Nicola R. Wheen740
All of New Zealand's remaining indigenous forests are managed for conservation purposes or are subject to a sustainable forest management regime. However, the transition from exploitation to sustainable management has not been seamless. In particular, the process has struggled to accommodate the rights and expectations of certain Maori landowners to use their land for their support and maintenance. These landowners were granted their lands by the Crown under the South Island Landless Natives Act (SILNA) of 1906, as either a remedy or a form of compensation for their state of landlessness. They were landless because the Crown and its agents had purchased nearly all of their lands without ensuring that the land and the resources it had promised to reserve for them were actually reserved, and despite the Crown's guarantee in the 1840s Treaty of Waitangi that Maori would retain possession and control of their lands following their cession of sovereignty to the Queen. In fact, the land granted was so remote and hostile as to be basically useless until the type of timber growing there was over harvested elsewhere thus driving up the price. Only then did forestry by clear-felling on Maori SILNA land become viable.
This case study considers the settlements that two of the indigenous landowner groups covered by SILNA were able to negotiate with the Crown. In these settlements, the Maori landowners agreed to end clear-felling on their blocks of land within the Waitutu and Tutae-Ka-Wetoweto forests in southern New Zealand. In return, they received monetary compensation for lost cutting rights. The Waitutu block is now managed by the Department of Conservation as if it were a national park, whereas the Tutae-Ka-Wetoweto blocks are managed for conservation purposes by the landowners themselves. Both settlements were implemented in law by legislation, the Waitutu Block Settlement Act 1997 and the Tutae-Ka-Wetoweto Forests Act 2001.
In the first few months of 1840, more than 500 Maori chiefs signed the Treaty of Waitangi with representatives of the British Crown. They agreed to ‘give absolutely to the Queen of England for ever the complete government of their land’ and also the valuable right of pre-emption. The Queen in turn promised to protect all the people of New Zealand and give them the same rights and privileges as British subjects, and guaranteed to Maori ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’.741
Despite the Treaty, the settlement process deprived Maori of most of their land. In the South Island (Te Waipounamu in Maori), the Crown and its agents acquired Maori land for settlement in a series of major land purchases, each accompanied by broken promises that the Crown would reserve land and resources for local Maori. By 1891, half of Ngai Tahu (the Maori group whose domain covered most of the South Island/Te Waipounamu) were reported to have no land, and only 10 percent to have sufficient land.742 Ngai Tahu were left with just one-thousandth of their original land holding.743 The Iwi's landless state was officially recognised as early as 1879, but it took years of political pressure and a series of Parliamentary committees and Royal commissions before the Crown provided any actual redress.
Then between 1893 and 1905, just over 57,513 hectares of land in 18 blocks ranging from Stewart Island (Rakiura to Maori) to Marlborough Sounds were allocated to 4,064 beneficiaries in grants subsequently authorised by the South Island Landless Natives Act 1906.744 The Act's purpose was to authorise allocations of selected Crown land to South Island Maori affected by landlessness ‘to provide for their support and maintenance’.745 Nevertheless, in what was later described as a ‘cruel hoax’,746 the grants were found to be woefully inadequate. They were smaller than had been recommended, holdings were fragmented, and most of the lands allocated were ‘remote; rugged, broken and bush-covered; infertile; wet ...; located long distances from railways and mostly not roaded; insufficient in size for farming and difficult for milling’. ‘Capital would have been needed for development and was not made available’ and ‘[p]erhaps most significant, the lands were far from the owning beneficiaries' traditional kainga or present home’.747
The owners of a limited number of SILNA blocks have managed to earn some profit from logging on their land; harvesting on some blocks began soon after the original land grants and continued through the 1990s. By and large, however, forestry activities on most of the SILNA blocks were not economic for some time. Their very ruggedness and remoteness effectively protected the virgin indigenous forests at a time when two thirds of New Zealand's indigenous forests were destroyed.748 By the 1970s, however, indigenous timber was scarce and valuable enough for more SILNA landowners to be in a position to realise a meaningful economic benefit from their land. They began clear-felling,749 to ‘devastating effect’.750
