Monday, July 4, 2011

Wai 262 - The Tribunal's general approach

The Waitangi Tribunal’s report in response to the Wai 262 claims, Ko Aotearoa Tenei, is clearly a significant document.  The length of the inquiry and the bredth of issues addressed virtually ensures that will be the case.  But, for me, the most significant aspect of the report is that it articulates a vision of law and policy making that is genuinely based on two founding cultures -  what the Tribunal refers to as “perfecting the Treaty partnership”.

I ought to note from the outset that I have worked on the Wai 262 inquiry, as both a Waitangi Tribunal staff member and, more recently, I was contracted to support with the report-writing phase of the inquiry.  So, I have at times been quite close to the Tribunal’s work on this inquiry. Undoubtedly, this affects the way I perceive the report, though I hope it does not detract from my analysis of it.

Important context for the entire report is provided in the report’s introduction, which reflects on the two founding cultures that underpin New Zealand society - the cultures of both “Kupe’s People” and “Cook’s People”.  The meeting of these two peoples and their respective social, legal, scientific and philosophical worlds is the background which led to the Treaty itself and the important commitment of both parties to develop, formally from 1840, together in partnership.  According to the Tribunal, it is this consensus that provides us with the constitutional framework to develop an approach to government that is underscored as much by Maori knowledge, language, culture and ideas, as it is by Western models of philosophy and government.
The concept of kaitiakitanga is at the heart of the report and the Tribunal recommends mechanisms to ensure it is also at the heart of law and policy making.  The Tribunal explains the way it uses this concept as follows:

Kaitiakitanga is the obligation, arising from the kin relationship, to nurture or care for a person or thing. . . Kaitiaki can be spiritual guardians existing in non-human form. . . But people can (indeed, must) also be kaitiaki. . . Mana and kaitiakitanga go together as right and responsibility, and that kaitiaki responsibility can be understood not only as cultural principle but as a system of law.

Essentially, the Tribunal suggests three basic levels of protection that might be applicable to kaitiaki relationships:

1. Full decision-making authority in the hands of the kaitiaki;
2. Partnership with the Crown (not merely Maori input, but genuinely shared decision-making), and;
3. Influence over decisions that affect the kaitiaki relationship.

No doubt many people will be disappointed that the Tribunal has stated that it may no longer be possible to deliver full-autonomy to Maori in all circumstances where Maori interests are at stake.  But it seems to me that the report suggests that the constitutional Treaty guarantee of tino rangatiratanga requires that the default position ought to be that full-decision making authority sits with the kaitiaki.  This is a powerful starting point.  Nevertheless, where other interests are sufficiently strong, these may need to be balanced against the protected Treaty interest, which may in turn lead to some form of shared decision-making.  And in the rare cases where shared decision-making is not possible, the Tribunal notes that it must always be open to Maori to influence decisions that affect their taonga.

In a report that addresses such a broad range of subject matter, the Tribunal has, of necessity, often dealt with matters at the level of general principles, indicating that the precise level of protection of the kaitiaki relationship and the taonga in question will often require a very fact-based, case-by-case analysis.  Yet the principles articulated by the Tribunal in each area give clear guidance as to how the kaitiaki interest should be prioritized and given effect.  Across the range of policy areas that are considered, the key for the Tribunal is to ensure kaitiaki are able to exercise genuine decision-making authority and that government agencies are required to deal with the kaitiaki interest in a way that is consistent, transparent and accountable. 

This is not about extending consultation or establishing advisory committees that have no power to enforce their decisions.  For example, in relation to the use of Maori imagery in trademark applications, the Tribunal recommends shifting from a model of input and advice from an expert Maori committee, to actually vesting decision-making authority on these issues (and related matters) in a commission that is able to assess the kaitiaki relationship in question and determine how it ought to be best protected in any given case.

Whether in the case of Maori forms of artistic and cultural expression or in relation to matters that affect land and the environment, the mechanisms recommended by the Tribunal aim to provide avenues for Maori to articulate the rights and responsibilties they are seeking to exercise as kaitiaki.  So, the Tribunal proposes changes to the resource management regime that significantly enhances the role of Iwi Resource Management Plans (IRMPs).  Iwi Management Plans are not new, but the Tribunal is envisaging a system where agreed parts of these IRMPs must be given effect to by district plans, giving kaitiaki the opportunity to initiate the discussion as to how their vision for the natural environment in their rohe ought to be given expression.

So, those are just a few general points that strike me about the overall layout of the report and the conceptualisation of the issues it touches upon.  There is a great deal in this report and, like most people, I am still getting to grips with much of the detail.  I will try to post again soon to address some of the report’s content in specific subject areas.