Ka kuhu au ki te ture hei matua mō te pani

I seek shelter in the law, for it is a parent to the oppressed

- Te Kooti Arikirangi Te Turuki (c.1832-1893)

Sunday, January 31, 2010

Haronga v Waitangi Tribunal and Ors

A few weeks ago I posted a brief comment on the recent decision in Attorney-General v Te Kenehi Mair and Ors, a case that related to the procedure of the Waitangi Tribunal.  Another decision relating to the Waitangi Tribunal’s procedure was also delivered late last year. Haronga v Waitangi Tribunal and Ors was heard in the High Court at the beginning of December and Justice Clifford delivered his judgment a couple of days before Christmas.  
As with Te Kenehi Mair, the subject of this case was a decision of the Waitangi Tribunal to decline an urgent hearing of the applicant’s claim.  In each case, the application for an urgent hearing had been sought because of an imminent settlement agreement which the applicant argued would prejudice the claim at issue.  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.  It should be noted that the question of remedy for claims relating to Crown forest land can raise distinctive issues because this is one area in which the Tribunal can make binding orders.
The Waitangi Tribunal has developed a range of criteria to be considered when determining whether to grant an urgent hearing and also criteria to be considered when determining whether to grant a remedies hearing subsequent to the substantive inquiry of the claim at issue.  After considering both sets of criteria, Judge Clark, in the Waitangi Tribunal, declined Mr Haronga’s application for an urgent hearing.  Judge Clark reasoned that the Waitangi Tribunal had heard the substantive claims relating to the Mangatu forest as part of the Turanganui-a-Kiwa inquiry and had not seen fit to make a binding recommendation that the forest lands be returned at that stage, rather emphasizing in the Turanga Tangata, Turanga Whenua report that it would be appropriate to settle the claims in that inquiry through district-wide negotiation that involved the groups that comprise Te Manu Whiriwhiri.  Judge Clark also reasoned that, on the two occasions in the past when the Tribunal had held remedies hearings, that was only after settlement negotiations had broken down.  That was not the case here.  Further, the shareholders of Mangatu Incorporation would not be denied a remedy for this claim because they were all members of one of the groups within Te Manu Whiriwhiri and so would benefit from the proposed settlement in that capacity.
Mr Haronga’s judicial review application before Justice Clifford in the High Court was primarily based on the premise that the Waitangi Tribunal’s statutory powers to make binding recommendations in relation to Crown forest land gives raise to a process which is quite separate from ordinary settlement negotiations.  Therefore, Mr Haronga contended that, in refusing an urgent hearing for the reasons set out by Judge Clark, the Waitangi Tribunal was effectively deferring, unlawfully, to the Crown’s settlement processes.  Mr Haronga also claimed that none of the groups within Te Manu Whiriwhiri held a mandate in relation to the Mangatu Forest issues and, in any case, the claim relating to remedies was distinct from the substantive claims that were heard in the Turanga inquiry.  
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. However, Justice Clifford suggests that if there had been a formal withdrawal of mandate in relation to those specific claims, then the Waitangi Tribunal would have erred in law if it had nonetheless sought to rely on the ongoing nature of the settlement negotiations as the reason to refuse an urgent hearing.

Thursday, January 28, 2010

Human Rights Commission 2009 Treaty Review and Discussion Paper

The Human Rights Commission released two documents today relating to the Treaty of Waitangi.  


The first document is a report on developments relating to the Treaty in 2009.  This report is one section of a broader review of race relations issues.  The complete review will be released in March but the Human Rights Commission has chosen to release the section focusing on the Treaty of Waitangi now in order to encourage reflection on Treaty issues as we approach Waitangi Day.  The report acknowledges that there have been some ups and downs in relation to the Treaty over the past year, though ultimately it suggests that 2009 has generally seen positive progress in this area.  Amongst a list of ‘Treaty milestones’, the report notes the review of the Foreshore and Seabed Act, progress on Treaty claims and settlements, the agreement over the Māori flag, and discussions between Māori and the government about how to improve the Treaty settlement process.


