Treaty of Waitangi Fisheries Commission v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 17 6 /97 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN TREATY OF WAITANGI FISHERIES COMMISSION Appellant (Appeal No. DCA 34/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 31st day of July 1997 APPEARANCES M K Mahuika for appellant S R Condie and A D Barnett for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns the fixing of a premium rate under the Accident Rehabilitation And Compensation Insurance (Employment Premiums) Regulations 1994. The Employment Premiums Regulations concern the rates of premium payable in respect of earnings for the purpose of funding the Employer's Account created under Part VII of the Accident Rehabilitation and Compensation Insurance Act 1992. The schedule of the regulations contains a list of classification units and rates of premium The classification units are risk-weighted on the basis of functions which are ancillary or subservient to the activity comprising that classification unit. - 2- On 6 April 1995 the Corporation advised the appellant that under the new system of premium classification the appellant was to be classified "Central Government Administration - 81110". The classification related to the premium year ended 31 March 1995, for which the premium was due on 31 May 1995. The appellant applied for a review of that decision on 5 July 1995. In a review decision of 13 December 1995 the Review Officer confirmed the classification decision and the appellant lodged an appeal. The appellant considered that the appropriate classification was "Business Services (not elsewhere classified) - 78690". The rate of premiums in the schedule to the regulations was $1.65 per $100 of earnings in respect of Central Government Administration 81110, and $1.04 in respect of Business Services 78690. The respondent's submissions in support of the Central Government Administration classification may be shortly summarised as follows: 1. The appellant is a statutory body constituted under s 4 Maori Fisheries Act 1989 as amended by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Its primary functions are described in s 5 of the Maori Fisheries Act as follows: Principal functions - The principal functions of the Commission shall be - (a) To facilitate the entry of Maori into, and the development by Maori of, the business and activity of fishing: (b) To grant assistance to any Maori or group of Maori for the purpose of enabling that Maori or group of Maori to enter into or to continue in or to develop the business and activity of fishing: (c) To form, pursuant to section 12 of this Act, a public company to be called Aotearoa Fisheries Limited: (d) To hold all the shares in Aotearoa Fisheries Limited: (e) Subject to section 43(3) of this Act, to transfer to Aotearoa Fisheries Limited at least 50 percent of all quota and all money transferred or paid to the Commission by the Crown under any of the provisions of sections 40 to 42 of this Act (which quota and money shall be applied in paying up in full shares of Aotearoa Fisheries Limited to be issued and allotted and distributed to the Commission). Additional functions as set out in s 6 of the Maori Fisheries Act: Additional functions - Without limiting the generality of section 5 of this Act, the Commission shall have the following particular functions: (a) To lend money, with or without security and on such terms and conditions as the Commission thinks fit: (b) To provide such advisory and technical services as the Commission considers desirable or expedient in the interests of Maori fishing: (c) To conduct and encourage research into matters affecting Maori fishing: (d) To participate and assist in the promotion, reorganisation, or rationalisation of Maori fishing with a view to increasing efficiency and productivity: - 3 - (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 IA to this Act: (ii) To develop, after full consultation with Maori, proposals for a new Maori Fisheries Act that is consistent with the Deed of Settlement and makes provision for - (A) The appointment, composition, and powers of any body succeeding the Commission; and (B) The development of a procedure for identifying the beneficiaries and their interests under the Deed of Settlement, in accordance with the Treaty of Waitangi, and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement: (iii) Within 90 days after the commencement of this paragraph, to propose for consideration by Maori provisions and a process for the Commission's accountability to Maori: (iv) To report to the Minister on the matters referred to in this paragraph. 2. The respondent submits that the Fisheries Commission has the function of implementing Government policy. It is not free to act outside the purposes of the Maori Fisheries Act or the functions ascribed to the Commission. Those functions reflect implementation of Government policy in maintaining and strengthening the Maori fisheries industry. The respondent submits that the activity may be characterised as the rendering of a service to Government, that service being the implementation, management and administration of Government policy. 3. It is submitted that where the Commission engages in other activities, for example business activities or consultation with Maori, those are ancillary to its core statutory functions. The work of the Commission is best characterised in terms of a core statutory function being the administration of Government policy rather than in terms of ancillary activities. 