Patricia Monture

It was with great sadness that I learned of the passing of the Mohawk legal scholar and activist Patricia Monture.  Patricia died last month after several years battling breast cancer.  She was 52 years old.  My thoughts are with her family and those that were close to her.  They must bear the loss of a mother, sister, aunt, and friend.  As this obituary in the Globe and Mail makes clear, the Indigenous world has also lost a champion. Ka hinga te tōtara o te wao nui a Tāne.

I never met Patricia in person but I have been greatly inspired by her work and, in particular, her commitment to achieving justice for her people.  One of the aspects of her work that I most admire is her ability and determination to articulate a perspective of law that overtly acknowledges, and is built upon, her personal experiences and cultural grounding as a Kanien’kehaka (Mohawk) woman.  Such a perspective challenges us all to think critically about the way in which Indigenous communities and individuals experience law.  It demands that we consider the values that are embedded in law and the interests that law advances, as well as the values and interests it opposes.  As another Indigenous legal scholar has noted, her approach “lays bare the myth of objectivity wielded by . . . judges, those who work within systems built around such Western constructs as ‘rights’ and the ‘public/private divide’”.[1] Her book Journeying Forward: Dreaming First Nations’ Independence helped me to see ways in which Indigenous peoples’ accounts of law can be at once deeply personal and rigorously analytical. 

I also found Patricia’s tireless work for transformative change a real inspiration. Her experiences with the law suggested to her that reactively fighting oppression resulted in pouring energy into issues that were not constructed or framed by Indigenous people.  “Change” she wrote “will come not from institutions but from the people. . . Being self-determining is simply about the way you choose to live your life every day”.[2]  And she backed up her words with action.  She determined that Canadian law, as the key instrument of her people’s oppression, could not also be the source of their self-determination.  Though she saw her role as a teacher as central to the contribution she could make, she stepped away from the law school environment so as not to be complicit in the perpetuation of a system that oppressed Indigenous people.  Instead she chose to use her skills and her knowledge about law to encourage discussion about the ways in which Indigenous peoples can change the reality in which we live.  For me, her example provides a constant challenge to think critically, not just about law, but about my own actions and whether or not they are contributing to transformative change.   She was an example of a true warrior, in the sense that she herself described the term:

Warrior, in my mind, is not a man’s word.  It is not a fighting word.  It is not a war word.  Given what I have been told about many Indian languages, that you cannot use “he” or “she” in the same way that you do in the english language, I suspect that the word warrior is not a gender specific one at all.  Warrior is a ‘knowing your place in your community’, ‘caring to speak your truth’, ‘being able to share your gift’, ‘being proud of who you are’ word.  Warrior in the way I intend it, is not merely a resistance word.  The way I have come to understand the warrior is someone who is beyond resisting.  Survivors resist.  resistance is one of the many skills that a warrior might use.  It is not their only way.  Warriors also have a vision.  They dream for their people’s future.[3]

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[1] Gordon Christie "Indigenous Legal Theory" in B J Richardson, S Imai, and C K McNeil (eds) Indigenous Peoples and the Law (Hart, Oxford, 2009) 195 at 228.

[2] Patricia Monture-Angus Journeying Forward (Fernwood, Black Point, Nova Scotia, 1999) 159.

[3] Patricia Monture-Angus "Standing Against Canadian Law" (1998) 2 YB NZ Juris. 21 (1998) 7 at 21.

Wai 262: Te Reo Māori chapter

Last week the Waitangi Tribunal released a pre-publication chapter that will form a part of the much anticipated Wai 262 report.  Wai 262 (so called because it was the two hundred and sixty second claim to be registered with the Waitangi Tribunal) is sometimes referred to as the Indigenous Flora and Fauna claim, but may be better described as the ‘Traditional Knowledge’ claim as the inquiry encompasses issues around cultural intellectual property that run much wider than flora and fauna.  The Waitangi Tribunal produced a Statement of Issues for the final stages of the inquiry, which gives some indication of the breadth of the issues to be addressed.  The chapter that was released last week covers matters relating to te reo Māori, the Māori language.  The Tribunal had not intended to release pre-publication chapters for this report in the way that some of the recent historical inquiries have done.  However, the decision was taken to release this chapter in order to be able to feed into the review of the Māori language strategy and sector that was announced in July of this year.

There has been reasonably wide media coverage of aspects of the released chapter, particularly around the Tribunal’s findings about the precarious state of te reo.  The Tribunal identifies a number of indicators that suggest a recent decline in the health of te reo, which is certainly alarming and may come as a surprise to many.  The Tribunal recommends a number of measures be taken to halt and reverse this decline, including revitalizing Te Taura Whiri I te Reo Māori by providing it with the powers and resources necessary to lead the recovery of te reo.