As the SILNA blocks – and other forests – were logged, public opinion swung to favour conservation of all remaining indigenous forests. From the mid-1980s, the government developed a policy to conserve or sustainably manage all remaining indigenous forests. In 1986, the West Coast Accord was agreed between the government, conservation organisations, timber millers, and local authorities.751 It protected some 215,000 hectares of indigenous forest on the west coast of the South Island/Te Waipounamu, and provided for the sustainable harvesting of other Crown-owned west coast indigenous production forests. The Accord was subsequently cancelled in 2000 when the government disallowed all logging in west coast forests and moved them into the conservation estate.752 In 1990, in the face of an emerging international market in wood chips, the government began actively controlling exports of indigenous timber under customs legislation753 and in 1993, a new ‘Part IIIA’ was inserted into the Forests Act 1949 to promote the sustainable forest management of indigenous forest land.754 This legislation bans exports and milling of indigenous timber products that are not harvested under a sustainable forest management plan or permit.755 Significantly, Parliament created two exemptions to Part IIIA: the Crown-owned west coast production forests (because they were already subject to a sustainable management regime under the West Coast Accord) and the SILNA land.756
The SILNA exemption was created because the land had been provided for the maintenance and economic development of the Maori owners.757 Forestry was virtually the only activity open to landowners seeking to derive an economic benefit from the land758 and the statutory exemption was in effect a ‘Parliamentary recognition of the Crown's obligation to SILNA owners’.759 The exemption meant that for a time the SILNA landowners were the only landowners in New Zealand able to clear-fell their indigenous forests. Some SILNA landowners continued to do so, profiting mainly from international demand for wood chips. They argued that the SILNA expressly confirmed their right to use the land to provide for their support and maintenance,760 but the Forests Act exemption was perceived to be unfair by some other forest owners.
The main opposition to SILNA clear-felling projects, however, came from conservation organisations. Public pressure for conservation focussed especially on the Waitutu block and two of the Lords River blocks. The Waitutu block is located on the southern coast of the South Island/Te Waipounamu, within the Waitutu forest that today forms part of the Fiordland National Park and the South West New Zealand World Heritage Area. The Waitutu forest is the ‘largest remaining relatively unchanged lowland forest in New Zealand’.761 Here,
geological uplift has led to a remarkable ‘staircase in time’ – a half-million-year-old flight of marine terraces chiselled by the sea out of soft mudstones. On the terraces ... the forest has grown in a great patchwork quilt. The terraces are the best surviving example of a once-widespread and significant component of the New Zealand natural landscape.762
The Waitutu block itself includes ‘the most recent and most fertile of Waitutu's distinctive marine terraces and thus the most impressive podocarp forests’.763 The Lords River blocks lie within the Tutae-Ka-Wetoweto forest on Stewart Island/Rakiura, the smallest of New Zealand's three major islands. Rakiura's
outstanding values ... include extensive forests and natural features which deserve ‘protection in the national interest’. The island is home to a number of endangered birds and plants, and is notably free of mustelids, such as ferrets and stoats, which have devastated birdlife in mainland forests.764
The government made a ‘generally known commitment in the early 1990s ... to preserve the Waitutu Block given its boundary with the Fiordland National Park (a world heritage site)’,765 but negotiations had ground to a halt. ‘To focus the Crown’, the Waitutu Incorporation ‘creat[ed] a specific value on their first option of harvesting’ by entering into an agreement with a milling company to harvest ‘substantial volumes of rimu and other timber’ on their land, and began logging.766 The government responded, and tried to reinforce its negotiating position, by letting the SILNA landowners know that it would strictly enforce new regulations blocking exports of unsustainably harvested indigenous timber against them.767 The affected landowners simply stockpiled their clear-felled timber as conservation organisations pressed the government to save the forests. Then on 8 March 1996, the Crown and the Waitutu Incorporation reached an agreement under s 77 of the Reserves Act 1977 to halt all logging in the Waitutu Block.768 The owners agreed that the land would be managed by the Department of Conservation as a national park. The terms of settlement were that the Waitutu Incorporation would continue to own the land, but would give up cutting rights to the forest in return for cash compensation of NZ$13.55 million.