The second document is a discussion paper on human rights and the Treaty.  This paper is published in preparation for the Commission’s next Status Report on Human Rights in New Zealand, which will form the basis for the second New Zealand Action Plan for Human Rights.  This discussion document proposes seven priorities for action in relation to human rights issues relating to the Treaty of Waitangi:
  1. Examine constitutional arrangements: Review laws that make up our constitutional framework, to ensure the Treaty, indigenous rights and human rights are recognised and provided for, and consider entrenching them as constitutional norms.
  2. Settle the past: Conclude the settlement of historical breaches of the Treaty promptly and fairly.
  3. Explore new pathways: Develop and implement new pathways to partnership between Tangata Whenua and the Crown in central and local government, business, resource management, and environmental protection, in order to improve economic, social and cultural outcomes for all New Zealanders.
  4. Strengthen existing forums and processes: Build on existing processes and develop new forums for Tangata Whenua and the Crown to engage at local and national levels.
  5. Promote public awareness: Increase public understanding of the Treaty and the human rights of Indigenous peoples and build relationships between Māori and non-Māori New Zealanders at the community level.
  6. Focus on children and their families: Ensure all children and young people enjoy improved economic, social and cultural outcomes that more fully realise the rights set out in the Treaty of Waitangi and international human rights treaties, including the Declaration on the Rights of Indigenous Peoples.
  7. Explore indigenous rights implications in the wider Pacific: Promote discussion of the application of the Declaration of the Rights of Indigenous Peoples in the wider Pacific context, particularly in relation to the peoples of Niue, the Cook Islands and Tokelau, who are New Zealand citizens, and in light of the whakapapa connections of Māori to other Pacific peoples.
The Commission is seeking comments on its proposals set out in this document by mid March.

Monday, January 25, 2010

Te Papa Treaty Debates

Over the next couple of weeks Te Papa Tongarewa (in partnership with the New Zealand Centre for Public Law) will be hosting this year’s Treaty Debates, continuing the excellent series that has been an annual event since 2005 and has, each year,  provided engaging discussions of Treaty of Waitangi issues.  This year’s theme is ‘Evolution not Revolution’ and begins this Thursday with Professor Paul Spoonley and  Dr Ranginui Walker considering the last 30-40 years of Māori activism.  The following week will see Professor Mason Durie and Colin James discussing the Treaty of Waitangi and the state.  Both sessions will be chaired by Claudia Orange. The debates are well worth attending if you are in Wellington.  Further information about the debates can be found on the Te Papa website.  

The debates will also be broadcast on Radio New Zealand National.  Paul Spoonley and Ranginui Walker’s session will be broadcast after the 4pm news on Sunday, 31 January and repeated after the 9pm news on Tuesday, 2 February.   Mason Durie and Colin James; session will be broadcast after the 4pm news on Sunday, 7 February and repeated after the 9pm news on Tuesday, 9 February.  I understand that video recordings of the debates will be made available on the Te Papa website.  Recordings of many of the debates from previous years can be found there too and podcasts are available on the National Radio website.

Sunday, January 24, 2010

State of the World’s Indigenous Peoples

Last week the UN released a report entitled State of the World’s Indigenous Peoples.  This report addresses a range of social and economic indicators which present an alarming picture of Indigenous Peoples’ health, education, poverty, and interaction with criminal justice systems.  Though many people will be all too familiar with these kinds of statistics, the report usefully brings together data relating to Indigenous Peoples throughout the world and points to issues faced by those communities, whether they be in developing or developed countries. The report is set out in chapters which address poverty and well-being, culture, environment, contemporary education, health, and human rights.  The final chapter outlines a number of emerging issues for Indigenous Peoples.  