Perhaps not so widely-reported is the Tribunal’s analysis of Treaty principles that underpins its findings and recommendations.  The Tribunal sets out the now undisputed status of te reo Māori as a taonga that attracts the protections guaranteed in Article Two of the Treaty of Waitangi.  In doing so, the Tribunal draws support from its 1986 Te Reo Māori Report, the 1993 decision of the Privy Council in the Broadcasting Assets case, and more recently, the recognition of language rights in the United Nations Declaration on the Rights of Indigenous Peoples.  Furthermore, because of its central role in the maintenance and development of Māori culture as a whole, the Tribunal found that “[t]he language is clearly a taonga of quite transcendent importance to Māori…”.  Distinctive tribal dialects also ought to be protected and nurtured as integral to the health of a diverse and dynamic Māori language.  The Crown will, therefore, need to adopt a variety of approaches in order to satisfy the particular preferences of different iwi. 

So the Crown has clear duties arising from the Treaty in relation to te reo, and what is more, the Tribunal notes, there are no real countervailing interests that impact on the Crown’s duty, except perhaps the limitations of financial cost.  In fact, interestingly, the Tribunal points out that it may be argued that all New Zealanders have a vested interest in ensuring the survival and growth of te reo because “te reo helps shape our collective identity”.  The Tribunal is, however, careful to point out that both Māori and the Crown have obligations to foster the growth of te reo.  Noting that the most successful language revitalization strategies in regards to te reo have been the initiatives of Māori communities themselves, the Tribunal’s recommendations aim to empower Māori to take a lead in the development of te reo strategy.  As part of the Treaty principle of partnership, Māori communities must have ownership of the issues surrounding the health of te reo and contribute the initiative, the ideas, and energetic leadership.  Māori must also take the primary responsibility for speaking Māori in the home, where it is neither possible nor appropriate for the government to give direction in these matters.  The Crown for its part must provide expertise and resources in support and ensure that arrangements for decision-making authority encourage and reflect Māori ownership of the issues.  The Crown also has obligations to provide “a Māori-speaking government”.  The Tribunal notes that not only would widespread use of te reo throughout the public sector send a strong message about the importance of te reo through leading by example, but also it would enable and encourage Māori speakers to engage with the state in te reo Māori for all official purposes.  Te reo Māori is, after all, one of our official languages.

The Tribunal notes, in its letter of transmittal to the Minister of Māori Affairs, that although the te reo chapter is being released ahead of the other parts of the Wai 262 report, the Tribunal is still of the view that the real value of the Wai 262 report will come when it can be considered as a whole.  The Tribunal itself has indicated that it is nearing completion of the entire report.  Many people, not least of all the parties involved, will be looking forward to the release of this major report.  If the chapter on te reo Māori is any indication, we can expect a number of significant and wide-ranging recommendations from the complete report.

Tauranga Moana: Report on the Post-Raupatu Claims

On 4 September, the Waitangi Tribunal released its report Tauranga Moana, 1886-2006: Report on the Post-Raupatu Claims.  This report addresses the second stage of the Tribunal’s inquiry into the Tauranga claims.  It follows the Tribunal’s 2004 report Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims.

The Report on the Post-Raupatu Claims details the significant land loss of Tauranga Māori that took place in the last decades of the nineteenth century, following the major confiscations.  The report also describes the various ways in which Crown actions continued to erode the land base of Tauranga Māori throughout the twentieth century.  

The Tribunal addresses a number of key areas of concern, which are closely associated with the loss of control over land and natural resources.

Land alienation

The Tribunal notes that policies such as those which sought to identify ‘idle’ Māori land that would be suitable for settlement by Pakeha and a range of public works takings resulted in a total loss of around 4960 acres (2008 ha) between 1886 and 2006.  The Tribunal found that the Crown had breached the Treaty principle of active protection by facilitating this alienation of land and failing to ensure that Tauranga Māori retained a sufficient land base for their foreseeable needs.  Furthermore, the inadequate efforts of the Crown to investigate grievances relating to land alienation breached the principle of good faith.  The Crown should also have ensured that compulsory acquisition of Māori land under the public works process was limited to truly exceptional circumstances.  Instead, compulsory acquisition was used for a wide range of purposes, often taking more land than was required for the purpose.

Land development constraints

The Tribunal also considered the Crown’s land development schemes between 1929 and 1975, which aimed to assist some Tauranga Māori to develop their land.  Though the Tribunal commends the intent behind these schemes, it found that, “these efforts did not, in the main, succeed in overcoming the competitive disadvantages faced by Māori land in multiple ownership”. Often, the owners of the land were excluded from meaningful involvement in the management of the land under these schemes and, in some cases were locked into long term arrangements which provided limited financial return.  Māori aspirations for land development have also been hampered by the failure to take into account the special characteristics of Māori land in rating and valuation processes and by the historical lack of opportunity for Māori political representation on local authorities. The report states that, in order to act consistently with Treaty principles, the Crown must now find a way to assist Tauranga Māori to maintain their current land base and to develop that land. 

Access to natural resources and environmental issues

Land loss also had an impact on the ability of Tauranga Māori to access other natural resources.  The traditional pattern of use-rights in the area, whereby each hapū would have access (and obligations of maintenance) in respect of both inland and coastal resources was constrained as European settlement placed pressure on easily farmable land.  Access to natural resources has also been affected by damage to the environment and degradation of ecosystems.  The draining of wetlands and deforestation were issues of particular significance for the way of life of Tauranga Māori.  The Tribunal notes that the Resource Management Act 1991 provides mechanisms for a more Treaty-consistent management of the local environment but points out that such mechanisms have not been effectively or fully utilised in practice and that more active Crown involvement is required to ensure the full potential of the Resource Management Act provisions are realised.

