Ahi-kā-roa

Wai 262 - The Making of International Instruments

2011-12-29T19:07:00.000-08:00

Thefinal substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses theconcerns raised by the claimants in relation to the international agreementsand non-binding instruments that the New Zealand government enters into withother states. The Tribunal devotes achapter of this report to these matters because “the range of internationalinstruments now reaches into the lives of all New Zealanders and can change,reduce, or enhance their most basic rights. Māori interests in traditional knowledge, culture, economic development,and the environment, to name a few, are all affected”. The Tribunal considers how the guarantees ofthe Treaty of Waitangi might act to protect Māori interests in this context andwhat practical mechanisms might ensure such protection.

TheTribunal examines three important international instruments as brief casestudies:

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘alandmark international acknowledgement that indigenous collectives as well asindividuals have rights to self-determination and in respect of their culture,identity, language, employment, health, education, and other matters.’ The claimants argued that consultation with Māorihad been limited, especially considering the significance of this instrument inrelation to a broad range of Māori interests. The last consultation that was referred to in Crown evidence took placein 2003 and the claimants contended that was neither representative noreffective consultation.

Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for theprotection of all forms of biodiversity (that is, ecosystems, species, andgenetic resources) in the common interests of all humankind.’ There appears to have been significantconsultation of Māori leading up to the signing of the CBD, however, theclaimants submitted that Māori had been excluded from the important ongoinginternational work programme of the CBD. The Crown argued that genuine attempts had been made to consult with Māoriin relation to this ongoing work, but acknowledged that had not always beensuccessful and noted that its engagement strategy only applied to bindingagreements (rather than non-binding guidelines developed through ongoing CBDprocesses).

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – anagreement that ‘sets international minimum standards for the protection of[Intellectual Property] and provides the framework for New Zealand’s domestic[Intellectual Property] law.’ The claimants raised concerns about the lack ofconsultation in relation to both the international negotiation of the TRIPSagreement and its implementation through domestic law. The Crown noted that there had been someengagement with Māori in regards to the domestic legislation. Māori provided submissions to the selectcommittee considering the legislation and there was further consultation with Māoriin relation to subsequent intellectual property law reforms.

TheTribunal notes that these three brief examples suggest some basic flaws in theCrown’s approach to engaging Māori in relation to internationalinstruments. Each of these instrumentsprofoundly affects Māori interests in some way and yet consultation with Māoriwas uneven and, for one reason or another, it was often ineffective. Problems with the Crown’s approach toengagement with Māori have arisen because the Crown:

doesnot always engage with Māori if an instrument is non-binding;
sometimesengages at the end (when laws are being passed) not from the beginning; and
sometimesdoes not engage at all even when the Māori interest is important.

TheTribunal suggests that the Crown’s approach will continue to be uneven andineffective if it continues in the same vein and notes that the Treaty entitlesMāori interests to a reasonable degree of protection. In particular, the Treaty confirms:

thatit is for Māori to say what their interests are and to articulate how theymight be protected – in this case, in the making, amendment, or implementationof international instruments. That iswhat the guarantee of tino rangatiratanga requires. It is for the Crown to inform Māori as toupcoming developments in the international arena, and how it might affect theirinterests. Māori must then inform theCrown as to whether and how they see their interests as being affected andprotected.

Aswith other chapters in this report, the Tribunal suggests here that the type ofengagement required by the Crown in order to be Treaty compliant will vary fromcase to case, to be determined by the Māori interests that are affected. Significantly, the Tribunal envisages thatthere may be some instances “when the Māori interest is so overwhelming, andother interests by comparison so narrow or limited, that the Crown should contemplatedelegation of its role as New Zealand’s ‘one voice’ in international affairs”.

Wai 262 - Rongoā Māori

2011-12-21T00:28:00.000-08:00

The claims inthe Wai 262 inquiry also raised a number of distinctive issues relating totraditional Māori medicine and healing, that is, rongoā Māori. Chapter seven of the Waitangi Tribunal’sreport addresses these issues. Inparticular, the Tribunal considers the potential benefits of rongoā Māori(‘What Rongoā Has to Offer’) and the ways in which the Crown has supported, andthe extent to which it has undermined, rongoā Māori.