4. An important function of the Commission is specified in s 6(e) of the Maori Fisheries Act. That section refers to developing proposals for a new Maori Fisheries Act and in s 6(e)(iv) to report to the Minister. Those functions are directed towards assisting Government with the preparation of legislation and they are a function of administration of Government policy. The provisions indicate a clear wish from the Government to receive specialist expert policy advice from the Commission. As a specialist body dealing exclusively with the issue of Maori fisheries, and as a representative of Maori, its views on the matters listed in s 6(e) will carry a great deal of weight with the Government when it comes to address those matters. The respondent also directs submissions concerning the alternative classifications claimed by the appellant. First, it is appropriate to turn to the matters advanced by the appellant in support of the appeal. - 4- The appellant submits that it is necessary to approach the questions from a historical perspective in order to correctly understand the purposes and functions of the Commission. The purposes and functions are then able to be derived from the Maori Fisheries Act and the Deed of Settlement of 23rd September 1992 which is referred to in s 6 of the Act. Evidence of the historical background of the Treaty of Waitangi Fisheries Commission was placed before the Court in the form of extracts from Parliamentary Debates on the passage of the Maori Fisheries Act 1989 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, and by way of the brochure issued by the Treaty of Waitangi Fisheries Commission describing its own purposes and functions. In the Muriwhenua judgment of October 1987 the High Court granted an injunction preventing the inclusion of species in the quota management system on the basis that the full exclusive and undisturbed fishing rights belonging to Maori in those species would be lost to them. Drawn out negotiations between the Maori parties and the Crown finally resulted in the Maori Fisheries Bill, proposing 50% of the in-shore ITQ to Maori over a period of 20 years. The Maori parties objected to parts of the Bill and to the Crown interpretation that Maori must "substantially fish" the quota. The Bill was effectively withdrawn in the parliamentary process and a virtually new Bill, even more opposed by Maori, appeared. Further negotiations produced an interim settlement for 10% of all quota currently in the Quota Management System to be given to Iwi over four years along with a payment of $10 million. The Bill proceeded through Parliament despite further Maori objections, and a re- written version became law in 1989. The Maori parties had already returned to the High Court for a definition of the "nature and extent" of the Maori fishing right, in two cases, Ngai Tahu and Muriwhenua. The main hearings were to start in early 1991 but were adjourned when the Crown and Maori arranged to step back from the litigation and give the Act a chance to work. The Maori Fisheries Commission was set up as the body through which the Crown could deliver quota to Maori. The Maori Fisheries Commission was to hold the quota initially on behalf of Maori while at the same time developing an allocation scheme for its permanent handover to Maori. After the commencement of the 1989 Act the Crown began the gradual transfer of 10% of quota species to the Commission which started work on developing options for a permanent allocation system in conjunction with Iwi. The process was based on extensive consultation. The Commission acquired Moana Pacific Limited. The assets acquired by the Commission prior to the 1992 Act comprise about 10% of all quota species, plus cash transferred from the Crown and shares in Moana Pacific Fisheries, along with income generated from those assets. Those assets are referred to as the pre-settlement assets. The Commission is entitled to allocate the assets as it sees fit. On 23rd September 1992, the historical Deed of Settlement was signed in which the Crown agreed to fund Maori into a 50/50 joint venture with Brierley Investments Limited to bid for Sealord Products Lid, New Zealand's biggest fishing company, holding 27% by volume of the New Zealand quota resource. In return, Maori agreed that all their current and future claims in respect of commercial fishing rights were fully satisfied and discharged. The $350 million purchase of a half share of Sealord gave Maori control of roughly a third of the New Zealand fishing quota. In addition, the Deed of Settlement promised Maori 20% of quota for all species not yet in the quota management system. The Sealord purchase was enshrined in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The Act made other changes in recognition of the larger and more complex workload now facing commissioners. The Commission was renamed the Treaty of Waitangi Fisheries Commission (the Maori title selected by the Commission was Te Ohu Kai Moana) with wider ranging powers, an increased membership of thirteen commissioners, and a requirement that it be clearly accountable to Maori as well as to the Crown. It is the requirement of being accountable to the Crown that is part of the basis of the respondent's claim for classification