The Tribunal notes that there have been wide-ranging consequences of the Crown’s failure to meet the requirements of Treaty principles in these areas (and others, such as the maintenance of cultural heritage).  Of particular concern to the Tribunal is the general socioeconomic status of Tauranga Māori.  The Tribunal is careful to recognise that there are many factors which contribute to socioeconomic outcomes.  However, this report does find that past Crown policy and action, especially those policies and actions resulting in significant land loss, have contributed to the marginalisation of Tauranga Māori.  The Tribunal recommends that redress for Treaty breaches should therefore take into account the lost opportunity costs resulting from the economic marginalisation of Tauranga Māori and concludes:

Nothing less is due to the iwi and hapū of Tauranga Moana, if they are to climb back to a point of substantive equality from which they can exercise a real degree of tino rangatiratanga over their lives and resources, pursue their aspirations, and realise their full potential to contribute to the well-being of the region and the nation as a whole.

Marine and Coastal Area (Takutai Moana) Bill

The legislation to repeal and replace the Foreshore and Seabed Act is due to have its first reading this week.  The new Marine and Coastal Area (Takutai Moana) Bill will essentially give effect to the government’s preferred option for addressing foreshore and seabed issues, as signalled in the discussion document released at the end of March this year.

I have argued in previous posts that the recent proposals indicate that there has been no change in the Government’s attitude to Maori interests in the foreshore and seabed since the enactment of the Foreshore and Seabed Act.  Neither does this Bill indicate any such change.  Unfortunately, the Bill maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title.  Until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.

Moana Jackson has pointed out many of the discriminatory aspects of the Bill in his latest primer on the subject.  There are other, often connected, aspects of the Bill which appear to me to be extremely problematic. For example, I find it strange that the new, statutory, “customary marine title” only exists where a particular part of the foreshore and seabed has been exclusively used and occupied, and yet the title itself does not provide for such exclusive rights.  Surely, if the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title.  Alternatively, if exclusive use and occupation is not part of customary title, why would you need to prove exclusive use and occupation to have that title recognised?  If nothing else, this suggests that the legislative “customary marine title” is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.  The Foreshore and Seabed Act may have already taken us down that road, but this is another indication that the general direction of that Act is being maintained by the Marine and Coastal Area (Takutai Moana) Bill.

I am also pretty under-whelmed by the way that mana tuku iho has been recognised.  The explanatory note states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation.  This may be symbolically important, which is not to say that this inclusion in the purpose provision has no teeth whatsoever.  In any case, as I have previously suggested, even primarily symbolic changes may help to open up a more productive discussion of Maori interests in the foreshore and seabed, However, the fact that this reference is not supported by more specific provisions, laying out some of the practical effects of the recognition of mana tuku iho suggests that the Government is not yet ready to engage in that more productive discussion.

Latest installment of report on Te Urewera claims

Last week, the Waitangi Tribunal released part II of the pre-publication version of its report on Te Urewera claims.  The first five chapters of this report (as a pre-publication document) were released by the Tribunal in April 2009.  I have referred to some of the content of those first chapters earlier this year in a post relating to Tuhoe’s Treaty settlement negotiations.  The release of this second set of chapters is further illustration of the progress the Tribunal is making in working through historical claims in this type of large-scale district inquiry.  The chapters released last week address a range of significant events and Crown actions, either within or related to the Urewera district, which occurred between the 1860s and the 1950s.  Given the Waitangi Tribunal’s comments in the also recently released report on the Wairarapa ki Tararua claims about the potential of alternative forms of interaction between Māori and the Crown, I thought I would just draw attention to the Tribunal’s treatment of the Urewera District Native Reserve Act 1896.

The Urewera District Native Reserve Act was the result of a negotiated agreement reached between the Crown and Māori leaders of the Urewera region and was designed to recognise real powers of self-government to be exercised by the peoples of Te Urewera and, consequently, the Tribunal suggests that “the Act embodied an arrangement unique in our history”.

The Tribunal identifies the key provisions of the Act as addressing the following matters:

