KEY POINTS:
In the late 1980s Maori had quite a big win in the Court of Appeal. At least, they thought they did.
The Maori Council had taken on the Crown in the era of privatisation.
The Government had been transferring huge amounts of land into the new fledgling State Owned Enterprises. Private companies like Landcorp. In effect, they were privatising land.
Maori, under the leadership of Sir Graham Latimer, slapped what was virtually an injunction on the Government. It is referred to now as the famous Lands Case.
At issue was disputed ancestral land which Maori feared could be sold and lost to them before their Treaty of Waitangi claims were settled.
Maori first headed to the High Court. Then QC David Baragwanath argued that any such transfer would put a further hurdle in the way of Maori seeking the return of land.
Not only would Maori have to get a favourable recommendation from the Waitangi Tribunal - but the Government might lack the political will to allocate the money to buy land back at market value.
The High Court halted the land transfers and the case went to the Court of Appeal. The outcome was hailed as landmark.
The five Court of Appeal judges ordered the Crown to prepare a scheme to safeguard Maori land claims threatened by transfers of assets to SOEs.
The then Court of Appeal president, Sir Robin Cooke, said it should "never again be possible to put aside a Maori grievance in that way". And so, following delicate and not so delicate talks between the Crown and Maori, a protection mechanism was put into law.
Known as 27B memorials, all Crown land under transfer was to be protected with a notation on the title.
While this meant the land could be sold into private ownership, it also meant Maori could go to the Waitangi Tribunal to get a binding recommendation that properties protected by the memorial be returned.
It was then up to the Crown to buy back the land for the tribe, regardless of the price or whether it had passed into private hands.
It was partly a "buyer beware" warning. Thousands of Crown and privately owned properties have 27B memorials on them.
Yet, 20 years after the historic ruling, only one recommendation, involving Turangi properties, has ever been made. The Waitangi Tribunal would not say why no others have been made.
But it is why, say Maori in the Far North and the Coromandel, that last month they moved on to land on Landcorp farms being sold from under them, before their treaty claims have been settled. The land carries the 27B memorials but Maori claimants and their lawyers say the historic protection has proved ineffective.
Just as they did in the 1980s, Maori fear if the land is sold to private owners it will be developed and will never come back.
There are three ongoing occupations of Landcorp land. One is Ngati Kahu in the Far North and another is Hauraki on Coromandel Peninsula. The other is an occupation of Taurewa Farm in the central North Island by various claimant groups.
In a twist last week, under heavy pressure from Maori, the Government halted the Landcorp sales for a month, announcing it would review the SOE's land sales processes.
Iwi occupying land heaved a sigh of relief. But they have not moved off the land. Significant distrust still exists.
One of their key questions is whether the review will cover the 27B memorial process.
This week a spokeswoman for the Minister of State Owned Enterprises, Trevor Mallard, said he could not comment on anything to do with Treaty settlements and was vague about the terms of reference for the review.
But yesterday Mallard released a statement widening the scope , saying there would also be a review of the disposal of land held not just by State Owned Enterprises, but also Crown entities and Government departments.
The Prime Minister and Cabinet would co-ordinate the reviews with the involvement of Treasury, Land Information New Zealand, Te Puni Kokiri and others as appropriate.
No mention was made of the 27B mechanism. Mallard late yesterday said it was not a focus of the review.
The 27B memorials were carefully worked out in the late 1980s and are said to be a powerful tool to protect Maori interests. So why haven't they worked?
Sir Geoffrey Palmer, deputy Prime Minister in 1987 and now the president of the Law Commission, is puzzled.
While not familiar with everything that has happened over the past 20 years, he maintains the scheme was negotiated in great detail, with Maori, to enable the SOE policy to work.
The aim was "to protect Maori rights in land and to ensure that the treaty rights couldn't be ignored and, of course, that is legally effective when it passes through on to a title like that. It should still be efficient."
Sir Graham Latimer, however, says when support was given back in 1987 for the 27B memorials, it was on condition that everything went according to the letter. "But things didn't go according to the letter."
It is vital the 27B memorials process be scrutinised in the Government review, he says. "It's time for us to look at the 27Bs and ask if they are doing us a service. And the answer's no."
The Government's review needed to be transparent - "tell the world", Sir Graham says, "or are they too ashamed to tell the world?"
Sir Graham knows, though, that reviewing 27Bs could cause a huge argument because of all the properties which have been sold and are now under private title.
"And even now when we talk about it, you know, I can almost see the wrath of the people around Coopers Beach [a fast developing beachside resort area in the Far North] ... we're going to cause a row here we're not going to be able to handle."
Maori understood the Government could buy back properties with 27Bs on them. "When will it start?"
Lawyers say there is no reason the memorials should not work to protect disputed land. At Kensington Swan in Wellington a team of high-powered lawyers handle treaty issues for various Maori claimants.
Deborah Edmunds is a partner at the firm and the managing partner for the Maori and Treaty Team. She was also involved in the transfer of land when the SOEs were set up.
She explains that all land transferred to SOEs was subject to the protection, so when a treaty claim was well-founded the Waitangi Tribunal could make a recommendation the land be given back.
The process was that a provisional recommendation would be made. The Crown and claimants would have 90 days to negotiate and if unresolved the recommendation would become binding - and the Crown legally obliged to return the land.