in the same way as Central Government Administration. The Act provided for two separate processes, one for distribution of assets already held, that is the pre-settlement assets or PRESA, and a second for new assets acquired under the full and final settlement, referred to as post-settlement assets or POSA. The Commission's brochure Te Ohu Kai Moana sets out the purposes of the Commission as follows: "TOKM's role By law, TOKM is charged with helping Maori to get into, and develop "the business and activity of fishing". In practical terms, its responsibilities include: Allocation of assets Its main task is the development of a method for allocation of assets to Iwi, according to the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act, and the Deed of Settlement. Leasing quota Until an allocation scheme is in place, TOKM is responsible for organising annual lease rounds, to make quota available to Iwi through a leasing process. It leases to Iwi organisations at a rate calculated below the market rates - underlining the objective of encouraging Maori into the business and activity of fishing. The discount lease scheme has been extremely effective in assisting Maori to get into, or further develop, fishing operations. New Legislation TOKM is responsible for ensuring the widest possible Iwi representation into the legislative process, particularly in relation to amendments to the Fisheries Act, Customary Fisheries regulations and eventually the new Maori Fisheries Act. TOKM, in conjunction with the industry, made major submissions to the review of the Fisheries Act and succeeded in getting significant amendments to draft legislation, including the dropping of a Crown proposal for resource rentals. From the outset Maori negotiators had rejected, on Treaty grounds, the concept of resource rentals on ITQ. They had always accepted, however, the concept of "user pays" - that it was reasonable to expect the industry to carry the cost of its own regulation. The attitude towards resource rentals and the nature of the - 6- ownership of the resource continues to be a source of fundamental philosophical conflict between Maori and the Crown. TOKM has a major role to play in the development of the new Maori Fisheries Act. This is the Act which will set out how post-settlement assets are to be distributed, on the basis of proposals developed by TOKM after full consultation with Maori. The new Maori Fisheries Act will also set out requirements for the appointment, composition and powers of any body succeeding TOKM. TOKM is also taking a lead in the development of regulations protecting customary fishing rights, as provided for in the Treaty of Waitangi (Fisheries Claims) Settlement Act. TOKM has issued a discussion booklet, Mahinga Kaimoana Tuturu, and organised a series of regional hui to discuss the nature and extent of customary and traditional fishing rights. TOKM also convened a series of hui to work out Maori representation on the Crown/Maori working party set up to develop regulations. Maori representation is through a two-tier structure known as Paepae/Taumata 1 and Paepae/Taumata 2. The four Paepae/Taumata 2 members sit on the working party and reports back to Paepae/Taumata 1, who represent whanau, hapu and Iwi. The first draft of regulations is expected to be completed before the end of 1995. Input into fisheries policy and management Issues TOKM has significant input into overall fisheries policy and management, largely through the Maori representatives who now sit on the Fishing Industry Board and its Sub-committees. Provision for Maori representation on all statutory fishing bodies was included in the Treaty of Waitangi (Fisheries Claims) Settlement Act. TOKM was closely involved in the restructuring which split the fisheries arm from MAF into a separate ministry and moved fisheries research into the National Institute of Water and Atmospheric Research. Training and development TOKM has put in place a $5 million training and development strategy aimed at ensuring Maori have the skills to match their fisheries assets. The strategy includes a scholarship programme under which hundreds of Maori receive assistance to enrol in courses, in New Zealand and overseas, relevant to the fishing industry. Another innovation is an Iwi Management Course run jointly by Te Wananga O Raukawa and Waikato University aimed at ensuring that Maori have the necessary business management skills to reach the highest levels of fisheries operations. A course has also been developed with the Aoraki polytechnic, Timaru, which has successfully trained Maori students in practical skills resulting in a virtual full placement of trainees within the fishing industry." The Commission's description of its purposes and functions is consistent with the Deed of Settlement and Maori Fisheries Act 1989. The following is extracted from s 3 of the Deed: 'SECTION 3: OBLIGATIONS OF THE CROWN 3.1 Settlement Amount 3. 1.1 Payable by Three Instalments The Crown shall pay to Maori the Settlement Amount in three instalments as follows: - 7. 3.1.1.1 one third on the Settlement Date; 3.1.1.2 one third on the Second Instalment Payment Date; and 3. 1.1.3 the remaining one third on the Third Instalment Payment Date. 3. 