The settlement was drawn up in a deed of covenant and implemented in the Waitutu Block Settlement Act 1997. This act provides that the National Parks Act of 1980 applies to the Waitutu block as if it was a national park, subject to the provisions of the deed of covenant. Specifically, it states that ‘nothing in [the National Parks Act] limits or affects the rights’ of the owners in clause 3 of the deed769 (these include rights to erect accommodations, take ‘traditional foods’, take ‘traditional vegetative material for customary medicinal use’, erect smoking racks for eels, and enter the land at any time) and that the powers conferred by the National Parks Act on the Minister, Director-General or Department of Conservation must not be ‘exercised in a manner that is contrary to or inconsistent with the deed of covenant’.770 The deed itself further provides that neither party may remove indigenous plants, trees or animals from the land, and that the public is to have access to the land except for purposes consistent with the National Parks Act.771
Section 6 gives a right of ‘first refusal’to the Crown if the Incorporation decides to sell or lease the land, and requires the Incorporation to secure the ‘binding agreement of the other party to the transaction [for any sale or lease] that the other party will comply with the deed of covenant’. Upon sale or lease of the land, the National Park Act continues to apply.772 Under ss 8 and 9, the Minister must ‘consult with and have regard to the views of’ the Incorporation when exercising powers under the National Parks Act, and in making conservation strategies and plans that ‘affect or relate to’ the land. Disputes between the parties are to go to an ‘agreed party for decision’ and thereafter to arbitration, and both parties are able to ‘institute proceedings to enforce compliance’ with the deed.773
Meanwhile, negotiations on other SILNA blocks stalled again, even though the landowners scored a significant victory in 1996 when one of the milling companies holding SILNA forest cutting rights successfully challenged the new customs regulations that were being used to prevent exports of unsustainably harvested indigenous timber. The regulations were held to be repugnant to the exemption of SILNA land under the Forests Act (and therefore to be contrary to the Bill of Rights 1688), and to have been made for improper purpose(s) including enhancing the Crown's position in its negotiations with the landowners.774
In July 1999, the government announced that it would introduce a Forests Amendment bill to remove the exemption for SILNA land from the sustainable forests management regime, and that meanwhile it was prepared to compensate SILNA owners willing to enter into a voluntary moratorium on logging. Those owners prepared to join the moratorium would win priority in negotiations for conservation or sustainable management.
On 9 October 1999, negotiations with the owners of two of the Lords River blocks in Tutae-Ka-Wetoweto forest culminated with a Deed of Settlement and Deed of Covenant, again made under the Reserves Act, s 77 and again implemented in special legislation, being the Tutae-Ka-Wetoweto Forest Act 2001. Under this deed, as under the Waitutu deed, the land in the Lords River blocks was to remain in the hands of its SILNA owners, the Rakiura Maori Land Trust. This time, however, the landowners would also retain ownership of the forest ‘with full rights of ownership, possession and use of the Forest’.775 The landowners agreed to manage the land as if it were a national park in exchange for compensation of NZ$10.9 million.
Under the Tutae-Ka-Wetoweto Forests Act, Rakiura Maori must manage the forest ‘in accordance’ with the deed of covenant,776 and with the terms of the management plan that Rakiura must prepare thereunder.777 The conservation management objectives of the covenant are set out in cl 3 of the deed include preserving the natural environment, providing for public access, and for Rakiura to continue to exercise their Maori customary rights ‘in respect of the indigenous vegetation and the land generally’. Clause 4 sets out some specific restrictions, responsibilities, and powers of Rakiura, including a ban on the removal of any tree, a requirement that the public be permitted to walk on the blocks free of charge, and an authorisation enabling closures of (parts of) the block for ‘cultural purposes’. Clause 8 provides that if Rakiura sell or lease (any part of) the blocks, they must first obtain the agreement of any purchaser or lessee to comply with the covenant. If Rakiura fails to do so, it ‘shall continue to be liable in damages for any breach ... committed after it has parted with all interest in the ... sections in respect [of] which such breach has occurred’. Disputes between the parties to the covenant must fall to resolution by negotiation, formal mediation and, subsequently, arbitration.778
