Thursday, February 6, 2014

Year 174

At this time of year, I like to reflect on the 12 months gone by and take stock of the Treaty relationship. The 174th year of the Treaty of Waitangi saw several important government reviews that address matters directly relevant to the Treaty relationship. It was another busy year in terms of Treaty settlements and some major pieces of settlement legislation were introduced. A well-publicised decision in the Supreme Court re-strengthened Treaty principles. And the New Zealand legal system shows signs of beginning to operate in a more bicultural way.

The year in reviews
2013 seemed to be a year in which a number of important elements of the Treaty relationship were under review in some way or other. 

The Constitution Conversation
Perhaps most significantly, the Constitutional Advisory Panel's report was released. The Panel's terms of reference specifically directed it to consider two areas that specifically relate to Māori:
  • The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); 
  • and Māori electoral representation.

The Panel has recommended that the Government:
  • continues to affirm the importance of the Treaty as a foundational document
  • ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
  • supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
  • sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and arrangements in which the Treaty is the foundation
  • invites and supports the people of Aotearoa New Zealand to continue the conversation about the place of the Treaty in our constitution.
 As I noted at the time the Panels report was released, I am not sure that this really takes us much further in the constitutional conversation, though I believe the Panel was always going to be constrained in its recommendations because of its narrow terms of reference and its politicized origins.

Note that the far more wide-ranging work being undertaken by Matike Mai Aotearoa - the independent working group on constitutional transformation that is being led by Moana Jackson and Margaret Mutu is continuing. This group has conducted over 200 hui around the country between 2012-2013 and is beginning a round of feedback hui with a meeting at Waitangi today.

Te Ture Whenua
Te Ture Whenua Māori Act 1993, which is the key piece of legislation that regulates Māori land, was also the subject of a government review this year. A four-person panel sought feedback in April 2013 on five key propositions:
Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged ownersAn engaged owner is defined as an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee. Engaged owners should be able to make decisions (excluding sale or other permanent disposition) without the need for endorsement by the Māori Land Court.
 Proposition 2: All Māori land should be capable of utilisation and effective administrationWhere owners are either not engaged or are unable to be located, an external manageror administrator may be appointed to manage under-utilised Māori land. The Māori Land Court should have a role in approving the appointment and retaining oversight of external administrators.
 Proposition 3: Māori land should have effective, fit for purpose, governanceThe duties and obligations of trustees and other governance bodies who administer or manage Māori land should be aligned with the laws that apply to general land and corporate bodies. There should be greater consistency in the rules and processes associated with various types of governance structures.
 Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputesDisputes relating to Māori land should be referred to mediation in the first instance. Where the dispute remains unresolved following mediation, it may be determined by the Māori Land Court.
 Proposition 5: Excessive fragmentation of Māori land should be discouraged.Succession to Māori land should be simplified. A register should be maintained to record the names and whakapapa of all interests in Māori land, regardless of size.
When originally established, the panel was due to report to Government by December 2012. These timelines were extended, but there have been no public announcements on this matter since submissions closed over six months ago.

