period came to an end.  The Commission favoured the distribution of its assets to iwi but the extent of its power to implement such a scheme, even after the end of the transition period, was not altogether clear.  It was advised that specific statutory powers would probably be needed. The process of consultation on the scheme culminated in a hui-a-tau (annual general meeting) on 25 July 1992 which adopted ten resolutions.  The first was that “the hui endorse the decision made by the Commission to seek legislative authority to further secure the Commission's intention to allocate its assets to iwi”.  The second was that the Commission should examine alternative methods, consult with iwi and prepare discussion material “to enable agreement to be reached on the optimum method for allocation”.

6. 	These consultations and resolution were an internal matter among Maori for the purpose of deciding how to deal with assets which had already been transferred to the Commission in part-satisfaction of the Maori fishing claims.  But shortly after the 1992 hui, negotiations between the Crown and Maori for a final settlement of those claims moved into higher gear. An opportunity arose to acquire a half share in a substantial fishing company called Sealords Products Limited.  The Crown offered to provide $150 million to enable the Commission to acquire the share and also to allocate to the Commission, for distribution to Maori, 20% of quota in respect of any future species brought within QMS.  In return for these assets, Maori were to surrender all their fishing claims under the Treaty or customary law, agree to the exclusion of fishery claims from the jurisdiction of the Waitangi Tribunal and discontinue their legal proceedings.

7. 	The Treaty of Waitangi had been made, as recited in the preamble to the Treaty of Waitangi Act 1975, between Her late Majesty Queen Victoria and the Maori people of New Zealand. A settlement of the fisheries dispute which involved the surrender of Treaty rights would have to be made between the same parties. The Crown therefore insisted, as a precondition of the settlement, that it should be satisfied that the Maori negotiators had plenipotentiary authority to bind the Maori people and that the settlement was accepted as “ultimately for the benefit of Maori” (see clause 5g of a Memorandum of Understanding signed on behalf of the Crown and the Maori negotiators on 27 August 1992).  After numerous hui had been held and the settlement proposals endorsed, the Crown declared itself satisfied that these conditions had been met and a formal Deed of Settlement, expressed to be made between Her Majesty the Queen and Maori, was executed on 23 September 1992.

8. 	Most of the Deed of Settlement is concerned with the new assets to be transferred to the Commission (which was to be reconstituted and renamed the “Treaty of Waitangi Fisheries Commission”) and their acceptance by Maori in full and final settlement.  But clause 4.5, headed “Distribution of benefits to Maori”, also had something to say about the Commission's pre-settlement assets.  The relevant provisions were:
“4.5.1   Maori agrees that the settlement evidenced by this Settlement Deed of all commercial fishing rights and interests of Maori is ultimately for the benefit of all Maori.

4.5.2    The Treaty of Waitangi Fisheries Commission is 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 will be empowered to allocate assets held by the Maori Fisheries Commission at the day before the Settlement Date.”

9. 	Effect was given to the Deed of Settlement by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which amended the Act of 1989.  It added a new paragraph to section 6, which specified certain “particular functions” of the Commission:
“(e)   In relation to the Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992 –

(i)	to consider how best to give effect to the resolutions in respect of the Commission's assets, as set out in Schedule 1A to this Act:
...

(iv)	to report to the Minister on the matters referred to in this paragraph.”

10. 	Schedule 1A reproduced verbatim the resolutions adopted at the hui-a-tau of July 1992.  In section 9(2), a new paragraph was added to a list of the powers of the Commission:
“(l)   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).” 

11. 	The power to give effect to the scheme was qualified by a new subsection (4):
“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.”

12. 	Finally, section 19(2) of the 1992 Act provided that notwithstanding the expiry of the transition period under the 1989 Act, the restrictions on disposal in section 7 should continue to have effect “until the Commission effects the distribution of assets under section 9(2)(l) of the [1989 Act as amended]”.

13. 	The Commission commenced consultation with iwi, in accordance with the second hui-a-tau resolution, with a view to formulating a scheme for the distribution of the pre-settlement assets to iwi.  These proposals were challenged as unlawful in proceedings brought on behalf of Maori associated otherwise than in traditional tribes, such as urban Maori authorities which serve communities irrespective of the iwi to which they belong.  They claimed that a distribution only to iwi could not give effect to the overriding purpose of the settlement, which was that it should be for the benefit of all Maori.  It would exclude the many Maori who were not in touch with their iwi, including a substantial number who could not identify the iwi to which they belonged. 