Since the Tutae-Ka-Wetoweto Forests Act was enacted, the government has moved away from its policy of negotiation for compensation and, in 2001, the Environment Court held that, despite the existence of the SILNA exemption in the Forests Act effectively enabling the SILNA landowners to unsustainably harvest and mill and/or export indigenous timber, local authorities can control and constrain the removal of indigenous vegetation from SILNA land under the Resource Management Act 1991. The court found that the power of the local authority to make such rules under the 1991 act was not impliedly repealed pro tanto by the enactment of the Forests Act exemption in 1993.779 In 2004, Parliament removed the SILNA exemption from the Forests Act, and now the only option remaining for SILNA landowners seeking some remedy for lost cutting rights is to negotiate a conservation covenant under the Nature Heritage Fund. Nature Heritage Fund (the Fund is run by the Department of Conservation and is funded by Parliament) payments ‘are calculated on a much lower value that the commercial value of the timber, unlike the Waitutu and Rakiura settlements’.780
The process of moving New Zealand's indigenous forests from exploitation to conservation or sustainable management has not been smooth sailing. In particular, there have been difficulties in ending clear-felling on SILNA land. The Waitutu and Tutae-Ka-Wetoweto settlements represent significant achievements in context. Each settlement was individually negotiated, although the latter clearly emulates and builds on the former. Each settlement was given the status of law by an Act of Parliament. Both have resulted in important indigenous forests being protected in perpetuity as national parks. Both have retained Maori land in Maori hands, although the Tutae-Ka-Wetoweto Act also retains Rakiura Maori as the managers of the land (whereas under the Waitutu settlement, the Department of Conservation manages the land) and as owners of the forest itself. This seems better to reflect their status as kaitiaki (guardians) and tangata whenua (the people who belong to this land) of the Lords River blocks.
There is some criticism of the use of the Reserves Act 1977, s 77 as the authority for the two covenants. The argument is simply that a better-tailored alternative exists in the Reserves Act, s 77A which enables the Minister to enter into a Nga Whenua Rahui kawenata (which translates loosely as ‘our land protection coventant’) with the owners of any Maori land in order to preserve and protect either its ‘natural environment, landscape amenity, wildlife or freshwater-life or marine-life habitat, or historical value’ or the ‘spiritual and cultural values which Maori associate with the land’. It is clear, however, that this option was not used because while, like the conservation covenants under s 77, Nga Whenua Rahui kawenata can be in perpetuity, they may only be so subject to a condition that ‘at agreed intervals of not less than 25 years, the parties ... shall review the objectives, conditions, and continuance’ of the kawenata.781 The Crown wished to see the forests protected in perpetuity, but the opt-out option for kawenata as preferred by the landowners could actually enable a more durable settlement.782
The grievances of the SILNA landowners are long standing, and attach to historic and further alleged breaches of the principles of the Treaty of Waitangi, as well as to the ‘hoax’ perpetrated by the land grants effected under the SILNA. The Waitutu Block Settlement and Tutae-Ka-Wetoweto Forest Acts are the legal embodiment of one possible response to those grievances. They represent a solid compromise between conservation interests and the rights and interests of the landowners. The only problem is that they only cover some of the forests, and only compensate some of the landowners for what they have lost in terms of their ability to support and maintain themselves in the transition from exploitation to conservation and sustainable management of indigenous forests in New Zealand.
740 Nicola R Wheen, BA, LLB (Hons), LLM, is a senior lecturer, Faculty of Law, University of Otago, Dunedin, New Zealand. Nicola.email@example.com
741 This is Kawharu's ‘attempt at [an English] reconstruction of the literal translation’ of the Maori text (Kawharu, I.H. ‘Translation of Maori text’ in Kawharu, I.H. (ed) Waitangi – Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press: Auckland, 1989) p. 320. It is proper to prefer the Maori text for all sorts of reasons: there is only one Maori version ‘and this is the one signed by all but a small minority’ (Kawharu, ibid); such an approach is also consistent with the contra proferentem rule, see the Waitangi Tribunal's Orakei Report (1987) chapter 11.
742 McPhail, D. Constraints and Opportunities for South Island Landless Natives Act (SILNA) 1906 Indigenous Forest Utilisation (Paper No 3 from the research programme UoCX0004 Sustainability on Maori-owned Indigenous Forest, School of Forestry, University of Canterbury, Christchurch, 2002) p. 5.