1.2 Deferment of Second and Third Instalments The Crown shall be entitled to defer either of the payments due on the Second and Third Instalment Payment Dates, as the case may be, if at either of such dates Maori is in default in the performance or observance of any of the agreements on the part of Maori herein contained (excluding the agreements referred to in clauses 4.2, 4.3 and 4.4) until such time as any such default has been remedied to the satisfaction of the Crown. 3.1.3 Use of Settlement Amount 3. 1.3.1 Maori agrees that the Settlement Amount is to be used solely for the development and involvement of Maori in the New Zealand fishing industry 3.1.3.2 It is acknowledged by the Crown that the application of the Settlement Amount in or towards the acquisition by Maori through the Maori/BIL Joint Venture of a 50% interest in Sealords is a proper use of the Settlement Amount for the purposes of clause 3.1.3.1. 3.1.4 Recipient of Settlement Amount The Crown shall pay the three instalments of the Settlement Amount to the Maori Fisheries Commission and the receipt of the secretary or other proper officer of the Commission shall be a sufficient receipt for such payments." The obligations referred to in cl 3.1.2 concern Maori endorsement of the Qulota Management System, discontinuance of Court proceedings against the Crown and support for amending legislation. The obligations are consistent with the Commission representing Maori rather than representing the Crown. Further obligations of the Crown are described in the Deed. The Crown agrees to ensure that Maori will participate in the Fisheries Statutory Bodies so as to reflect the special relationship between the Crown and Maori. For that purpose the Crown will introduce legislation requiring Maori participation. In a clause of the Deed relating to membership of Treaty of Waitangi Fisheries Commission the following is stated: "3.4.3 The Treaty of Waitangi Fisheries Commission will be accountable to Maori as well as to the Crown in order that Maori are to have better control of their fisheries guaranteed by the Treaty of Waitangi." The respondent rests a substantial part of its argument on the fact that the Commission is accountable to the Crown and that its activities reflect the implementation of Government policy. The appellant submits that the main purpose of the Commission is to allocate assets to Maori and that its responsibility to the Crown is consonant only with the wish of the Crown to ensure that the purpose of the Deed of Settlement is achieved. Because neither the Commission nor any other entity can discharge the Crown from performance of its obligations under the Treaty of Waitangi, the final method of allocation must accomplished by legislation. The appellant submits that the allocating legislation will be a vehicle to give effect to the wishes of Maori established by the Commission in consultation with Iwi. To a large extent, Government will stand aside to allow formulation of the method of disposition of assets so that the allocation proposals will be made through a Maori consultative process. Once that is done, Government will provide the legislation. Meanwhile, it is necessary for Government to maintain some control on the process. That control is achieved through the mechanism of the Commission reporting to the Minister. No doubt, if the Commission misconducted itself or became unable to settle a process of allocation, the Government would again be required to exercise its responsibility to the Maori people. Otherwise, it appears to be possible that the whole process could be resolved by the Commission, leaving the Government only to enact the legislation to give effect to the process of allocation decided in consultation between the Commission and Iwi. The appellant refers to that part of the Deed which concerns distribution of benefits to Maori. It states as follows: "4.5 Distribution of Benefits to Maori 4.51 Maori agrees that the settlement evidenced by this Settlement Deed of all the 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. 4.5.3 The Treaty of Waitangi Fisheries Commission is to develop, after full consultation with Maori, the proposals of Maori for a new Maori Fisheries Act that is consistent with this Settlement Deed, and shall report to the Crown within ninety (90) days of the date of this Settlement Deed with a request that it be enacted as soon as practicable having regard to commercial considerations. Any tribe with a beneficial interest may request that the Crown recommend to Parliament that the resulting Bill be referred to the Waitangi Tribunal under Section 8 of the Treaty of Waitangi Act and the Crown shall recommend it be referred accordingly. The final decision on the form of any Bill to be introduced shall be that of the Crown. 4.5.4 Such proposals referred to in clause 4.5.3 are to include: 4.5.4.1 The appointment, composition and powers of any body succeeding to the Treaty of Waitangi Maori Fisheries Commission; and 4.5.4.2 Development of a procedure for identification of beneficiaries and their interests in accordance with the Treaty of Waitangi and a procedure for allocation of benefits of this Settlement Deed to them in accordance with the principles of the Treaty of Waitangi. Such proposals for distribution of settlement benefits will address the questions set out in Annexure A and will include a procedure for Maori affected, to be heard on benefit issues. 