• Creation of a reserve – The Act set aside 650,000 acres for a reserve that was intended to protect both the natural beauty of Te Urewera and the way of life of the Māori communities in the district.  The land was to be reserved permanently for its Māori owners.  The reserve was exceptional because it would be controlled by the Māori owners through local committees. Each local committee would also elect a member to the General Committee, which was responsible for matters affecting the entire reserve.  The jurisdiction of the Native Reserves Act 1882 was excluded from Te Urewera (under that Act, native reserves were controlled by the Public Trustee). Broadly, land in the reserve was to be inalienable, though, with the consent of the General Committee, land could be alienated to the Crown, and there were also provisions for public works takings.
•   Title determination – In the discussions between Urewera representatives and the Crown that formed the basis of the Act it appeared that the Native Land Court would not be involved in the determination of land titles in Te Urewera.  Titles were to be determined through investigation by a committee of seven commissioners, five of whom, the legislation specified, were to be members of Tuhoe.  Though, in the form that the Act was finally passed, the Native Land Court was given a role in dealing with successions and appeals from the commission (if referred to it by the Minister of Native Affairs).
• Individualisation of title – The Waitangi Tribunal was presented with differing views as to whether or not the Act legislated for the individualisation of title in Te Urewera.  Legal historian Richard Boast considered that the effect was clear: “The Commissioners were being required to do no more or less than identify the rights of every single individual of Te Urewera, or, in other words, to completely individualise title to the entire region”.  Others suggested that the certificate of ownership conferred under the Act for the purposes of facilitating the election and running of local committees and that such certificates of ownership did not create individual rights of title in the same form as other native land legislation.  In any case, only the General Committee could alienate land, so, the Tribunal suggests, “the determination of relative interests for individuals did not put ownership of land at risk.”
• Self-government – Perhaps the most remarkable aspect of the Urewera District Native Reserve Act is its intention to give effect to tino rangatiratanga or mana motuhake.  Both Crown and claimant counsel before the Tribunal agreed that this was a clear objective of the Act.  The Premier at the time, Richard Seddon, is quoted in the Tribunal’s report: “I believe myself, that by leaving these people to manage their own affairs, seeing they are not interfered with and no Europeans are allowed in their midst, they can govern themselves in accordance with their own traditions, and are a people self-contained … I am satisfied that there are exceptional circumstances in connection with Tuhoe, and that those circumstances are favourable to the attempt being made, as provided in this Bill, to give them, in respect to the several matters mentioned in the Bill, self-government.” Unfortunately, the Act’s promise of self-government for the peoples of Te Urewera was never realized.
• Social assistance – The Tribunal also found that a package of social and economic assistance was part of the agreement between Urewera representatives and the Crown that underlay the Act.  Generally, this comprised commitments to deliver improvements in health, education, farming and other areas of life in Te Urewera.  There may have been some expectation that these matters would be addressed in the Urewera District Native Reserve Act, as part of the set of arrangements relating to land and governance in the district.  But no provision was made in the Act for this form of social and economic assistance, and it is arguable whether such assistance was provided through other mechanisms.

Despite the failure to realise the full potential of the Urewera District Native Reserve Act 1896, let alone the earlier agreements that lay behind it, this piece of legislation, along with the discussions that surrounded it, provides a valuable illustration of the creative ways in which issues relating to Māori self-government have previously been explored.

Wairarapa ki Tararua Report

Towards the end of June this year, the Waitangi Tribunal released its report on the Wairarapa ki Tararua claims.  The report addresses the historical claims that comprised the Tribunal’s inquiry into the Wairarapa ki Tararua district – an area that stretches from Norsewood, to Te Aho-a-Maui (Cape Turnagain) on the east coast, down to Kawakawa (Palliser Bay) southernmost part of the North Island.  This report, therefore, marks the conclusion of another of the Tribunal’s large-scale district inquiries into historical Treaty of Waitangi claims.

People who are familiar with previous Tribunal reports of this nature will have some sense of the dispossession experienced by Māori since the 19^th century.  As the Tribunal itself notes “Everywhere you go in New Zealand, the stories of the colonial encounter have much in common”.  Nevertheless, the details of these stories are particular to the communities involved.  The Tribunal identified a number of themes to the claims in this inquiry that were distinctive:

• “The leasing experiment” – the Tribunal noted the pattern of land-leasing that occurred in the 1840s and early 1850s.  In these arrangements, Māori communities would lease land to sheep farmers, with both parties able to generate reasonable returns.  Significantly, such arrangements did not, of course, entail the complete alienation of Māori land and the Tribunal suggests that this leasehold economy may have provided quite a different basis for colonial interaction had the Crown not intervened.
• “The komiti nui and what came after” – the komiti nui was a large meeting held in southern Wairarapa in 1853, which the Tribunal identified as pivotal in terms of Māori opinion of both the settler government and the benefits of land sales.  Governor George Grey and Crown land purchase agent Donald McLean both spoke at this meeting.  “They would use images such as a marriage between two peoples, painting a future together in which many good things would flow to Māori completely over and above the purchase price.” McLean subsequently purchased vast areas of land in the district, but the benefits to Māori, spoken of at the komiti nui, were never realised.
• “Wairarapa Moana” – under the relevant purchase deeds, Māori were to retain control over key waterways, Lake Wairarapa and Ōnoke, which included a significant eel fishery.  Māori leaders pursued virtually every means at their disposal to have their rights to these waters recognised, but were ultimately unsuccessful in this endeavour.  Instead, the Crown awarded them “30,000 pumiceous acres at Pouākani, hundreds of miles from home in another iwi’s rohe”.
• “The Kotahitanga movement” – Wairarapa chiefs played an influential role in the Kotahitanga movement in the late 19^th century, which aimed to develop policies related to Māori, and, in particular, the management of Māori land that engaged the settler state but was driven by Māori.
• “Te Tapere-nui-ā-Whātonga” – Te Tapere-nui-ā-Whātonga (Seventy Mile Bush) was, at one time, a body of incredibly dense lowland forest.  This area of forest was central to the lives of local Māori.  The government sponsored programme of clearing and felling in the latter part of the 19^th century soon transformed this forest.  The consequences were profound for Māori in the area, and even more so for the now extinct huia, whose habitat had been destroyed.
• “The speed of change” – the Tribunal notes that the speed of these changes in this district was dramatic: “…from the 1850s to 1860s, tangata whenua there went from being landlords who roamed at will through an expansive territory comprising coastal and inland domain to pleading with Government to fulfil promises of small reserves as settlers flooded in to take up all the land the Crown had just bought.”

