Proceedings Filed Over Handover Of Rotorua Lakes
ROTORUA LAKES PROTECTION SOCIETY INC.
Press Release 25 August 2004
COURT PROCEEDINGS FILED OPPOSING GOVERNMENT HANDOVER OF ROTORUA LAKES TO TE ARAWA
Major proceedings have today been filed in the Rotorua High Court by the Rotorua Lakes Protection Society, opposing the Government's proposed settlement to hand over 13 Rotorua Lakes to Te Arawa.
The proceedings challenge the reasons given by the Crown in December 2003 for undertaking a further settlement. They claim there is no legal reason for the Crown to make any change to the existing Crown ownership. The present position was agreed between the Crown and Te Arawa in 1922, and the Society says that 1922 Agreement and its associated 1922 Act remains in force and should not be changed.
This means, that despite the Crown’s position to the contrary, there is no legal compulsion on the Crown to transfer the ownership of the lakebeds from public ownership to Maori because the 1922 Act extinguished any customary rights Te Arawa had in the lakebeds.
A spokesman for the Society, Mike McVicker said "that in December 2000 a group of concerned Rotorua people formed a group called the Rotorua Lakes Protection Group."
"We have always maintained that the majority of Rotorua people are strongly opposed to any change of ownership. They have shown this through a petition of 14,231 signatures presented to Parliament and in 2 public opinion polls, and secondly, the lakes were vested in the Crown in 1922 in full and final settlement of any claims Te Arawa may have had in the lakebeds - they should stay in public ownership," he said.
"During the past 4 years we have made numerous submissions to both Government and the local Rotorua District Council in an effort to open up this significant issue to public consultation. Our submissions have been ignored."
"Today all Rotorua people and visitors alike have free and certain access to the Lakes. By transferring the title from the Crown the lakebeds will be vested in Te Arawa forever. Our existing certainty will be replaced by an uncertain future. That should not occur to the Rotorua Lakes which are a national treasure and must stay in public ownership," he said.
Mr McVicker said that "earlier this year as a last resort we sought our own legal advice on the reasons given by Government for why it had to hand over ownership of the lakebeds to Te Arawa."
"Our advice is that there are no legal reasons why the lakebeds should not stay in Crown ownership. Accordingly, our Society was formed to bring the proceedings."
"One of the core arguments in the case is that the Society will be asking the Court to treat the contract made between the Crown and Maori in the same way as it treats a contract with everybody else," said McVicker.
"If our claim succeeds there will be no legal basis for Government to hand over the 13 lakebeds to Te Arawa. That being the case, the $10m Government proposes to pay Te Arawa as part of the settlement, would be better spent cleaning up the Rotorua lakes," said Mr McVicker.
Summary of Legal Proceedings
The Crown and Te Arawa reached an agreement in 1922 under which -
* Ownership of the Rotorua lakes was vested in the Crown, and
* The Crown agreed to pay an annuity of $12,000 p.a. to Te Arawa
* The Crown also agreed to provide 40 fishing licences annually.
The Crown then enacted the 1922 Act, which declared that the beds of the Rotorua lakes were “the property of the Crown, freed and discharged from the Native customary title, if any”.
The Crown issued a media release on 12 December 2003 announcing agreement in principle on a new lakes settlement offer which will –
* Transfer title in 14 Rotorua lakes from the Crown to Te Arawa (although the 14 lakes has now been reduced to 13)
* Pay $10 million financial redress to Te Arawa
* Increase the number of fishing licences issued to 200 annually.
Reasons given by the Crown for this settlement are as follows –
* it settles all Te Arawa’s Treaty Claims to the 13 lakes
* the Crown is to acknowledge specifically two breaches of the Treaty as part of the settlement, namely –
a) Failure to provide enough fishing licences in 1908, and
b) Failure to review the $12,000 annuity since the 1922 agreement
(Note – there is no acknowledgement that there has been any Treaty breach
over the ownership of the lakebeds)
The Crown material advises “The 1922 Agreement was not a Treaty settlement over the lakes.... (the parties)….are not revisiting the 1922 Agreement, but are settling Treaty grievances from 1840 to 1992”.
The Applicant’s position
The Applicant says –
* The Crown has no legal reason to renegotiate the 1922 Agreement or repeal the 1922 Act
* That the Crown reached an agreement in 1922 which settled fully Te Arawa’s Treaty claims to the lakebeds
* That by dressing up its 2003 settlement offer as a Treaty settlement, the Crown is impeding public debate
* That it is putting forward a legal justification to disguise its real reasons for reaching a new settlement with Te Arawa
* Those legal reasons are impeding informed debate on the settlement,
* The Applicant seeks declarations that the 1922 Act “was effective legally to extinguish Te Arawa’s customary title to the lakebeds”; and further there are “no valid reasons for the Crown cancelling, renegotiating, or amending in any way the 1922 Agreement”.