4.5.5 Maori agrees that it will before the expiration of the period referred to in clause 4.5.3 provide to the Crown a scheme for the distribution of the benefits of this Settlement Deed to Maori in terms of clause 4.5.4.2 and which satisfies the Crown that all persons who may have rights and interests extinguished by or in consequence of this Settlement Deed will be fairly treated. 4.5.6 The Crown agrees that, until such time as a scheme of distribution which satisfies the Crown has been provided by Maori in accordance with clause 4.5.5 - 9 - and clause 4.5.4.2, the Crown will not introduce legislation conferring any power to distribute to Maori any assets or benefits of either this Settlement Deed or of the Maori Fisheries Act. 4.5.7 All parties acknowledge the Treaty of Waitangi Fisheries Commission receives and holds the settlement benefits on behalf of Maori and for their benefit. 4.6 Treaty of Waitangi Settlement Fund Maori recognise that the Crown has fiscal constraints and that this settlement will necessarily restrict the Crown's ability to meet from any fund which the Crown establishes as part of the Crown's overall settlement framework, the settlement of other claims arising from the Treaty of Waitangi." The appellant makes a number of submissions in support of the appeal. They may be summarised briefly in the following way: 1. The Commission holds assets on behalf of Maori and representing Maori interests in respect of those assets. While not a trustee in a strict sense, the Commission acts in a capacity similar to trustees and have analogous obligations; Hauraki Maori Trust Board v Waitangi Tribunal High Court Wellington CP 171/95, 31 July 1995 per Ellis J at page 39. 2. As well as a fiduciary function, the Commission has a representative function. Thereby it has a significant input into overall fisheries policy and management, largely through the Maori representatives who now sit on the Fishing Industry Board and its sub-committees. The representative function is further reflected in parts of the Fisheries Act 1983 where the Minister of Fisheries is specifically required to consult with the Commission (as representing the interests of Maori in the fishing industry) when setting or varying the total allowable commercial catch for quota species. 3. The Commission considers that its main task is to allocate the pre-settlement assets and to develop the framework for allocation of the post-settlement assets. The reason for the two classes of assets held by the Commission are explained earlier in this judgment in relation to the historical background and the reasons for enactment of the 1989 and 1992 statutes. 4. The Commission continues to hold its assets on behalf of Maori and it administers the assets for the purposes of assisting Maori into the business and activity of fishing, and maintaining or enhancing the value of the assets for the ultimate benefit of Maori. In the course of those activities the Commission has invested assets in additional quota and in a number of further commercial fisheries businesses. Those include Pacific Marine Farms Limited (oyster farming), Hygrade Seafoods (1996) Limited (rock lobster), Prepared Foods Limited (paua) and Chathams Processing Limited (rock lobster). The Commission also leases quota annually to Maori at a discount as a means of assisting Maori into the business and activity of fishing. Other quota is leased at commercial rates to allow the Commission to generate a pool of funds with which to undertake further quota purchases. - 10 - 5. The Commission acknowledges that, in varying respects, it is said to be accountable to the Crown as well as to Maori (see Te Runanga o Muriwhenua v Te Runanga o Te Upoko o Te Ika Association Incorporated [1996] 3 NZLR 10, at 16 (CA)). However, the nature of the Commission's activities as set out in the 1989 Act, the Settlement Act, and the Deed, means that in reality it acts exclusively for Maori, both in managing and administering its assets and representing Maori interests on fisheries issues. This is the focus (and therefore the nature) of its activities. 6. The allocation of the pre-settlement assets and development of proposals for a new Maori Fisheries Act, could be said to be Central Government type activities. However, given the background to the creation of the Commission and the overall nature of its operations those activities are better construed as part of the Commission's trustee-type role in the administration of its assets on behalf of Maori, particularly as these activities effectively involve a determination of the entitlements of those who occupy a position analogous to beneficiaries in respect of the Commission's assets. It now becomes necessary to consider the basis of classification under the Employment Premiums Regulations. The parties accepted that the classifications contained in the regulations are based on the Australian and New Zealand Standard Industrial Classifications. The regulations do not contain any reference to those standard classifications. They are used by the Corporation, but the Court has not heard argument on whether they may be taken into account in interpretation of the schedule of the regulations. The appeal was argued on the basis that they may be referred to for the purpose of interpretation. Classification 81110 of the Standard Industrial Classifications is as follows: Central Government Administration This class consists of units mainly engaged in formulating and administering Central Government policy (except justice and defence) Exclusions / References Units