The Tribunal’s findings and recommendations in relation to Crown actions and the principles of the Treaty of Waitangi are set out in full in Chapter 15 of the report, which is available here.  These include findings that:

• The Crown did not exercise in good faith its legal right to control all transactions in customary land between British subjects and Māori;
• Making leases illegal so that Māori had no alternatives to sale if they wanted the benefit of settlement was neither fair nor reasonable;
• …the Crown’s abandonment of good purchasing practice in the Wairarapa purchases…undermined the capacity of Māori to make informed community decisions.  This was a diminution of te tino rangatiratanga, and breached the Treaty.  The practices described, which were adopted by McLean and continued by his successors, were the antithesis of what was required – that is, a process that provided for free, willing, and informed consent, a fundamental requirement of article 2 of the Treaty…;
• …in failing to reserve adequate land for Māori, the Crown breached its duty actively to protect Māori interests.  Māori were prejudiced in that the Crown’s meagre provisions effectively precluded their engaging with the settler economy, except as wage labourers and subsistence farmers;
• …none of the education that the Crown provided met the needs of Māori children…This was a signal breach of promise, given the Crown’s reliances on promises of (inter alia) education as a means of persuading Wairarapa Māori to let the Crown purchase their land, and open up the district to settlement;
• [citing the Tribunal’s findings in the Central North Island inquiry] In failing to incorporate Kotahitanga into the machinery of the State, and share power with Māori in a meaningful way at the central level, the Crown acted in serious breach of the Treaty;
• In numerous ways, Māori property rights were overridden, disregarded, and dishonoured during the events that led to the transfer of ownership of Lakes Wairarapa and Ōnoke (and their surrounds) from tangata whenua to the Crown, and Wairarapa Māori subsequently taking ownership of land at Pouākani instead…the Crown’s conduct amounts to a grievous breach of its obligations to act towards its Treaty partner with the utmost good faith...;
• …the compulsory acquisition of Māori land for public works in Wairarapa ki Tararua breached article 2 of the Treaty of Waitangi.  No acquisitions in the district met the test of being required in circumstances where the national interest was at stake and where there were no other options.

Those are just some of the key findings of the Tribunal in this inquiry, but I would encourage anyone who is interested in these issues to take a look at the full report, which marks a further substantial contribution from the Waitangi Tribunal to the process of addressing breaches of the Treaty of Waitangi and moving towards reconciliation.

UN Special Rapporteur in NZ

James Anaya, the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People has been in New Zealand this past week and I thought it might be helpful to provide a little information about the role of the Special Rapporteur and the work of James Anaya.

The role and mandate of the Special Rapporteur is set by resolution of the United Nations Human Rights Council.  The Human Rights Council can set mandates for Special Rapporteurs, Working Groups, and Independent Experts across a range of different subject areas.  At present there are 31 of these subject-specific mandates including Special Rapporteurs on freedom of religion or belief, the right to food, and the promotion and protection of the right to freedom of opinion and expression.  The Human Rights Council may also set mandates to address situations in specific countries.  The mandate of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People was established in 2001 and extended by resolution of the Human Rights Council in 2007.  That resolution authorizes and requests the Special Rapporteur:

to examine ways and means of overcoming existing obstacles to the full and effective protection of the human rights and fundamental freedoms of indigenous people, in conformity with his/her mandate, and to identify, exchange and promote best practices;

to gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people and their communities and organizations, on alleged violations of their human rights and fundamental freedoms; and

to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations.

The extended resolution also requires the Special Rapporteur

to promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples, where appropriate.

James Anaya was appointed as Special Rapporteur in 2008.  As one might expect of someone in his position, he is an internationally renowned expert in human rights law and issues relating to Indigenous peoples.  He has worked as a law professor for over twenty years and is currently the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona.  He has written extensively on Indigenous peoples’ rights in international law, including authoring the definitive text on the subject. 

His work on the concept of self-determination – especially surrounding its development in the international law context and its relevance for Indigenous peoples today – has been hugely influential.  Anaya has argued Indigenous peoples’ engagement in international human rights fora, as entities that are ‘simultaneously distinct from, yet part of the social fabrics of the states in which they live’ has challenged the idea that the state is ‘the highest and most liberating form of human association’.  That leads to a model of self-determination that is not necessarily based around independent statehood, but is instead focused on developing modes of interaction that reflect Indigenous forms of authority as well as rights of participation in state processes.  A full list of Anaya’s academic publications is available here.