The Tribunalnotes that rongoā Māori is based on Māori conceptions of health and well-being,and the Māori public health system revolved around the concepts of tapu andnoa. Maori traditional healing operatedwithin that framework. The Tribunalrefers to the work of eminent Maori health specialist, Professor Mason Durieand suggests that there are five main categories of traditional Maori healing:

ritenga andkarakia - rituals and incantations
rākau rongoā –plant medicines (though today ‘rongoā’ is used in a more general sense, it canbe used to refer to this specific form of healing)
mirimiri – a formof massage
water – used incleansing rituals and other treatments
minor surgicalprocedures – such as blood-letting to relieve swelling

Note that thetraditional Māori view of health and healing was that it comprised bothphysical and spiritual dimensions. Asthe Tribunal says:

In the holisticMāori view of health, outward manifestations of sickness reflect broaderenvironmental, family or spiritual problems. Rākau rongoā are not considered effective on their own. Indeed the most important form of treatmentby tohunga was and remains spiritual.

The traditionalhealing practices of the tohunga were, however, not able to effectively protectagainst the waves of foreign diseases colonial Māori communities encountered.“In the face of this crisis, the tohunga’s status diminished. Community adherence to tapu around the sickand the dead – which would have helped check the spread of disease –accordingly slackened. Some tohunga atthe turn of the century also resorted to confused methods that had no basis intradition.” In an effort to addresscases of medical misapplication or fraud, the Government granted the Māoricouncils the power to regulate the activities of local tohunga. Calls continued for tohunga to be bannedaltogether, and, after the emergence of Rua Kenana’s prophetic movement seemedto tip the balance in 1906, the Tohunga Suppression Act was passed thefollowing year.

The TohungaSuppression Act 1907 essentially defined three offenses:

gathering Māoriaround one by practicing on their superstition or credulity;
misleading orattempting to mislead any Māori by professing or pretending to possesssupernatural powers in the treatment or cure of disease; and
misleading orattempting to mislead any Māori by professing or pretending to possesssupernatural powers in the foretelling of future events.

The Tribunal isscathing of the Act and the motives underlying it:

Rather thanbeing a genuine attempt to deal with the problems affecting Māori at the time,the Act was an expression of an underlying mind-set that was fundamentallyhostile to mātauranga Māori. The Act’svery title sent an aggressive and provocative message about the Government’sview of Māori beliefs. Far from tacklingcharlatans or dangerous practices, the legislation imposed an effective ban ontraditional Māori healing overall. Thus,in our view, the Act was not only unjustified but also racist, in that itdefined a core component of Māori culture as wrong and in need of ‘suppression.

The Act failedto suppress tohunga completely. Therewere relatively few convictions under the Act and at the time of the Act’srepeal in 1962 there were still tohunga openly practicing. It did, however, have the effect of drivingthe practice underground. Although, inrecent years, rongoā has received recognition and support from government, itsrelatively late engagement with government (compared with other forms ofpreviously suppressed mātauranga, such as te reo Māori), is, suggests theTribunal, a legacy of this legislation.

Importantly, theTribunal notes that rongoā could play an important part in addressing thecurrent crisis in Māori health. TheTribunal reasons:

the medicinalproperties of rākau rongoā are considerable;
Māori ideasabout the role of te taha wairua (the spiritual dimension) in health remainsfundamental;
expanding rongoāservices may draw more Māori into the primary health care system;
the availableevidence suggests growing Māori demand for rongoā services.

The Tribunalcommends the Crown for funding rongoā services but notes that the Crown’ssupport for rongoā has been characterised by delays and even regressive stepssuch as the curtailing of funding for rākau rongoā. The Tribunal suggests thatthis can only be because the Crown is not convinced of the efficacy of rongoāor that the scepticism reflected in the Tohunga Suppression Act is stilllimiting the role of rongoā within the public health framework because theGovernment is afraid of being accused of political correctness.