A key submission in the case will be that the ordinary law of contract applies to Maori in the same way that it applies to all New Zealanders. In other words, even if there is a breach of the Treaty (which is denied by the Applicant) this does not create a legal obligation on the Crown to renegotiate the 1922 Agreement.
If the Applicant obtains its declarations from the Court, then the only reason the Crown has for changing the present arrangements that apply to the Rotorua lakes is because the Government has chosen to agree to a new settlement in the exercise of its political discretion. Importantly, if there are no legal reasons to compel any particular outcome, the public can enter into that debate and decide freely whether they would rather see other political outcomes such as –
* The Crown using the $10 million to clean up the lake water, and
* Keep the lakes in Crown ownership
Such a debate has been impeded to date because the Crown has announced that there are legal and/or Treaty reasons which compel it to settle with Te Arawa.
The Applicant says this is wrong legally; and that the Crown has a full and unfettered political choice what it does (if anything) about the Rotorua lakes; and that choice should be openly and freely debated in public. A Court decision, as sought by the Applicant, will allow that to happen.
QUESTIONS & ANSWERS
Who is behind the Rotorua Lakes Protection Society?
A group of Rotorua residents who for the last 3 ½ years have lobbied to maintain the Rotorua Lakes under Crown control for all New Zealanders.
What mandate do they have to contest this issue?
The Society has always acted on behalf of the majority of Rotorua residents, who want to retain the Lakes under public ownership.
How has the above majority been established?
* A Daily Post Poll confirmed on 5 December 2000 that 93% of respondents were against any change in ownership i.e. ownership should remain vested in the people of New Zealand via the Crown.
* A Chamber of Commerce survey held on 10 March 2001 revealed 84% against any change.
* Three years ago a petition with 14,231 signatures opposed to any change was delivered to Parliament on 16 August 2001
Why take legal action now?
Requests, letters and submissions by the Society to both Government and Council to engage in a public debate have been ignored for 3 ½ years. Accordingly, the Society sought its own legal advice and that advice says to file the proceedings.
What does the Rotorua Lakes Protection Society hope to achieve by filing Court proceedings?
1. The Society is asking the Court to say that the reasons the Government have given for settling with Te Arawa are wrong; and that there is no legal reason for the Crown to give ownership of the Lakebeds to Te Arawa.
2. The Society then wants a public debate to determine whether the public of Rotorua and New Zealand want to retain the ownership of the Lakebeds in the Crown.
3. The Society would like the public to tell the Government to spend the $10 million on cleaning up the lakebeds instead of giving it to Te Arawa, as part of this settlement.
Who is funding the legal case?
The Rotorua Lakes Protection Society members are funding the claim initially and a public fundraising campaign is being launched today to meet future legal costs.
Who has provided the legal advice?
Schnauer and Co a boutique Auckland law practise has provided the legal advice.
Who is the legal claim against?
The claim filed today is against the Crown for basing the December 2003 settlement offer to Te Arawa on incorrect legal grounds. The Society’s claim is not against Maori or Te Arawa.
Should Te Arawa still receive the annuity?
Yes. Te Arawa should continue to receive the annuity provided for by 1922 agreement.
Are there any similarities between the Foreshore and Seabed case?
* The Society can’t see any difference; they both should be retained in public ownership.
* Yet, on the one hand Government is willing to pass legislation to keep the Foreshore and Seabed in public ownership; and
* At the same time they want to transfer the lakebeds from public ownership to Te Arawa.
What is the relevance of customary title which was discussed at length by the Court of Appeal in the Foreshore case?
None. Customary title in the Rotorua lakebeds was extinguished by the Native Land Amendment and Native Land Claims Adjustment Act 1922.
What is wrong with the proposed new settlement?
The evidence clearly shows the majority of people don’t want it.
Why do the majority of people not want the settlement?
Because the majority of people have confidence that the Crown will run the Lakes properly for the benefit of all New Zealanders.
Also the Lakes are a National treasure. The people have certainty now with the Lakes in Crown ownership and they don’t want to replace that with an uncertain future.
Why is the Crown doing this?
The Crown says it has a legal obligation to do the settlement. The Society says that is wrong.