One thing that stands out in the report’s analysis is the stark disparities between Indigenous populations and groups in developed countries such as Australia, New Zealand, Canada, and the United States. For example, in relation to Māori in New Zealand the report notes:

“New Zealand is another country ranking high in global comparisons of human development, but where there exist persistent disparities between Maori and non-Maori in areas such as paid work, economic standard of living, housing, health and justice.”

The issues relating to criminal justice are perhaps most overtly connected to the operation of state legal systems.  Again, these issues are not new.  In the New Zealand context, it has been over 20 years since the publication of Moana Jackson’s, still excellent, report to the Department of Justice entitled Māori and the Criminal Justice System: A New Perspective = He Whaipaanga Hou. Since that time there appears to have been little progress in this area.  There have been some attempts by governments to address the findings of Jackson’s report, though, as the Waitangi Tribunal’s report on offender assessment policies highlighted, the implementation of such measures has been problematic. To participants at a 2008 colloquium focusing on Māori justice, many of the issues identified in Jackon’s report were, 20 years on, still relevant and of great concern. (For those who are interested, Juan Tauri provides a helpful commentary on the aims, structure and organization of that colloquium in the New Zealand Sociology journal).

Though criminal justice matters are directly linked to the state legal system, as State of the World’s Indigenous Peoples notes, all of the issues addressed in that report have come about largely as a consequence of the processes of colonization, economic marginalization and the imposition of settler legal systems and clearly all require the urgent attention of governments, legislators, and policy-makers.  

Monday, January 18, 2010

Year 170: Treaty Settlements Progress

The settlement of Treaty of Waitangi claims continued at pace during the 170th year of the Treaty relationship.  


The Crown signed Terms of Negotiation with NgāiTakoto (a Far North iwi based around Kaitaia and the Aupouri Peninsula) and Ngā Punawai o te Tokotoru (a group comprised of three Te Arawa iwi: Ngati Rangiteaorere, Tapuika and Ngati Rangiwewehi).  Terms of Negotiation provide the guidelines under which negotiations between settling groups and the Crown will proceed.  For completeness, it should be noted that the Terms of Negotiation agreed with Ngā Punawai o te Tokotoru amend Terms previously signed with Tapuika and Ngati Rangiwewehi in 2008 so as to include Ngati Rangiteaorere.  NgāiTakoto has also recently progressed to the next stage in the settlement process and signed an agreement in principle as one of five iwi that comprise the Te Hiku Forum.


Agreements in principles or letters of agreement were signed with eight different Māori groups, representing seventeen iwi.  These agreements provide a broad outline of an agreed settlement package.  On the basis of that broad outline, the parties then work towards agreeing Deeds of Settlement which set out the details of the settlement redress.  Over the course of the last year, Deeds of Settlement were signed with Ngāti Manawa, Ngāti Whare, and Waikato-Tainui (the latter specifically addressing claims in relation to the Waikato River).  A Deed of ‘on account’ Settlement (agreeing specific matters prior to a comprehensive settlement) was also signed with Whanganui Iwi.  Furthermore, legislation to implement the settlement of the Port Nicholson Block claims was enacted and the transfer in July of approximately $450 million in land and cash to eight Central North island Iwi completed the Central North Island Forestry Settlement.


During 2009, the Government also consulted representatives of Māori groups on proposals to speed up the settlement process and make it more efficient.  


The progress of Treaty settlements is heartening.  As are attempts to speed up the settlement process.  Nobody would like to see the speedy conclusion of Treaty settlements more than Māori.  The return of lands and the provision of symbolic compensation can provide a foundation from which settling groups may begin to rebuild an economic base, which so many Māori groups have had taken from them in breach of the principles of the Treaty.  That rebuilding cannot happen soon enough.  