Anaya also has made a significant contribution to the recognition of Indigenous rights outside of his academic scholarship.  He was involved in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and has advised and represented numerous Indigenous groups. He was the lead counsel for the Indigenous parties in the case of Awas Tingni v. Nicaragua, in which the Inter-American Court of Human Rights in 2001, for the first time, upheld indigenous land rights as a matter of international law.

The Awas Tingni case has been extremely significant in terms of the recognition of Indigenous rights. It has been cited in various domestic and international cases including the October 2007 decision of the Supreme Court of Belize, which is well-known for also relying on the land rights provisions contained in the United Nations Declaration on the Rights of Indigenous Peoples which had been adopted by the UN General Assembly a matter of weeks before.

The Special Rapporteur plays an important role in the United Nations human rights system and Mr Anaya’s expertise and experience in this area means that he can make a valuable contribution to the discussion of Indigenous rights in the New Zealand context.

East Coast Settlement Report

The Waitangi Tribunal has released two significant reports within the last week.  First was the Tribunal’s report on the Treaty claims of iwi and hapū of the Wairarapa ki Tararua district.  This report is the culmination of a major district inquiry and was released on 26 June 2010.  I will write a post on that report in due course, but for the moment I would like to focus on the Tribunal’s East Coast Settlement Report, which was released yesterday. 

The East Coast Settlement Report is the latest in a series of reports which address aspects of the Treaty settlement process itself.  In fact, this report provides a helpful summary of previous Waitangi Tribunal comment on Crown settlement policy.  The report also addresses the recent Court of Appeal decision in Attorney-General v Te Kenehi Mair (which was the subject of a previous post on this site).

The East Coast Settlement Report relates to the settlement negotiations that are currently under way between the Crown and Te Runanga o Ngāti Porou.  A number of claimants who submitted claims for the Waitangi Tribunal’s East Coast district inquiry did not wish to enter direct negotiations with the Crown without first going through a full district inquiry.  Some of these claimants, who claim to represent the kin groups Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti ,sought recommendations from the Tribunal that the settlement between the Crown and Te Runanga o Ngāti Porou should be delayed.  They contended that the Runanga has no mandate to negotiate the settlement of their claims and that the Crown’s recognition of the Runanga’s mandate is contrary to the principles of the Treaty.  The Tribunal held an urgent hearing of these claims in December 2009 and has now reported its findings and recommendations in the East Coast Settlement Report.

The report identifies a number of aspects of the mandating process that might have been improved upon, although the Tribunal determined that any flaws in the process were not substantial enough to warrant delaying the settlement.  The Tribunal was mindful that such a delay would significantly prejudice those who support Te Runanga’s mandate.  Furthermore, the Tribunal noted that a full inquiry was unlikely to address the many of the issues at the heart of the claimants concerns, which were really issues between Māori groups, upon which the Waitangi Tribunal has historically been reluctant to comment.

However, the Tribunal did find a number of flaws in the Crown’s Treaty settlement policy and recommended a number of changes to that policy to ensure that the settlement process is fair and that settlement agreements are durable.

These recommended changes included the following:

• The Office of Treaty Settlements should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received in order to allow ample time for interested parties to voice their concerns and for the Crown to be made aware of potential issues at an early stage.

• The information provided as part of any mandating strategy must include: 
• the specific claims (Wai numbers) to be included in a proposed settlement; 
• a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis; 
• and the specific geographical area to be covered by a proposed settlement.

• The Office of Treaty Settlements should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, and should also assist any body that is mandated to negotiate the settlement of claims to communicate settlement milestones and developments with affected claimants.

• The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process in order to discharge its responsibilities towards claimants who may feel marginalised as a result of the process.

• In order to lessen the likelihood of claimants seeking assistance and protection through the Waitangi Tribunal’s urgent inquiry process, the Crown must recognise that it “has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process.”

• The Office of Treaty Settlements should “update its policy guide, Ka Tika a Muri, Ka Tika a Mua, to reflect changes that have arisen out of the recommendations of Waitangi Tribunal reports on mandating issues and Crown settlement policy in general.

Foreshore and Seabed: Can the symbolism of repeal lead to real change?

So, we now have agreement between the Māori Party and the National Party as to the broad shape of the regime that will replace the Foreshore and Seabed Act 2004.

The proposed regime is essentially the Government’s preferred option, which was flagged in its recent consultation document.  It is certainly welcome news to see progress being made on repealing the Foreshore and Seabed Act, though, as I noted in a previous post, some of the fundamental problems with that act remain in the proposed new regime.  The basic conceptual and practical subordination of Māori property rights still sits at the heart of the proposed regime. 

There are a couple of notable changes from the preferred option in the consultation document that are reflected in the agreement announced this week.  The ‘public domain’ concept will be called something else; and the proposed regime will also include universal recognition of a Māori group's continuing mana in respect of the foreshore and seabed.  It is not clear that either of these changes will have any immediate practical effect, but they are important nonetheless.  