This has only happened on one occasion. It was as a result of a provisional recommendation followed by a binding recommendation consented to by the Crown in respect of some sections in Turangi township.
Asked if the 27Bs were useless, she said: "Well, in short, yes. We have, right before the tribunal at the moment ...
"I think it's about three or four applications for remedies hearings and those applications actually ask for binding recommendations."
The applications were nearly all over a year old but the Tribunal had yet to call a judicial conference for the claimants to argue for a hearing date.
When asked why the Tribunal has not made more binding recommendations over the years, she replies: "Well that's a very, very good question. I think claimants feel that this is their one strong lever against the Crown and yet it has proved immensely difficult for them to get the tribunal to take on this role they have, which could be extremely powerful."
One of the difficulties, she says, is that when claimants are in negotiations with the Crown they are not allowed to go to the Tribunal.
But the 27B protection mechanism was only available to them if they went to the Tribunal. "So if you're in negotiation you cannot actually exercise this process to get land back."
Edmunds says the 27Bs relate to every piece of property transferred from the Crown to SOEs after 1986.
"And I personally managed a lot of those transfers, I would say probably 10,000 properties, and they vary from very extensive estates of hundreds or even thousands of hectares down to small sections in towns scattered around New Zealand."
Many are now on land held in private title but once land has gone into private title, politically it is unacceptable for the Crown to acquire it back. In other words, there would be a huge stink from private owners.
Margaret Mutu, head negotiator for Ngati Kahu, says the Government needs to get it out of their heads that money can settle claims. It can't.
"It's land. That's the fundamental. Essentially what you're seeing is the Government trying to sidestep the Lands Case."
Raewyn Clark, another solicitor with Kensington Swan, who has been involved in the Taurewa farm case, points out another problem. "We understand it's an internal policy of Landcorp's that before they will offer the land for sale they will first offer it to the Office of Treaty Settlements to see if they wish to landbank it.
Where it has all broken down from a Maori claimant point of view, she says, is that OTS never accepted the properties for their land bank, even though they were offered them by Landcorp.
Internal OTS memos indicate that the general policy is that lands with 27B memorials are considered to have the same protection that the land bank would offer. "Of course, it doesn't. We think there are large flaws in that policy as to when they will and when they won't landbank it."
Richard Boast from the law firm, who is also an associate professor of Law at Victoria University, says the 27B system was certainly not set up to fail. It was a well intentioned and well crafted settlement option at the time.
But he, too, says it is not working.
He says developers often seek legal advice as to whether they should be concerned about the memorials.
"I think the standard legal advice is pretty much ... don't worry about it."
Once a block is subdivided into homes with million dollar views the value of just four or five might make up an entire settlement offer.
The land is effectively out of reach.
The issue has been simmering for years but has come to prominence now because suddenly it became apparent to claimants, who were in the middle of negotiations, that Landcorp properties were being sold off.
The settlement asset base is diminishing - the very land Maori were engaged in talks about.
Deborah Edmunds says it is clear there has been a major disposal of Landcorp land going on.
"All of a sudden there appears to be five or six on the market and I would be very interested to know ... it would be very interesting to see the Cabinet decisions, or [those] from the shareholding ministers, as to why Landcorp is now having a major disposal programme."
Trevor Mallard's office told Review this week that Landcorp had not been in close consultation with him, that the company operates independently and does not go to its shareholding ministers - the ministers of State Owned Enterprise and Finance - every time it makes a decision.
However, Landcorp's annual report for 2006 states its strategic direction is in accord with the Government's policy.
The report talks about increasing profit, saying the bottom line profit - $28.5m, up from $10.1m - result included substantial gains from the sale of land and other assets.
It also talks about disposal of land that has higher value to other owners, but points out it faces restrictions on the use or disposal of some properties because of their potential role in future Treaty of Waitangi claim settlements.
"Landcorp has clear commercial imperatives but, at the same time, must heed broad Treaty-related considerations and this tension may further develop," it says.
The lawyers won't be drawn over whether the whole mess has been a cynical revenue gathering attempt by the Crown at the expense of Maori. But Richard Boast says there has been a detectable shift in the Government's stance towards settling issues with Maori.
"I mean, they're more prone, more likely to take a, what shall I say, a tougher or more belligerent line.
"Just look at the Foreshore and Seabed Act ... you'd hardly call that a consultative initiative, and I mean, maybe there's some kind of thinking going on, 'Well, we tried that and got away with that so let's see what else we can do.' "
But perhaps they weren't expecting the occupations.
The lawyers say Mallard's review must look at whether the 27Bs system is working for claimant groups, in the good faith spirit of 1987 Appeal Court case. More than that, they would like to see a review of the Treaty settlement policy, saying 27Bs are only one of numerous problems.
And Boast says Maori have options, one of which may be to return to the Court of Appeal.
At the end of the historic 1987 decision a paragraph reads "purely as a precaution, in case anything unforseen should arise, leave to apply is reserved". It would seem the door to return to court was left open.
Says Boast: "The ineffectiveness of the 27B memorial process can certainly be said to be 'something unforseen'.
What is more, the whole rhetoric of the decision revolves around concepts of 'the utmost good faith'. "