743 The one-thousandth reference comes from ‘The Ngai Tahu claim – the Treaty in practice’, available at www.nzhistory.net.nz/politics/treaty/the-treaty-in-practice/ngai-tahu, (Ministry for Culture and Heritage), updated 18 Apr 2007, ( accessed 28 January 2008).
744 Hereafter ‘SILNA’; the Act was repealed by the Maori Land Act 1909.
745 This purpose ‘emerges’ from ss 2 and 3 of the Act, per Wild, J., in Alan Johnston Sawmilling Ltd v Governor-General (1999) 1 New Zealand Customs Cases (NZCC) 61,129, pp. 61,137.
746 This is the description given by the Waitangi Tribunal to the SILNA land grants some 85 years later. The Tribunal was established in 1975 to investigate claims of prejudice to Maori caused by Crown action that is inconsistent with the ‘principles’ of the Treaty of Waitangi, see Treaty of Waitangi Act 1975, s 6. SILNA issues in fact formed one of the ancillary aspects to the huge Ngai Tahu claim, which was reported on in Waitangi Tribunal, Ngai Tahu Report (1991), and which formed the basis for the Ngai Tahu settlement with the Crown (subsequently given legislative effect in the Ngai Tahu Claims Settlement Act 1998).
747 McPhail, supra note 742, p. 8.
748 According to the Ministry for the Environment's report The State of New Zealand's Environment (Ministry for the Environment. Wellington, 1997), p. 27, forest cover has been reduced from about 85 percent to about 23 percent of New Zealand's landmass since people arrived here.
749 McPhail explains the economic rationale behind the preference for clear-felling (supra note 742, p. 35).
750 Alan Johnston Sawmilling case, supra note 745, pp. 61,132.
751 ‘The Accord [was] not a legally binding document and there [were] major disputes over its interpretation’ (Bellingham, M. ‘Protection of Land, Plants and Animals’, in Milne, C.D.A. (ed.) Handbook of Environmental Law (Royal Forest and Bird Protection Society. Wellington, 1992), p. 225.
752 See the Forests (West Coast Accord) Act 2000. Sawmillers who had contracts with state-owned enterprise Timberlands (the organisation that managed production in the affected forests) were badly affected by the decision, but were unable to obtain any remedy, see Wheen N. R. ‘Desperate Remedies and the West Coast Sawmillers’ New Zealand Universities Law Review, Vol. 19, 2001, pp. 351–365; Wheen, N.R. ‘Fairness and Indigenous Forests Law in New Zealand’ Asia Pacific Journal of Environmental Law, Vol. 7, 2002, pp. 7–24.
753 Development of the policy by the Lange-led Labour Government culminated with Cabinet's adoption of a directive for the sustainable management for all indigenous forests on 20 June 1990. These events, and the various regulatory measures taken under customs legislation to give effect to the policy, are described in Alan Johnston Sawmilling case, supra note 745.
754 Sustainable forest management is defined as meaning ‘the management of an area of indigenous forest land in a way that maintains the ability of the forest growing on that land to continue to provide a full range of products and amenities in perpetuity while retaining the forest’s natural values' (Forests Act 1949, s 2).
755 Forests Act 1949, ss 67C and 67D respectively.
756 Forests Act 1949, s 67A(1)(b)(i), repealed in 2004 (see text to follow).
757 New Zealand Parliamentary Debates (1993) 13940, per Hon Denis Marshall.
758 Farming was not an option (see previous text) and the land was/is almost inalienable (see the SILNA, ss 9 and 10 (now repealed)). The land now falls under Te Ture Whenua Maori Act 1993, s129, which provides comprehensive restrictions on the alienation of Maori land. Ownership of the SILNA block has now descended bilaterally from the original grantees to the extent that approximately 25,000 people have an interest in some 57,513 hectares of existing SILNA land. Establishing who these people are is not easy: most SILNA land has never been occupied and the owners are scattered throughout New Zealand.