14. 	The Commission's answer was that it had no statutory power to distribute any of its assets except that conferred by section 9(2)(l), which was confined to distribution pursuant to a scheme contained in a report under section 6(e)(i) and (iv) on how best to give effect to the resolutions adopted at the hui-a-tau.  Those resolutions were for distribution to iwi and no one else.  The Commission accepted that the settlement had to be “ultimately for the benefit of all Maori” but said there was no reason why it should not be able to devise a scheme for distribution to iwi which satisfied this requirement.

15. 	On 30 June 1995 Anderson J made an order for the trial as a preliminary issue of the question of whether, as a matter of construction, the Commission's powers of distribution were limited to distribution to iwi.  After being set aside by the Court of Appeal, the order for trial of a preliminary issue was reinstated by the Privy Council and the question reformulated as follows:
“1.   Does the Maori Fisheries Act 1989 (as amended by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992) require that any scheme providing for the distribution of 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 1989 Act , should provide for the allocation of such assets solely to ‘iwi’ and/or bodies representing ‘iwi’?

2.   If the answer to question 1 is Yes, in the context of such a scheme does ‘iwi’ mean only traditional Maori tribes?”

16. 	Paterson J answered both questions Yes and his decision was affirmed by a majority in the Court of Appeal (Keith, Blanchard and Tipping JJ, Gault and Thomas JJ dissenting).  Against that decision the various plaintiffs appeal to Her Majesty in Council.

17. 	The arguments have ranged widely, both in the lower courts and before the Board, but their Lordships consider that the point is a very short one.  The Commission, as a statutory body, has no power to distribute its assets except in accordance with the terms of the Act.  Section  19(2) of the 1992 Act makes it clear that the Commission's only power to dispose of quota or its shares in Aotearoa is that conferred by section 9(2)(l) of the 1989 Act as amended.  That paragraph provides only for a distribution under a scheme which gives effect to the resolutions of the hui.  Those resolutions plainly provide for distribution to iwi.  The concurrent findings of Paterson J and the Court of Appeal, which were scarcely challenged in argument, were that in using the term iwi, the resolutions intended to refer to traditional tribes.  As Thomas J said in his dissenting judgment “there is not the slightest doubt that those representatives of iwi gathered at the hui-a-tau on 25 July 1992 intended the pre-settlement assets to be distributed to iwi and that they meant iwi in the sense of traditional tribes”. 

18. 	This reasoning leads in their Lordships' opinion to the inescapable conclusion that Paterson J and the majority in the Court of Appeal were right.  In his dissenting judgment, Gault J said (at paragraph 19) that the role of the Court was to determine “whether the statutory empowerment of the Commission carries the mandatory obligation to distribute solely to iwi”.  Such an obligation might be inconsistent with the trust obligation of the Commission to ensure that the settlement was for the ultimate benefit of all Maori.  Gault J said that if there was a conflict between the purpose of the trust and the specified mechanism for achieving that purpose, “the mechanism must give way”. Therefore he would not construe the statute as conferring only a power to distribute to iwi.  Other bodies could also share in the distribution.

19. 	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)(l) 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 section 9(2)(l) could satisfy its trust obligations.  Counsel for the Commission accepted that any scheme would have to be in accordance with the Commission's overriding 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 section 9(2)(l), it will have to seek further statutory authority. But the possibility that the Commission's powers may be insufficient to permit any distribution to be made is not a reason for construing the statute as authorising a method altogether different from that approved by the hui. 

20. 	Their Lordships consider that the only ground upon which a court could depart from what appears to be the plain meaning of section 9(2)(l) 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.
21. 	Their Lordships would also observe, without wishing to pre-empt 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 V-C in Tito v Waddell [1977] Ch 106 , 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 power under section 9(4) to require reconsideration of aspects of the scheme. 

22. 	Thomas J likewise argued in his dissenting judgment that the legislature could not have intended to restrict the Commission to a distribution to iwi if this might frustrate the achievement of a settlement for the benefit of the whole Maori people.  His view was that “the Commission retains a statutory discretion to promote a scheme to distribute the pre-settlement assets to non-traditional iwi or other Maori organisations if it sees fit”.  Putting the matter in this way suggests that the Commission started with a general discretion and the question is whether it has been restricted by section 9(2)(l) or whether some residual discretion remains.  But the Act confers upon the Commission no general power to dispose of its assets.  On the contrary, it is specifically prohibited from making any disposal of its principal assets except in accordance with section 9(2)(l).  

23. 	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.