mainly engaged in (a) the management of commercial and business activities, or activities other than government administration, are included in classes appropriate to these activities; and (b) the operation or administration of judicial authorities or commissions are included in Class 8120 Justice. Note: Units of the defence forces and of government mainly engaged in defence administration are included in Class 8200 Defence. Primary Activities Central Government administration (except Legislation enactment and enforcement justice and defence) (Central Government) Financial and economic management except Parliament, Central, operation banking (Central Government) Policy formulation and administration Governor-General's unit operation (Central Government) The respondent places emphasis on the fact that the appellant renders a service in the provision of policy advice to Government, relying particularly on s 6 of the Maori Fisheries Act 1989 and the requirements for the appellant to report to the Minister, and also its role of having significant input into overall Fisheries policy. The - 11 - respondent then refers to Regulation 4(2) of the Employment Premiums Regulations which states: 2) Where an employer is engaged in two or more classification units and does not maintain records as specified in paragraphs (a) and (b) of subclause 1 of this regulation, all employees shall be classified in the classification unit for which the highest rate of premium is prescribed by these regulations. The respondent then does not require to deal with ancillary activities. Its argument rests on the submission that if the appellant is engaged in business or fiduciary activities, it nevertheless is also engaged in activities described in the Central Government Administration classification. The appellant submits that it is not involved in Central Government administration, the administration of its assets being administration for Maori rather than Central Government. It is not engaged in enactment of legislation, it is a creature of statute and legislation will be provided in order to accomplish its purposes in due course. The remaining activities do not seem to be applicable in any sense except perhaps policy formulation and administration (Central Government). The appellant's argument is that Central Government policy as it stood in September 1992 has been formulated and effected by the present legislation and the Deed of Settlement. The policy in the legislation relates to obligations of Central Government to the Maori people and the wish of Central Government to obtain a discharge of its obligations under the Treaty of Waitangi in respect of fishing. The appellant submits that the Crown does not necessarily have to make any further policy decisions. The policy with which the Commission is concerned is the development of a consensus within Maoridom. It is more aptly described as Maori policy rather than Central Government policy. The appellant associates that with the Commission's fiduciary role. The appellant finds support for its argument in other legislation, in particular the omission of the Commission from Part 2 of the First Schedule to the Ombudsman Act 1975, and the First Schedule of the Official Information Act 1928. It is submitted that the omissions imply that the Commission is not considered to be part of the Executive Government of New Zealand, and so it is not subject to the information requests or complaints procedures ordinarily available to the public in respect of government. Furthermore, the Commission is not a Crown entity as defined in the Public Finance Act 1989 which concerns the law governing the use of public monies and the financial reporting obligations of the Crown, Crown departments and Crown entities. The Commission is not funded at all by Government Vote but generates the funding for its activities through the assets it holds on behalf of Maori. The appellant submits that in fact it engages in the activity and classification 75190 Services to Finance and Investment which is defined in the Standard Industrial Classifications as follows: Services to Finance and Investment n.e.c. This class consists of units mainly engaged in providing nominee, trustee, investment management or advisory services, or other services in the field of finance or investment (except insurance or superannuateon). Also included in this class are units of incorporated stock exchanges. - 12 - Primary Activities Credit card administration service Portfolio. investment, management service Executor Service (on a commission or fee basis) Finance consultant service Security valuation service Finance service n.e.c. Share registry operation Financial asset investment consultant Stock exchange operation service Fund raising (on a commission or fee Terminating building society management basis) n.e.c. service (on a commission or fee basis Money changing service (nonbank) Trustee service Nominee service There are only two other classification groups which have been mentioned in argument. The appellant submitted that part of its activities were encompassed by classification 78540 Business Administrative Services, and classification 78550 Business Management Services. On closer examination, those classifications appear to relate to the provision of services to third parties. The appellant has some functions of that kind but they are of no particular consequence. The