But we should also proceed cautiously in this area if we want to ensure these settlements are durable and contribute to a wider project of reconciliation.  The Canadian sociologist, Andrew Woolford, has studied the treaty process that is underway in British Columbia.  Despite the different historical contexts, the British Columbia process of modern treaty negotiations with First Nations has many similarities with the Treaty of Waitangi settlement negotiations in New Zealand.  In his 2005 book, Between Justice and Certainty, Woolford argues that if too little attention is paid to the justice of settlements because the the primary objective is seen as being to agree pragmatic deals as quickly as possible, then the injustice is not properly addressed and the settlements are unlikely to be ‘full and final’.  We can see this sentiment reflected in recently reported comments from Ngati Kahu negotiator, Margaret Mutu when she suggests that none of the settlements Maori have made with the Crown are final, and future generations will go back to the Crown for more.  And this on the eve of Mutu signing an agreement in principle with the Crown on behalf of Ngati Kahu as part of the Te Hiku Forum.


Perhaps instead of focusing on ways to conclude settlements faster, we should consider more carefully what is actually required to properly redress breaches of the Treaty and develop a strong foundation for a healthy, on-going Treaty relationship.

Thursday, January 14, 2010

Year 170: Emissions Trading Scheme amendments

Just before the climate change talks in Copenhagen at the end of last year, Parliament passed, under urgency, the Climate Change Response (Moderated Emissions Trading) Amendment Act.  This Act made major changes to the Emissions Trading Scheme (ETS) that had been set up by the previous government.  Many people more qualified for the task than me have analyzed the environmental impact of those changes.  The environmental impacts are not without Treaty consequences.  However, I would, at least at first, like to consider some of the more explicit Treaty of Waitangi implications of this legislation as part of my assessment of the health of the Treaty of Waitangi relationship in its 170th year.


The changes to the ETS were highly controversial.  There was little agreement as to what changes would be beneficial amongst the parties represented on the select committee that considered the Bill.  In the end, the National Government secured support from the Māori Party in order to pass this legislation.  The Māori Party’s support for the legislation was obtained after the Government agreed to twelve specific measures to address the Māori Party’s concerns about the Bill.  These measures touch on a range of social, environmental, and economic concerns, but there are two which focus expressly on Treaty of Waitangi issues.  The third item on the published list of agreed measures is as follows:

3. Treaty Clause in ETS legislation
The Government will support an agreed SOP, moved by the Māori party during the Committee stages of the Bill, that recognises the Treaty of Waitangi. This provision will specifically set out the ongoing decisions on which Crown has an obligation to consult. This will include regulations
covering the following:
    1. Pre-1990 forest land allocation 
    2. Fisheries sector allocation 
    3. Allocation to agriculture 
    4. Point of obligation for agriculture 
    5. Setting of targets under the Act 
    6. Reviews of the New Zealand Emissions Trading Scheme
As a consequence, the ETS legislation now includes a section which aims to give effect to the principles of the Treaty of Waitangi and specifically requires consultation with Māori on particular issues before regulations may be made under the Act in relation to those issues.  This section also requires that when the ETS is reviewed, the review panel must contain at least one person with knowledge, skill, and experience relating to the Treaty of Waitangi and tikanga Māori, the review panel must consult with Māori, and the terms of reference for that panel must include reference to the principles of the Treaty of Waitangi.


The fourth item on the list of agreed measures also relates explicitly to the Treaty, or at least to Treaty settlements:

4. Treaty settlements pre-ETS where iwi unknowingly disadvantaged
It is agreed that a solution is needed to resolve the issues raised by Ngāi Tahu that the Crown did not meet its information disclosure requirements of their Treaty Settlement in respect of the likely impact of an ETS on pre1990 forest land. Similar issues are raised by Waikato-Tainui, Te Uri o Hau, Ngati Awa and Ngati Tuwharetoa (Bay of Plenty).


The Crown, while not accepting fault, has attempted to resolve this issue by offering a Conservation contract on an area of Crown land comparable to that affected for a limited period to avoid litigation. An agreement in principle has been reached.

This all looks pretty positive for the health of the Treaty relationship.  At least on the surface.