The Tribunaltherefore recommended that the Crown take the following actions “as a matter ofurgency”:

Recognise thatrongoā Māori has significant potential as a weapon in the fight to improveMāori health.
Incentivise thehealth system to expand rongoā services.
Adequatelysupport Te Paepae Matua (the national body that supports and representstohunga) to play the quality control role that the Crown should not and cannotplay itself.
Begin to gathersome hard data about the extent of current Māori use of services and the likelyongoing extent of demand.

Significantissues relating to Māori health and healing were raised in the context of theWai 262 inquiry. As this chapterdemonstrates, many of those issues were quite specific to rongoā, or played outin a particular way in relation to this field of mātauranga Māori. Yet, this chapter also reflects the broaderconcerns raised by the claimants in this inquiry – that is, how to ensuremātauranga Māori is fully recognised, that it is supported, and that it iscontrolled, managed, used, and protected by those who are the kaitiaki.

Wai 262 - Mātauranga Māori

2011-11-23T16:36:00.001-08:00

Since I have alreadyprovided some comment on the Te Reo chapter of Ko Aotearoa Tēnei, which was released prior to the publication ofthe complete report, I will continue my commentary by going straight on toChapter Six.

The sixth chapter of theWaitangi Tribunal’s report on the Wai 262 inquiry is titled ‘When the CrownControls Mātauranga Māori’. This chapteraddresses government policy and practice across a range of agencies that areresponsible for the protection, preservation, and/or transmission of mātaurangaMāori (Māori knowledge). The Tribunalconsiders the role of culture and heritage agencies (the Ministry for Cultureand Heritage, Creative New Zealand, the Museum of New Zealand – Te Papa Tongarewa,Television New Zealand, Archives New Zealand, and the National Library);education agencies (the Ministry of Education and the New ZealandQualifications Authority); research, science and technology agencies (theMinistry of Research Science and Technology and major funding bodies such asthe Royal Society of New Zealand and the Health Research Council); and Te PuniKōkiri. The Tribunal notes that, foreach of these agencies, “mātauranga Māori is at the heart of what they do”.

The Tribunal’s analyticalframework is based on the central premise that the protection of mātaurangaMāori is a shared responsibility. Thatis, the Crown has a clear obligation to protect mātauranga Māori under Article2 of the Treaty and Māori, as kaitiaki of their own mātauranga, must alsoprovide leadership in this area. TheTribunal notes that there are various considerations which must be balanced indetermining the most appropriate approach to the protection and management ofmātauranga Māori. For example, theTribunal notes that the practicalities of protecting the physical integrity offragile taonga may sometimes need to be balanced against the principle ofkaitiaki control. Similarly, rules toprotect kaitiaki control of access to iwi or hapū-based material held, perhaps,by Archives New Zealand, should also take into account the effect that this mayhave on distancing Māori from that mātauranga.

As in other parts of thisreport, the Tribunal seeks then to lay down general principles that may beapplied to particular circumstances on a case-by-case basis. The key principles that the Tribunal suggestsought to guide the management of mātauranga Māori are:

Crown co-ordination
appropriate prioritization
sufficient resourcing, and
shared objective setting.

In relation to the cultureand heritage agencies, the Tribunal finds that current levels of co-ordinationare insufficient, noting specific matters such as uncertainty of co-operation between TVNZ and MāoriTelevision over Māori programming, “an area where competition seemscounter-productive to the cause of preserving te reo and mātaurangaMāori”.

In the case of both theculture and heritage agencies and the education agencies, the Tribunal findsthat much better engagement with Māori in these sectors is required. In relation to both sectors, the Tribunal recommendsformalizing partnerships between the relevant Crown agencies and Māori,through, amongst other measures, the establishment of electoral colleges. In the case of the culture and heritagesector, the Tribunal suggests that an electoral college might be comprised ofvarious Māori cultural groups (Toi Māori Aotearoa/Māori artists association, TeRōpū Whakahau/Māori librarians collective, Te Matatini Society, iwiorganisations, etc) who could appoint representatives to “sit at a partnershiptable with the Crown”. The membership ofthe proposed electoral college in the education sector might include theKōhanga National Trust, Te Rūnanganui o Ngā Kura Kaupapa, and Te Tau Ihu o NgāWānanga. In both cases, the intention isto establish a mechanism to facilitate true partnership between Māori and theCrown in setting objectives in these sectors.