appellant places particular emphasis on the trustee and advisory service elements of classification 75190 because it holds its assets for Maori rather than for Government or for the purpose of producing profit, and it uses or invests its assets for the benefit of Maori. The Commission does not have any beneficial interest in the assets or in profits derived from the assets. The argument of the respondent in reply is that the Commission acts as a conduit. It must have a mandate from Central Government for allocation of its funds and the Crown has the final say. To that end, the Commission is required to provide repeated reports to the Minister and effectively it is an agent of the Crown. The point at the centre of this appeal concerns the difficult distinction between the Commission's agency role and its fiduciary role. The key to the distinction, in my view, is to be found in the fact that the Commission has the settled assets vested in it. It receives no annual government funding and is not accountable to Government for any of the profits from its activities. Nor is it apparently accountable to Government for the manner in which it manages its assets from year to year except for the provision to report to the Minister. The purpose of that provision is recognisably by the need for Government to retain some residual responsibility in case the Commission fails or is unable to carry out its responsibilities to Maori. I am satisfied that its activities that are closest to the Central Government Administration category are only those concerning its fiduciary duty to the Maori people and its role as a representative of Maori in providing advice and administration to Government in the same way as any entity representing a major commercial interest. In that way it is similar to a producer board or an association representing an industrial group. Its function is different because of the unique concept of a partnership and mutual responsibilities embodied in the Treaty of Waitangi. There is a question whether the Commission's function of advising Government in relation to proposed regulation of non-commercial fishery is an activity of Central Government Policy. It is not an activity that is dealt with in the Maori Fisheries Act. It is referred to in the brochure of Te Ohu Kai Moana to the extent that the Commission has convened a series of hui to work out Maori representation to the Crown/Maori working party set up to develop regulations. In the Deed of Settlement - 13 - cl 3.5.1.1. refers to an agreement by the Crown to amend the Fisheries Act to empower the making of regulations recognising and providing for customary (non- commercial) food gathering and the special relationship between tangata whenua and those places which are of customary food gathering importance. Clause 5.2 states that non-commercial fishing rights may be the subject of requests by Maori to the Government or initiatives by Government in consultation with Maori to develop policies to help recognise use and management practices of Maori in the exercise of their traditional right. None of that makes the Commission an arbiter of Government policy. Its plays a very important role, and possibly a decisive role, in formulation of the policy that Maori wish the Government to adopt, but the Commission still appears to stand in the position of a representative body rather than a policy-making body. I find that none of the different functions of the Commission has as its primary activity any of the primary activities specified in classification 81110. The closest might be the function in s 6(e)(ii) of the Maori Fisheries Act of developing proposals for a new Maori Fisheries Act consistent with the Deed of Settlement. That must involve advice to Government to assist in formulating Government policy. It does not mean that the Commission will formulate Government policy, but it will represent a Maori solution. In that respect its role is that of an interest group rather than a body charged with evaluation of competing interests in order to reach a policy consonant with good Government. In the exercise of sovreignty, Government may accept or reject part of the advice of the Commission when formulating its policy. It is for Government to decide whether maori interest should prevail over other interests. While the Commission is a key player its role is that of an advocate for Maori rather than an author of national policy. I find that the function of the Commission is not Central Government Administration. It does carry out trustee investment and management activities classified under Services to Finance and Investment classification 75190 but it also carries out other activities of a different kind. Those other activities, including consultation amongst Maori to achieve a formula for allocation of assets and representations to the Crown for enactment of legislation are central functions of the Commission. The respondent has not recommended any classification for those activities other than Central Government Administration. I find that reg 5 can not apply to the appellant because there is no separate classification for those of its activities that are not encompassed in classification 75190. The appellant is therefore entitled to that classification. The appeal is allowed. The appellant will have costs of $1000. DATED at WELLINGTON this 26th day of August 1997 D A Ongley District Court Judge