759 Alan Johnston case, supra note 745, p. 141.
760 See Devoe, N. ‘Seeing the Forest for the Trees: The Future of the SILNA Lands’ (seminar presented at He Minenga Whakatu Hua o Te Ao, 27 August 2000, Murihiku Marae, www.otago.ac.nz/titi/hui/Main/Home.htm, (accessed 15 March 2008), quoting one of the landowners (John Sutherwood), who said: ‘When they were valueless to the Crown, there was no restriction on the use of SILNA land; indeed the express intention was that they be cleared. Now that the owners could realise some benefit from these lands, the Crown proposes to take away what it gave in 1906, lands that were ours to begin with’.
761 Schmidt, S. and Swenson, K. ‘Waitutu – The Ultimate Forest Protected at Last’, Forest and Bird , No 280, May 1996, p. 27.
762 Ibid., p. 31.
763 Ibid., p. 28.
764 Ell, G., ‘Stewart Island/Rakiura National Park Proposal Advanced’ Forest and Bird , No 296, May 2000, p. 7.
765 McPhail, supra note 742, p. 15.
766 Ibid., p. 15.
767 The regulations prohibited exports of indigenous timber unless it was harvested in accordance with the Forests Act's sustainable management regime, or unless the Minister gave consent. The Minister then approved conditions for routine approval: being that the timber was harvested from an area managed under an approved sustainable management permit and was surplus to domestic requirements. In the Alan Johnston case, supra note 745, p. 61, 141 – 61,144, Wild J. held that the government had promulgated the regulations for one or more of the purpose(s) (‘remote and unconnected with the proper purposes of [the] customs and excise legislation’ pursuant to which the regulations had purportedly been promulgated) of promoting sustainable management and seeking to improve its negotiating position vis a vis the landowners.
768 The Reserves Act 1977, s 77 enables the Minister of Conservation ‘if satisfied that any private land ... should be managed so as to preserve the natural environment, or landscape amenity, or wildlife or freshwater-life or marine-life habitat, or historical value, and that the particular purpose of purposes can be achieved without acquiring ownership of the land ... may treat and agree with the owner ... for a covenant to provide for the management of that land in a manner that will achieve the particular purpose or purposes of conservation’”.
769 Section 5(2)(a); the Deed is reproduced as the Second Schedule to the Act.
770 Section 5(3).
771 Clauses 12 and 13.
772 Section 6(7).
773 Clauses 29 and 33.
774 The regulations, and the Minister's policy on implementing them, are described in note 28 above. Wild J. reasoned that in so far as the regulations applied to indigenous timber harvested from SILNA land, they effectively removed or defeated the exemption by denying unsustainably harvested timber access to the international market. Thus they offended the Bill of Rights 1688, s 1 (which ‘prevent[s] the Executive ... suspending the operation or benefit of laws passed by the Parliament of New Zealand’) (Alan Johnston case, supra note 745, pp. 61,139 – 161,140). Wild J.’s improper purpose/irrelevant considerations findings are described in note 767 above.
775 Preamble to the Tutae-Ka-Wetoweto Forest Act 2001, para (3).
776 The Deed is set out in the Second Schedule to the Act.
777 Clause 6, which also provides that the plan must implement the objectives in cl 3 and give effect to cl 4.
778 Clause 13.
779 Minister of Conservation v Southland District Council, unreported, Environment Court, Auckland, A39/2001, 29 April 2001.
780 As expressed by the Waitangi Tribunal in its summary on the Waimumu Trust (SILNA) Report (2005), see the Tribunal's website at www.waitangitribunal.govt.nz/reports/summary.asp?reportid=e00a5a61-1ce0-476f-80ac-69a4911a6e2a, (accessed 5 March 2008). The Report considers the Waimumu Trust's claim that the 2004 amendment to the Forests Act removing the SILNA exemption was a breach of the principles of the Treaty of Waitangi. The Tribunal found breaches in the government's approach to SILNA lands since the Rakiura settlement, but no real prejudice as the Trust had not yet pursued the Nature Heritage Fund option. The reason for the disparity in the value of payments is that the fund provides compensation for costs only.
781 Section 77A(1)(b).
782 At some point in the future, the compensation sums paid for lost cutting rights could seem trivial in terms of the value of the forests to the nation. Allowing for renegotiation of conditions and so on would enable a settlement to endure in the face of such changing conditions.
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