The Tribunal expressesparticular concern about the priority accorded to mātauranga Māori amongst theresearch, science and technology agencies. The Tribunal notes the Vision Mātauranga document which provides apolicy framework for the Ministry of Research, Science and Technology (now theMinistry of Research, Science and Innovation) to promote mātauranga Māori inthe science sector. However, theTribunal points to the lack of emphasis on mātauranga Māori within theMinistry’s planning and strategy documents and recommends that the sciencesector agencies make mātauranga Māori a strategic priority in its ownright. The Tribunal also recommends theestablishment of a Māori purchase agent in the research and science sector to“boost Māori research capacity and fund the preservation of mātauranga Māoriand research that explores the interface between mātauranga and modernapplications”.

The Tribunal makes a number of other specificrecommendations in each sector and also includes recommendations for Te PuniKōkiri to establish better mechanisms for partnership and shareddecision-making in areas directly concerned with mātauranga Māori. Overall, the Tribunal notes that while manyof the agencies working in this area have Māori advisory groups or similar,there are very few instances in which Māori have real decision-making power. As in other parts of the report, the Tribunalrecommends that, for the Crown to act consistently with Treaty principles,Crown agencies must “step up and create real forms of partnership with Māoricommunities” and that the Crown must “adjust its mind-set and accept that itrepresents Māori too”.

Wai 262 - Taonga and the Conservation Estate

2011-09-23T18:47:00.000-07:00

While Chapter Three of KoAotearoa Tēnei is concerned with environmental law and policy as it relatesto resource management and the use of private land, there is a significant setof distinctive issues that arise in respect of the conservation estate. Chapter Four of the report addresses thoseissues relating to Taonga and the Conservation Estate.

The first thing to note is the particular importance of theconservation estate in the context of these issues. In part, the vast size of the conservationestate makes it central to any discussion relating to environmental law andpolicy. As the report notes, theDepartment of Conservation owns or is responsible for more than 8 millionhectares of land, about one third of New Zealand. But the area of land is not the onlysignificant matter. The conservationestate has not been subject to the sort of farming, urbanization, and othermodifications to the land and the environment that other parts of the landscapehave undergone. The conservation estateis therefore home to most of the surviving “taonga places”, where kaitiakirelationships with the natural environment and flora and fauna are possible ina way that they are not in other areas. The Department of Conservation is also responsible for almost allremaining indigenous flora and fauna species and so control access to thesetaonga.

The Waitangi Tribunal acknowledges that, in many ways, theDepartment of Conservation has led the way amongst government agencies in termsof building relationships with Māori, and yet the Department’s structure andguiding policies still fall well short of what is required by the Treatypartnership. The Department seems to bevery comfortable with consultation, but has not taken more substantive stepstowards power-sharing. The Tribunal notes that the Conservation Act 1987includes the most powerful Treaty principles provision in current legislationand recommends significant reforms in order for the Department to meet theobligation to give effect to Treaty principles.

One of the ways in which the Department of Conservationengages with Māori at a local level is through their Pou Kura Taiao. The Pou Kura Taiao are chosen for their manawithin the local Māori community and their knowledge of tangata whenua,tikanga, and te reo. Their role is to‘monitor and sustain departmental capability to achieve effective engagement’between Māori and the Department. TheTribunal recognises that this is a very effective model for ‘upgrading DOC’scapacity to relate to tangata whenua on the ground’ but stresses that Pou KuraTaiao cannot take the place of the Māori Treaty partner.