The problem is that the changes to the ETS undermine some important aspects of the Treaty agreement, even as the legislation ostensibly protects Treaty interests.  This is where the environmental impact becomes relevant to the Treaty.  It seems clear that these changes will only weaken the ETS.  That is, the detrimental effects on the environment will be greater under the amended scheme than the ETS that was established by the previous government.  The environmental effects are likely to be significant and it should be noted that public health experts have expressed concern that Māori will be one group that is likely to be bear a disproportionate burden as a consequence of those effects.  The amendments to the ETS will damage the environment and Māori communities’ relationship with the environment, both of which can be seen to be the subject of guarantees in the Treaty.  It is absolutely right that the principles of the Treaty be acknowledged in this legislation and provision be made to protect the value of Treaty settlements.  But this seems to have come at a huge cost.  It is hard to see how enabling greater damage to the environment itself can be advancing the protection of our taonga (treasured possessions) or our kaitiakitanga (ethic of stewardship), which is so closely connected with the Treaty guarantee of tino rangatiratanga.

Wednesday, January 13, 2010

The Treaty Beyond Treaty Claims

AUT history professor, Paul Moon, has a piece in the Herald today which considers the place of the Treaty of Waitangi in the 21st century.  Professor Moon sketches a trajectory from the Treaty's slightly unpromising beginning through to the first decade of the the 21st century.  In conclusion, he notes:

What started as a cession of sovereignty in 1840, then lapsed from government attention for more than a century, to emerge in the 1970s as a source of rights and a cause for protest, might now be entering a new phase - the Treaty not as leverage for claims, but as a basis for a fruitful constitutional arrangement.

I gave a public lecture last year for the New Zealand Centre for Public Law in which I expressed a similar view  - that we are now moving out of the time when claims and settlements dominate the public discussion of the Treaty and towards a period of considering the constitutional role of the Treaty and how the Treaty partnership is to be given effect moving forward.  I suggested in that lecture that this will require a different, and perhaps, a more challenging approach to Treaty issues.  In particular, I suggested that the reliance on Treaty principles will need to be replaced by a focus on the Māori text of the Treaty.  Treaty principles qualify the terms of the Treaty and provide an important compromise that enables claims and settlements to be advanced.  However, if we are to seriously explore constitutional relationships that are based on the Treaty, that exploration ought not to start from a compromised or qualified understanding of what the Treaty says.  Rather, we should return to the terms of the Treaty to consider what it really means to give effect to 'kawanatanga' and 'tino rangatiratanga'.

Tuesday, January 12, 2010

Year 170: Rugby World Cup Broadcasting Rights and the Treaty of Waitangi

If the Treaty of Waitangi sets out a relationship that is based on partnership, consultation, protection of Māori taonga, and the mutual benefit of the Treaty partners, then the handling of the public television bids for the Rugby World Cup broadcasting rights suggests some worrying signs for the health of the Treaty relationship in its 170th year.

As many people reading this will be aware, the basic issue related to the bid made by Māori Television Service (MTS) back in September for the broadcasting rights to games in next year’s Rugby World Cup.  Significant funding was to be provided by Te Puni Kōkiri for that bid.  Competitors, including state-owned Television New Zealand saw this as providing MTS with an unfair advantage.  It seems that some Government ministers were also unhappy with this bid.  The Prime Minister talked of the need to justify Te Puni Kōkiri money being spent on the bid and the need to try and ensure that all New Zealanders are able to view the 16 games that were the subject of the bid.  The latter being a reference to MTS’s coverage of 85% of the country.  Eventually a deal was reached whereby MTS would be the nominal lead for the bid but in fact most games would be screening simultaneously on TVNZ and commercial broadcaster, TV3.  This bid has now been accepted by the International Rugby Board. For further details, media reports at the time (such as this, and this) set out the background of events.  And eventually a memo that originated from Te Puni Kōkiri (the Ministry of Māori Development) was circulating which provided a timeline of who knew what and when about the Māori Television Service bid.  Audrey Young reproduced this in her NZ Herald politics blog.

