Maori artefact ‘in a legal swamp’

Press, 11 March 1983, Page 4

Maori artefact ‘in a legal swamp’

NZPA London A Maori artifact which had been taken from a New Zealand swamp was now in a legal swamp, Lord Scarman said at a House of Lords appeal hearing yester- day. Lord" Scarman is one of five law lords hearing an appeal over the ownership of a carved Maori pataka, which was bought by a Bolivian tin magnate, George Ortiz, after it had been smuggled into the United States. The New Zealand Government is trying to get it back after stopping its sale at Sotheby’s. After hearing argument by counsel for the last three days, the law lords are now considering the first of two questions they have to decide. The first is whether its ownership was vested in the New Zealand Govern- ment. If the law lords decide it was, they will recall counsel to hear arguments on the second question. This is whether English courts had the authority to determine ownership subsequent to the New Zealand Government stopping the auction of the pataka in London by a court injunction. If, however, they decide that New Zealand has no automatic legal entitlement to the pataka, it will then remain the property of Mr Ortiz. The argument on the first question has involved a detailed examination of the relevant New Zealand law governing historic articles and the exporting of goods from the country. The argument has hinged on the words, “shall be forfeited,” at the beginning of the Historic Articles Act, 1962, which the Government

claims has been directly breached in this case, and which gives it the authority to claim the pataka back. Counsel for both sides agreed there were ambiguities in the wording of the act. “When you consider the rival explanations of what the draughtsman was doing each of them can be shown to not resolve the ambiguities,,” Mr Andrew Morritt, Q.C., counsel for the New Zealand Attorney-General said. “You are then required to consider the purpose and when one does that I suggest you have to consider the history.” This history, the protection of Maori antiquities within New Zealand and failing that, if they had already left New Zealand, was to provide the “framework to get them back,” he told the Court.

“The object or purpose (of the Historic Articles Act 1962) is to get the article back and that can only be done if the title is in the Crown before it ultimately

leaves New Zealand.” Mr Morritt said. Earlier, counsel for the second respondent, Sotheby’s, the auctioneers where the pataka is still being housed pending the outcome of the legal proceedings, Mr C. Ross-Munro, Q.C., had told the law lords they were entitled to form their own opinion on what foreign laws meant. “In considering a question of foreign law, the House of Lords is entitled to form its own view of the effect of a foreign statute or decree,” he said. “it will of course put considerable attention in the opinion of experts and or the findings of fact by a foreign tribunal, but it is not bound by either." What the law lords have to decide is now a question of interpretation of the New Zealand statute. Lord Scarman commented: “This particular article, having been removed from a natural swamp is now in a legal swamp.”