At this time of year, I like to look
back over the previous 12 months, identify some of the major developments in
the Crown-Māori relationship that we’ve seen since the previous Waitangi Day,
and reflect on the health of the Treaty relationship. The 173rd year in the life of the
Treaty has provided much to reflect upon.
The proposed partial privatization of
state-owned electricity generating companies has proved to be an ongoing source
of tension between Māori and the government throughout the entire year. In February 2012 there was a flurry of
activity around the protection of Treaty principles in the new ‘Mixed Ownership
Model’ legislation. There was a hastily
convened series of ‘consultation’ hui (that did not include any hui in Taranaki
or Te Tau Ihu). The Government ignored
the overwhelming view voiced at these hui, which was that Māori did not want
shares in these companies to be sold, and pressed on with legislation to enable
the sale of shares to take place. The
Government argued that the protection provided in relation to the four power
generating companies by the Treaty principles clause in the State-Owned
Enterprises Act would not be eroded because the same ‘concepts’ would be
incorporated in the new legislation. It
is now clear that, as many of us noted at the time, simply reproducing the text
of the State-Owned Enterprises Act provision would not reproduce the same level
of protection of Treaty rights once these companies are partially privatized. From the middle of the year, the focus on
this issue turned first to the Waitangi Tribunal and then to the courts. The Tribunal granted an urgent inquiry into
issues relating to Māori rights to water resources and a hearing of matters
directly concerned with the ‘Mixed Ownership Model’ was held in July. Subsequently, the Waitangi Tribunal requested
the Crown not proceed further with the partial privatization programme before
the Tribunal issued an interim report on the matter. The Tribunal had initially indicated it would
issue this report in September but, as a result of a request by the Crown, the
Tribunal indicated that it would issue a report by 24 August, which it duly
did. In that report, the Tribunal found
that Māori did have residual proprietary rights in water bodies and stated that
the Crown would be in breach of Treaty principles if it proceeded with the sale
of shares in the ‘Mixed Ownership Model’ companies without first creating a
mechanism to preserve its ability to recognise Māori rights. Another round of pseudo-consultation by the
government took place, specifically in relation to the Tribunal’s suggested
‘shares-plus’ model, but there was only ever going to be one outcome, no matter
how many people turned out to participate.
In October the Prime Minister announced the next steps in the process
for the sale of shares in Mighty River Power, the first of the four companies
designated for partial privatization.
This kicked off the litigation through the ordinary courts with the
Māori Council making an application for judicial review to the High Court. Justice Ronald Young in the High Court found,
quite comprehensively, in favour of the Crown.
The Māori Council sought to appeal this decision directly to the Supreme
Court (that is, leap-frogging the Court of Appeal). The Supreme Court granted leave to appeal and
the appeal was heard over two days last week.
The Supreme Court’s decision will of course have great significance,
both for the Government’s partial privatization programme and for Treaty
jurisprudence. It is unlikely that we
will have to wait long for the Supreme Court’s view. Throughout this episode, the Waitangi
Tribunal and the courts have both shown themselves to be remarkably
fleet-footed in order to deal with this important issue with real urgency. However, from my perspective, it is difficult
to argue that the Government has engaged with this issue in genuine good
faith. ‘Consultation’ with Māori was
clearly undertaken as a box-ticking exercise and the Prime Minister’s public
statements on this matter have been consistently dismissive and misleading.
The urgent inquiry into Māori rights to
fresh water resources and the associated issues for the Mixed Ownership Model
companies was just part of another busy year for the Waitangi Tribunal. The Tribunal published a number of major
reports this year including a report on the funding of kohanga reo, further
substantial parts of the Te Urewera Report, and the report of the National Park district inquiry. The Tribunal has also been
required to address a range of issues relating to the settlement of Treaty
claims. The 2011 Supreme Court decision Haronga v Waitangi Tribunal led to a
significant increase in the number of urgent applications made to the Waitangi
Tribunal requesting that the Tribunal exercise its binding powers to recommend
the remedies including Crown Forest Land or former State-Owned Enterprise
land. Important remedies and
settlement-related reports in the last year have included the Port Nicholson Block Urgency Report and
the recently released Ngāti Kahu RemediesReport.
We’ve also seen Treaty settlement
legislation enacted at a faster rate than ever before. Some changes in legislative procedure have
meant that an unprecedented twelve settlement or settlement-related acts have
been enacted this year. Two pieces of
legislation – the Ngāti Whātua Ōrākei Claims Settlement Act and the
Rongowhakaata Claims Settlement Act – passed through all stages of the
legislative process this year, from introduction to royal assent. This is an astonishing number of settlement
acts to be passed and moving quickly from settlement agreement to implementation
ought to be applauded.
Although there were many other
developments of note in the 173rd year of life of the Treaty,
perhaps the final thing that I will draw attention to here is the
constitutional review. This is something
that could have a very significant impact on the health of the Treaty
relationship. The government appointed
constitutional advisory panel has been developing its process of engagement
over the last twelve months. Meanwhile,
the Independent Working Group on Constitutional Transformation – AotearoaMatike Mai (not to be confused with the Independent Constitutional Review Panel), has
been holding hui with Māori up and down the country. The constitutional review was also the focus
of this year’s Te Papa Treaty Debate Series and the constitutional conversation
is beginning. I do not expect that any
great changes will arise out of the constitutional advisory panel’s report to Government
(the narrow terms of reference and the half-hearted nature of the whole process
should see that nothing earth-shattering is included there – despite the
hysterics of some who appear to be slightly disconnected from reality). However, attention has at least been drawn to
constitutional issues. And, as many
commentators suggest, one of the most fundamental questions that we need to
deal with before any significant constitutional reform can take place is: how
do we give effect to the relationship envisaged in the Treaty of Waitangi? I hope that we’ll see some serious engagement
with this question (in good faith of course!) over the next 12 months and that
in a year’s time I’ll be reflecting on some really positive developments in the
health of the Treaty relationship in Year 174.