I previously suggested that the change from Crown ownership to public domain was primarily symbolic, but that such a change was extremely important to remove the perception of a brazen confiscation of Māori property rights by the Crown.  Similarly, it will be important that in moving away from the language of ‘Crown ownership’, the new regime does not import, through the language of ‘the public domain’, connotations of terra nullius, the concept of ‘empty land’ that European colonisers used throughout the world to justify the taking of land from Indigenous peoples.  Specific rights and obligations exist and will continue to be exercised in relation to the foreshore and seabed and to mask that fact with the suggestion that it is owned by everybody and nobody is not helpful.

The ‘universal recognition’ of mana in relation to the foreshore and seabed may also appear to be largely symbolic, but I think represents a significant, though tentative, step forward in the way that this issue is conceptualised.  This recognition strikes me as hinting at a change in the parameters of the discussion of foreshore and seabed issues.  It suggests, albeit cautiously, that the rights, responsibilities, and relationships that iwi and hapū have with areas of the foreshore and seabed within their rohe is determined by tikanga Māori and continues to exist distinct from property rights defined by common law or legislation.  Now, this symbolic recognition is not supported in the government’s proposed regime by measures that would provide for its practical implementation, outside of an extension of participation in conservation processes.  However, it does, perhaps, open up the possibility of framing this issue differently.

As I noted in my earlier post, the proposed regime marks an improvement on the Foreshore and Seabed Act 2004, but it maintains a subordinate position for Māori rights and as such cannot hope to provide just or fair outcomes.  Although, it may be that some of the symbolic changes to the regime may open up the space for a longer, more productive, conversation about the expression of Māori rights and obligations in relation to the foreshore and seabed within a tikanga framework.

Haronga v Waitangi Tribunal (Court of Appeal)

Back in January, I wrote a brief post on the High Court decision Haronga v Waitangi Tribunal.  That decision has since been appealed and the Court of Appeal last month dismissed that appeal, confirming the decision of Justice Clifford in the High Court.

As I noted in my earlier post, the facts of the case are essentially as follows:

In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  Mr Haronga then applied to the High Court for judicial review of Judge Clark’s determination.  Justice Clifford heard the application in the High Court:

In his judgment, Justice Clifford dismissed the application for judicial review, finding that the Tribunal’s determination was lawful.  The Tribunal, when determining whether to grant a remedies hearing, is entitled to consider whether settlement negotiations are ongoing or stalled and whether or not a remedies hearing will assist with the resolution of the claim in question.  It was not unlawful for Judge Clark to consider these matters in this particular case.  Furthermore, it was found to be artificial to completely separate the remedies claim from the substantive claims in relation to the Mangatu forest and there was no evidence to indicate that the mandate in relation to the Mangatu forest claims had been withdrawn from the group within Te Manu Whiriwhiri that was proposing to settle those claims.

As noted above, the Court of Appeal has confirmed Justice Clifford’s decision.  It is, however, interesting to note the way that the Court has characterised the issues raised as being about more than simply the procedural processes that the Waitangi Tribunal utilises in order to manage its caseload.  Referring to the decision in Attorney-General v Mair, (on which I have also posted recently) the Court of Appeal is careful to note “it is unlikely that an appellate court will second-guess a tribunal’s decision as to its priorities”.  Nevertheless, the Court agreed with the appellant’s view that there are substantive issues involved that relate to the right of successful claimants to seek a particular form of remedy in a meaningful way.

While the Court accepted that “a blanket refusal to consider making resumption orders because broader settlement discussions are underway may be problematic.” and stated that “an inflexible “circuit breaker only” approach to the granting of remedies hearings may be objectionable”, ultimately, it was the Court’s view that this as not the approach that had been taken by Judge Clark in the Tribunal.  The Court of Appeal agreed with the decision of the High Court, which had found that Judge Clark had appropriately considered the particular merits of the application for an urgent remedies hearing and exercised his discretion to refuse such an application accordingly.

Waikato-Tainui Raupatu Claims (Waikato River) Act

Earlier this month, the Waikato-Tainui Raupatu Claims (Waikato River) Act was passed by Parliament.  This act implements aspects of the agreement between the Crown and Waikato-Tainui to settle claims in relation to the Waikato River, which were explicitly excluded from Waikato-Tainui’s earlier settlement.  ‘Co-management’ is a central theme of the legislation, which provides a number of significant mechanisms for the involvement of Waikato-Tainui in the management of the river.  

The central body in the new co-management arrangements established by the Act will be the Waikato River Authority.  The Authority is comprised of ten members – five members appointed by the Crown (including two members to be recommended by local government) and five members appointed by organizations representing iwi with interests in the river.  The Authority sets the primary direction of the management of the Waikato River.  This is affected through the Vision and Strategy for the Waikato River, which is set out in Schedule 2 of the Act and is to periodically reviewed by the Authority.  The Vision and Strategy are central to the new framework for the environmental management of the Waikato River.  Broadly, instruments that regulate the management of the river under the Resource Management Act 1991, such as regional policy statements, and regional and local plans must be made consistent with the Vision and Strategy.  Any changes to conservation management strategies and plans must be accompanied by a statement on how the Vision and Strategy has been given effect to.  The Act also lists a range of other situations in which the Vision and Strategy must be given particular regard.  The Vision and Strategy, therefore, are important instruments in relation to the management of the river, and the Waikato River Authority is the body responsible for reviewing the Vision and Strategy and recommending amendments.