What is worrying from a Treaty of Waitangi perspective is the way that the Government moved to limit the benefits to MTS, an organization which was established to make good on Treaty of Waitangi obligations. The Māori Television Service (Te Aratuku Whakaata Irirangi Māori) Act 2003 established MTS in its current form.  Section 3 sets out the purpose of the Act and makes it clear that the purpose is to understood in the context of the recognition

that the Crown and Māori together have an obligation under the Treaty of Waitangi to preserve, protect, and promote te reo Māori.

The Minister of Māori Affairs and Te Puni Kōkiri were convinced of the value to Māori development of supporting the MTS bid, and yet this objective was forced to take a back-seat for, quite frankly, less than convincing reasons.  Aside from the MTS legislation, there have also been numerous cases and Waitangi Tribunal reports relating to broadcasting issues in connection with the Treaty-based protection of te reo Māori (the Māori language).  But with its handling of this issue, the current Government has shown that it does not place a high priority on its Treaty obligations in this area.  In fact, it has gone out of its way to protect other, somewhat marginal interests, ahead of the Treaty interest in this instance.  That hardly seems consistent with the kind of active protection of Treaty interests that the courts and the Waitangi Tribunal have found to be a key principle within the Treaty partnership.

Friday, January 8, 2010

Year 170: 'Supercity'

While 2009 saw some positive signs for the state of the Treaty of Waitangi relationship, it is difficult to see the Government’s refusal to create Māori seats on the new Auckland ‘super-city’ council as anything but detrimental to the Treaty partnership.


The Royal Commission on Auckland Governance had recommended that three seats on the new Auckland Council be set aside for Māori.  Two of these seats, the Commission recommended, should be set aside for general representation of Māori in Auckland and one seat should be set aside for a representative of mana whenua (tribal groups who traditionally held local authority in the area).  The Commission took the view that, while the two general seats should be elected by those who choose to vote on the Māori electoral roll, the mana whenua seat should be appointed by a pan-tribal leadership group in accordance with a formalised process to be developed by mana whenua tribes themselves.  The Commission explicitly states that the primary objective of these recommendations is to give effect to obligations under the Treaty of Waitangi.  


Despite a large number of submission advocating Māori representation on the new council, the Select Committee Report on the Local Government (Auckland Council) Bill recommended that no seats on the council be specifically set aside for Māori representation. Labour, the Green Party, and the Māori Party each expressed minority views within the Select Committee report.  Each of those minority views supported the Royal Commission’s finding that there should be provision for Māori representation on the new Council.  The Government majority on the Select Committee decided that, because the Local Government Act 2002 provides a process by which local councils can establish Māori seats, this was a matter best left to the new Auckland Council to address.  Furthermore, they contended that Māori representation was not an issue that was specific to Auckland and, therefore, should not be dealt with in an Auckland-specific piece of legislation.  The majority report did not even address the Treaty obligations raised in the Royal Commission’s report.


As some commentators have pointed out, it is difficult to see how the Government’s decision to not provide for specific Māori representation as part of these hugely significant reforms can be consistent with the principles of the Treaty.  When  this decision is taken in the face of the Royal Commission’s recommendations to the contrary, and numerous submissions and significant protest action opposing the Government’s decision, this must be damaging to the Treaty partnership.


In 1994, the Waitangi Tribunal found, albeit in the rather more fundamental context of Parliamentary representation, that:

The Maori seats have come to be regarded by many Maori as the principal expression of their constitutional position in New Zealand. They have been seen by Maori as an exercise, be it a limited one, of their tino rangatiratanga guaranteed to them under the Treaty of Waitangi.

Although that statement related to the Māori seats in Parliament, it is no great stretch to understand that Māori representation on the new Auckland Council is an issue that is also bound up with the Treaty partnership.  The Royal Commission recognised that.  Yet, without offering any argument to the contrary, the Government refuses to do so.