The  New Zealand Māori Council
The Government also initiated a review of the Māori Community Development Act last year. This is a significant piece of legislation in the context of the Treaty relationship because it is the Act that governs the New Zealand Māori Council and the Māori Wardens. A discussion paper was released in August 2013 presenting two broad options for the future of the New Zealand Māori Council:
  • A new refocused national Māori organisation concentrates on social and economic issues that impact on community development for all Māori; membership, direction and priorities mandated by the community, with robust and transparent measures designed to ensure accountability to Māori; legislation will need to be amended to remove outdated statutory responsibilities; or
  • No change New Zealand Māori Council continues along with the existing statutory responsibilities as outlined in the 1962 Act to:
    • consider and discuss matters relevant to the social and economic advancement of Māori;
    • promote, encourage and assist Māori to conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being; and
    • collaborate with government departments on employment, education, training, housing and health. 
The paper also sought feedback on the structure of the New Zealand Māori Council and the roles and responsibilities of Māori Wardens and proposals to re-establish Community Officers. Members of the New Zealand Māori Council filed a claim with the Waitangi Tribunal alleging that the process that the Crown had adopted for reviewing this important piece of legislation was in breach of the principles of the Treaty. In December 2013, the Waitangi Tribunal agreed to convene an urgent hearing to hear some aspects of the New Zealand Māori Councils claim.
Treaty settlements
Not only has this been another busy year for groups involved in Treaty settlements, but there have also been some major developments in this area. The number of agreements signed and the progress of settlement legislation through Parliament gives a clear indication of the work taking place in this sector. In a summary written for the Māori Law Review of settlement legislation before the House in 2013, I noted:
Co-governance was a strong theme in settlement legislation this year.  Many bills, especially those dealing with highly-prized waterways or other natural resources, appear to be drawing on some of the core ideas from the Waikato River Settlement.  The Ngāti Hauā and Ngāti Koroki-kāhukura bills directly extend the Waikato River co-management regime.  A number of the bills currently before the House include provision for co-governance mechanisms, not only between Māori and the Crown, but between two or more Māori communities.  Perhaps the most striking example of the creative possibilities of co-governance models is the approach adopted in the Te Urewera-Tuhoe Bill.  In that instance, a governance board is established with members appointed by Tūhoe and the Crown to act on behalf of Te Urewera itself.  And there is also provision within that Bill for other iwis interests within Te Urewera.  As this example illustrates, along with many of the other settlement bills introduced this year, Treaty settlements almost always need to take account of complex and inter-locking rights and interests.  The settlement legislation this year covers areas such as the Waikato, Rotorua, and Te Tau Ihu where these inter-locking interests are evident and as more and more settlements are completed we are beginning to see an increasing amount of cross-referencing that attempts to capture this complexity.
The arrangements in relation to Te Urewera are amongst the most notable developments in the Treaty settlement arena. As described in the Māori Law Review summary of the Te Urewera-Tuhoe Bill, the key mechanisms are as follows:
Te Urewera is declared to be a legal entity, having all the rights, powers, duties and liabilities of a legal person. The Bill provides that Te Urewera establishment land will no longer be vested in the Crown but will instead will be inalienable and vest in Te Urewera itself.  The rights, powers and duties of Te Urewera are to be exercised on its behalf by a governance body to be established by the Bill, known as Te Urewera Board.  The Board is to provide governance for Te Urewera by undertaking functions such as preparing and approving a management plan for Te Urewera, monitoring the implementation of that plan, making bylaws for Te Urewera, promoting and advocating for the interests of Te Urewera in statutory processes, and a range of similar activities. The Board will initially consist of four members appointed by the trustees of Tūhoe Te Uru Taumata and four members appointed by the Crown.  From the third anniversary of the settlement date, the Board will consist of six members appointed by the trustees of Tūhoe Te Uru Taumata and three members appointed by the Crown. The chief executive of Tūhoe Te Uru Taumata and the Director-General of Conservation will be responsible for the operational management of Te Urewera in accordance with the plan and priorities adopted by the Board.
Water and State-Owned Enterprises
One of the more high-profile Treaty-related developments of 2013 came near the start of the year when in February the Supreme Court issued its decision in New Zealand Māori Council v Attorney-General and dismissed the Māori Councils appeal in relation to the proposed partial privatisation of Mighty River Power. This meant that the Government could proceed with the sale of shares in Mighty River Power, but the decision also reinforced Treaty principles.  As I noted at the time:
Even though the outcome of the Supreme Court decision is the same as the outcome of the High Court decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s reasoning.  Justice Young found that the proposed sale of shares in Mighty River Power was not subject to an action in judicial review that is based on consistency with the principles of the Treaty of Waitangi.  However, the Supreme Court disagreed, drawing for support on the approach of the Court of Appeal in the 1987 SOE case: 
The Court of Appeals recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Māori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses. In re-enacting the identical provision to act consistently with Treaty principles, in the mixed ownership companies legislation, Parliaments purpose is that the Treaty provisions in Part 5A carry the broad meaning, and be given the broad application reflected in the judgments of the Court of Appeal concerning s 9 in the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same interpretation as s 9 of the State-Owned Enterprises Act has received, particularly from the Court of Appeal in the SOE case, and also from the Privy Council in New Zealand Māori Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance. It is on that basis that we address the arguments of counsel concerning the legislation.
Consequently, the Supreme Court determined that decisions in relation to the sale of shares in Mixed Ownership Model companies can be challenged on the basis of inconsistency with the principles of the Treaty of Waitangi.  This is, I think, an important re-strengthening of Treaty principles.

Nevertheless, the Court went on to conclude that, because there was no material impairment to the Crowns ability to recognise Māori rights or provide redress, the sale of shares would not be inconsistent with Treaty principles. 

However, I would venture to suggest that this is not the last we have heard about rights to water.

Steps towards a bicultural legal system?
The past 12 months have also seen some positive developments in the way that the New Zealand legal system engages with the Māori world.

In December 2013, five candidates were admitted as barristers and solicitors of the High Court in a ceremony that was, for the first time, conducted in te reo Māori.

Another first was the enactment of a bilingual statute. The Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013 gives effect to an agreement between the Crown and the descendants of the rangatira Mokomoko for the Crown to obtain both statutory recognition to the free pardon granted to Mokomoko in 1992 and a declaration that the character, mana and reputation of Mokomoko and his uri (descendants) are restored. Mokomoko was a rangatira of Whakatōhea who was wrongly convicted of murder and executed in 1866. He was subsequently pardoned in 1992.

As I noted in the Māori Law Review report on the Bill:
The Māori Affairs Select Committee supported the request of te whānau a Mokomoko to amend the bill by having a full Te Reo Māori translation included.  The Select Committee report noted that translating the legislation before enactment would have the legal impact that the English and Te Reo Māori versions would be considered equal and the Committee commented on the positive impact that the dual translation could have on future legislation.
And this was also in a year in which two important books were published that speak directly to the bicultural dimensions of our legal system. The first is Te Mātāpunenga: A Compendiumof References to the Concepts and Institutions of Māori Customary Law. The second is He Papakupu Reo Ture: A Dictionary of Māori Legal Terms. Both are significant resources that are set to make an important contribution to the way in which New Zealand law approaches Māori issues.

This may only be tentative first steps and have arguably been a long time coming, but, in the 174th year of the life of the Treaty of Waitangi, they are encouraging signs nonetheless.