The Authority has a range of other powers and functions, including providing advice to local and central government agencies and appointing members to sit on resource consent hearing committees, but the Authority also has an important role as trustee of the Waikato River Clean-Up Trust. The object of this trust is the restoration and protection of the health and wellbeing of the Waikato River for future generations.  Under the terms of the amended Deed of Settlement, the Crown will provide $21 million to the trust fund initially and then $7 million each year for 27 years.  This trust will therefore be a central player in the management of the river through its role of allocating funding for restoration projects.

There are a number of other significant co-management measures in this settlement, but the final instrument that I would like to address in this post is the Integrated River Management Plan.  The purpose of this plan is “to achieve an integrated approach between Waikato-Tainui, relevant departments, relevant local authorities, and appropriate agencies to the management of aquatic life, habitats, and natural resources within the Waikato River”.  This plan is to be prepared jointly by Waikato-Tainui and relevant government departments and must include a conservation component, a fisheries component, and a regional council component.  These various components feed into the particular planning processes that regulate each specific subject area.

Overall, this settlement represents significant potential for Waikato-Tainui to have genuine input into the management of the Waikato River.  The next challenge will be for all those involved to ensure that this potential is fully realized. 

Tuhoe Settlement Negotiations

A couple of weeks ago, TV3 News ran an item on Ngai Tuhoe’s Treaty of Waitangi settlement negotiations.  The item, in rather sensationalist style, stated:

The Government is on the verge of offering the Tuhoe tribe a treaty settlement that could be as groundbreaking as it is controversial. Tuhoe is hoping it will mean total control of the Urewera National Park, and start the tribe on the way to self-rule and becoming a separate nation… Tuhoe sources have told us the first steps towards separate Tuhoe rule are also on the table under what's called 'mana motuhake'. The tribe wants Government functions like schools, health and welfare handed over to Tuhoe, with other functions - even tax - devolved over time.

The Minister of Treaty of Waitangi Negotiations responded to this item by issuing a statement that included the following:

At no point in the negotiations have Ngai Tuhoe asked for any form of separatism from New Zealand or an independent Tuhoe state.  Those issues are simply not part of any negotiation the Crown is undertaking.  The Crown has not, and will not, make any offer to Ngai Tuhoe that includes such forms of redress. 

While the Minister was quick to dismiss the idea of a separate, independent Tuhoe state, issues of self-determination, increased autonomy, and tino rangatiratanga are inevitably a part of all Treaty of Waitangi settlement negotiations.  In the case of Ngai Tuhoe, there has been a particular focus on political and constitutional arrangements throughout the claims and settlement process to date.  As noted above, this is nothing very extraordinary in the context of Treaty of Waitangi settlement negotiations, but does provide an opportunity to more directly address ‘constitutional claims’.

These constitutional claims were heard by the Waitangi Tribunal as part of its Te Urewera district inquiry.  Last year, the Tribunal released a pre-publication version of Part 1 of its report on the Te Urewera claims.  The Tribunal notes that, as Ngai Tuhoe were not signatories to the Treaty of Waitangi, they were not automatically bound by its terms, though the Crown’s obligations to Ngai Tuhoe are not affected:

Due to the failure of the Crown’s emissaries to bring the Treaty to Te Urewera in 1840, the claimants’ tipuna were not offered the chance to debate the terms of the Treaty or a relationship with the Crown, or to come to a decision on the matter. By British law, the Crown’s sovereignty over the whole of New Zealand rested on its proclamations of May 1840, as gazetted in October 1840. In political terms, however, life continued unaltered in Te Urewera after October 1840. The Treaty took effect for the claimants’ tipuna only as a unilateral set of promises made to them by the Crown.

The one part of the Tribunal’s report that has, to date, been released as a pre-publication document, only addresses the period up until 1865.  The Tribunal suggests that there was nothing that took place between 1840-1865 that significantly affects the matters that are the subject of the ‘constitutional claims’:

Government did not attempt to assert any authority in Te Urewera until 1866, when it confiscated a sizeable portion of land in the district. Nor did it attempt to enter into a relationship with the peoples of Te Urewera, or to obtain their consent to its authority.

It is this background that provides a central part of the context for Ngai Tuhoe’s Treaty settlement negotiations.  It is hardly surprising that one of the subjects listed as a key area for discussion in the Terms of Negotiation is described as follows:

Constitution: aim to provide clarity between the Crown and Ngai Tuhoe regarding their constitutional relationship. Such discussions should focus on historical, current and future Treaty relationships

Establishing new relationships between iwi/hapū and the Crown is a vital part of the Treaty settlement process.  Without such new relationships it is impossible to move towards any form of reconciliation.  These issues sit at the heart of Ngai Tuhoe’s claims and it will be interesting to see how these will be addressed in any proposed settlement.