Sunday, January 3, 2010

Year 170: Foreshore and Seabed Act Review

It is no exaggeration to say that the Foreshore and Seabed Act 2004 has been a hugely controversial piece of legislation.  It sparked a massive protest march finishing with one of the biggest rallies seen at Parliament in recent times.  It led to Tariana Turia resigning from Cabinet and the Labour Party, and, eventually, it led to the Māori Party forming around her.  Tariana Turia is, of course, now a minister again, this time in a National-led administration.  As part of the deal under which the Māori Party agreed to vote with the National-led government on confidence and supply matters, the government appointed a panel to review the Foreshore and Seabed Act.  The panel reported in June 2009 and the handling of this whole issue provides some interesting pointers for assessing the current health of the Treaty relationship.
The review panel’s report provides a helpful summary of the background to this issue:
Public interest in the issue of the foreshore and seabed was triggered by the June 2003 decision of the Court of Appeal in Attorney-General v Ngāti Apa (the Ngāti Apa case). In summary, the Court ruled that:

  • the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
  • the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.

While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.

There was considerable opposition to the government’s decision to legislate, to the speed with which it did so, and to the provisions of the Foreshore and Seabed Bill.

In the aftermath of the Ngāti Apa decision, the Crown’s actions in relation to this issue were criticized by the Waitangi Tribunal, the UN Special Rapporteur on Indigenous Peoples, and the UN Committee on the Elimination on all forms of Racial Discrimination.  Therefore, it came as little surprise that the ministerial review panel found that the Act was discriminatory, that it severely restricted customary rights, and that it was “simply wrong in principle and approach”.  Anyone interested in these issues should take a look at the review panel’s report itself.

The Government’s response to the review panel’s report seems to be taking longer to develop than initially anticipated.  The Attorney-General issued a press statement on 1 July 2009 acknowledging the receipt of the panel’s report and indicating that the Government would likely indicate its response in late August.  August came and went, as did September and October.  Eventually, on 2 November 2009, the Prime Minister announced that the Government would almost certainly move to repeal the Foreshore and Seabed Act, though, as at the time of writing, we are still no wiser as to what the Act will be replaced with.

The fact that the ministerial review panel was established to report on the Act must be seen as a sign of a healthy Treaty of Waitangi relationship.  It suggests a willingness on the part of the Crown to reconsider restrictions placed on Māori rights and it sought to engage Māori and Pākehā in a conversation about a significant public policy matter.  As the review panel itself notes:

We believe also that this Review provides an ideal opportunity for reflection on how to better develop policy in areas where significant Māori interests are concerned. That could be one positive and fruitful outcome of a reconsideration of foreshore and seabed policy. By initiating this review process the government has already indicated a willingness to revise processes of policy formation in order to ensure that issues such as that which arose over the foreshore and seabed in 2003–4 do not recur.

But, let’s not forget that we do still not know what the Government’s response to this review will be.  Repealing the Act is certainly a step in the right direction, and will be an important symbolic act.  However, the key question remains as to what will replace the Act.  It would be difficult to say that the Treaty relationship is in good heart if, in the wake of the ministerial review panel’s report, supported by the weight of submissions by Māori and others, the Government still refuses to recognise Māori rights in the foreshore and seabed.  

The repeal of the Act is one thing, establishing a framework that provides for the appropriate recognition of Māori rights is quite another.  It seems to me that the Māori Party will have a tough time getting some substantial, positive reform from this Government.  After all, the Government MPs are essentially the same group of people who backed Bill English’s ‘demand’ in 2003 for the then Labour Government to legislate to ‘confirm’ exclusive Crown title in the foreshore and seabed, and then supported Don Brash’s infamous Orewa Speech which suggested the policy proposals on which the Foreshore and Seabed Act was based were too generous to Māori, going well-beyond a recognition of customary rights.  So, if these people can agree to genuine recognition of Māori customary rights in relation to the foreshore and seabed, then that really will speak of progress in the Treaty relationship.  But I don’t think it’s time to celebrate just yet.

