1998-1999 Maori L. Rev. 1 (1998-1999)

handle is hein.journals/maori1998 and id is 1 raw text is: February 1998
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Privy Council appeals from Maori Appellate
Court decisions                            1
Challenge to tribunal appointment-apparent bias 2
Environment court-s8 & consultation with Maori 4
Fisheries (Customary Fishing Conditions)
Notice 1988                                5
Maori land-economics and law analysis      5
Common law aboriginal title-Canadian Supreme
court-the Delgamuukw decision              6

Tom Bennion
PO Box 11 310
Wellington, New Zealand
Phone (04) 473 5755
Fax (04)473 5755
Email bennion@actrix.gen.nz
Kirsty GoverJanine Ford
Esoteric Publications
PO Box 11310
Wellington. New Zealand

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 CopyrightTom Bennion 1998
This issue may be cited as:
Maori LR Feb 1998
ISSN 1172-8434

Privy Council Appeals.
Does the ability to appeal Maori Appellate Court decisions
to the Privy Council still exist? The question has gained
prominence recently because of the government decision
to appeal the preliminary decision of the Maori Land
Court about ownership of the Malborough foreshore and
seabed (Mdori LR Dec 97/Jan 98 p4) to the Maori Appellate
Court. Depending on the decision of the appellate court,
one or both sides may wish to take the matter on to the
Privy Council.
The ability to appeal to the Privy Council does not lie
in legislation. In Re the Will ofWi Matua [1908] AC 448,
the Privy Council determined that, while the Native
Land Court Act 1894 provided that decisions of the then
Native Appellate Court were to be final and conclusive,
this did not rule out a petition to the Crown for leave to
appeal to the Privy Council. This was because such a
prerogative of the Crown could not be taken away except
by express words in legislation.
However, in a recent decision of the Privy Council (De
Morgan v DG ofSocial Welfare. 7 October 1997. [1997] 3
NZLR 385. Lord Browne-Wilkinson, Lord Jauncey of
Tullichettle, Lord Slynn of Hadley, Lord Lloyd of Ber-
wick, Lord Steyn.), their lordships reviewed the case law
in this area and held that Wi Matua had been wrongly
decided. When that case was heard, it had been over-
looked that the right to petition the Crown for leave to
appeal to the Privy Council was no longer purely a pre-
rogative matter, but was regulated by 2 statutes-the Ju-
dicial Committee Acts of 1833 and 1844. Consequently,
if a New Zealand statute limits avenues of appeal to the
Privy Council, it-is not limiting a prerogative power,
rather, it is limiting a statutory right of appeal with a
purely formal prerogative element attached to it. Con-
sequently, a New Zealand statute can limit this avenue
of appeal simply by words which by necessary
intendment do away with or limit such an appeal.
The 1894 Act provided that decisions of the Native Ap-
pellate Court were to be final and conclusive. This
would be sufficient to fulfil the test of necessary
intendment. However, there is no equivalent provision
in Te Ture Whenua Maori Act 1993. The 1894 provision
was repealed in 1909 and never reinstated-possibly as a
result of the Wi Matua decision.
However, section 59(5) Te Ture Whenua Maori Act 1993
provides that where the Maori Land Court makes a
provisional or preliminary determination in the course

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