Friday, January 1, 2010

Attorney-General v Te Kenehi Mair and Ors

Just prior to Christmas, the Court of Appeal issued a decision relating to the jurisdiction and procedure of the Waitangi Tribunal.  The decision in Attorney-General v Te Kenehi Mair and Ors is available on the Courts of NZ website.  Although not central to the outcome of the case, Baragwanath J provides some interesting comments on the Tribunal’s ability to inquire into matters that are the subject of a bill before Parliament.


This case was an appeal against a High Court decision which had found that the Waitangi Tribunal had failed to take into account all relevant matters when it had refused to grant an urgent hearing for two claims which were before it.  The Tribunal has a process whereby claimants can apply to have their claims heard urgently.  Though urgency is only granted in exceptional circumstances.  An urgent hearing was sought for the two claims at issue because the claimants were concerned that their ability to pursue their claims through the Waitangi Tribunal would be prejudiced by the Crown’s decision to enter into Treaty settlement negotiations with another group from the same area.  The Tribunal did not grant these claims an urgent hearing.  The claimants made an application for judicial review of that decision.  In the High Court, MacKenzie J determined that the Tribunal had not taken into account all the types of prejudice which might be suffered by the claimants because of the Crown’s actions. MacKenzie J quashed the decision of the Tribunal and referred the matter back to the Tribunal to decide again.  The Crown appealed against MacKenzie J’s decision.


The appeal was heard by Chambers, O’Regan, and Baragwanath JJ.  The judgment of the Court was that the appeal should be allowed and the orders made in the High Court quashed.  As it turned out, by the time this decision was issued, the Waitangi Tribunal had already reconsidered the matter and declined the request for urgency once more.  The Court of Appeal found that no further re-consideration by the Tribunal was necessary.  Chambers and O’Regan JJ issued joint reasons for their decision, with Baragwanath J writing a separate decision, though all three judges agreed as to the outcome of the case.  Chambers and O’Regan JJ determined that the Waitangi Tribunal had considered all relevant considerations in making its decision on the application for urgent hearings of the two claims at issue and, therefore, that decision was not unlawful.  Baragwanath J makes it clear in his decision that he agrees with the other two judges on this central point.  However, Baragwanath J also goes on to make some detailed comments on connected issues.


In particular, Baragwanath J considers the Crown’s argument that, even if the Tribunal’s decision on urgency had been unlawful, MacKenzie J was wrong to order a re-hearing of the issue because that would involve the consideration of matters that were the subject of a bill before Parliament.  Chambers and O’Regan JJ determine that they need make no comment on this issue because it becomes irrelevant to this case if the Tribunal’s decision is found to be lawful (as the Court so found).  Baragwanath J gives careful consideration to s 6(6) of the Treaty of Waitangi Act 1975.  The relevant subsection states:


Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of  Representatives...


Baragwanath J addresses authorities as to the privileges of Parliament and the development of the Waitangi Tribunal’s jurisdiction so as to understand the effect of s 6(6) in context.  He also looks to the Interpretation Act 1999 and takes the view that:


Section 6(6) of the Treaty of Waitangi Act does not say it may be used to stop the agreed statutory process.  It does no more than the text states: it concerns freedom of parliamentary speech and prevents the Tribunal from examining a bill; not the conduct that preceded it.


He, therefore, does not agree with the Crown’s argument that allowing the Tribunal to examine conduct that preceded a bill with overlapping content would infringe principles of comity.  Furthermore, Baragwanath J finds: 


It is contrary to settled principles of Crown dealing with indigenous peoples for legislation to be read up against them and their interests.  Parliament has chosen to limit the constraint on the Tribunal’s jurisdiction only to specific interference with its own processes; apart from that the Tribunal is empowered to examine all prior conduct.  There is no reason to make any assumption to the contrary.


Now, this isn’t central to the Court’s decision, but, nonetheless, Baragwanath J provides a useful discussion of the constitutional role of the Tribunal in relation to the Parliament and, in particular, the executive government.