And in order to institutionalise a shift to a partnershipmodel changes are required to the Department’s structure and policy. For example, the Tribunal considers that theConservation General Policy and the General Policy for National Parks, whichset the key strategic and policy direction for the Department, ought to includeobligations to give effect to the Treaty principle of partnership. Similar to the Tribunal’s recommendations inrelation to local authorities in the resource management context, in relationto the management of the conservation estate, the Department of Conservationshould be required to seek out and identify opportunities to establishpower-sharing arrangements with tangata whenua wherever possible. The Tribunal is also highly critical of the2006 document published by Te Puni Kōkiri and the Ministry of Justice entitled Crown-Māori Relationship Instruments:Guidelines and Advice for Government and State Sector Agencies. The Tribunal finds that these guidelines areeffectively binding rules that are ‘far too restrictive for an organizationwith a statutory duty to build sound Treaty relationships.’

The major structural change recommended by the Tribunal isthe establishment of a national Kura Taiao Council and conservancy-based KuraTaiao boards. These entities would sitalongside the existing Conservation Authority and conservation boards. The Conservation Authority and conservationboards provide important stakeholder input into conservation strategy andplanning at both a national and local level. The Tribunal envisages that theKura Taiao Council and Kura Taiao boards would provide a tangata whenuaparallel to the existing organizational structure and engage with theConservation Authority and conservation boards “to determine, case by case, theappropriate level of tangata whenua control, partnership, or influence overtaonga in the environment, and to develop new models for the management ofthose taonga”.

The Tribunal’s report addresses two other specific areas ofthe management of the conservation estate. The first of these is the customary use of taonga species from withinthe conservation estate. This was asignificant issue for many of the claimants involved in the inquiry. Again the Tribunal looks to the developmentof partnerships between local tangata whenua committees and the Department ofConservation to manage customary harvesting and access to taonga species,emphasizing the importance of joint decision-making in these matters. The Tribunal also considers the management ofcommercial activity on conservation land, recommending the Department of Conservationformalize its processes for consulting with tangata whenua about concessionswithin their rohe as well as providing that tangata whenua interests have areasonable degree of preference when the Department makes decisions aboutcommercial activities in the conservation estate.

Saana Murray

2011-09-07T02:00:00.000-07:00

I was very sad to hear of the passing of Saana Murray at theweekend. Saana was the only one of the original Wai 262 claimants that wasstill alive when the report was released in July and, before any furtherdiscussion of the report, it is important to acknowledge her. Without the foresight shown by her and herfellow claimants all those years ago and the determination they demonstrated inpursuing the issues addressed in the Wai 262 inquiry we might not yet have cometo directly consider, in such a comprehensive way, the Crown’s failure torecognise and respect mātauranga Māori across the whole of government. Her rolein the Wai 262 inquiry was, of course, just one example of her passion and hercommitment to Māori rights and the wellbeing of her people. She was laid to rest today at Kapowairua.

Wai 262 - Relationship with the Environment

2011-08-16T23:18:00.000-07:00

The third chapter of the Waitangi Tribunal’s report on the Wai 262 inquiry addresses the relationships between Maori communities and the natural environment. This chapter is the first of two chapters that deal with this subject matter. Chapter 3 essentially considers how those relationships ought to be given expression in the context of private land within the framework of resource management law and environmental policy. Chapter 4 is focused on the operation of the Department of Conservation and how Maori communities’ relationships with the natural environment ought to be given expression in the context of the conservation estate. I will post some comments on Chapter 4 another time.

Some of the key concerns that the Tribunal heard from claimants related to the fact that Maori interests rarely seemed to be determinative or be given an appropriate weighting in decisions affecting the environment. Chapter 3 begins with the saying ‘Kei raro I nga tarutaru, ko nga tuhinga a nga tupuna’ (beneath the herbs and plants are the writings of the ancestors) and the Tribunal goes on to ask “how can the voice of matauranga Maori, etched as it is in the land, still speak in our changed circumstances?” In order to address this question, the Tribunal considers the nature of that voice in terms of an environmental philosophy. Referring to the writings of the late Maori Marsden, the Tribunal identifies whanaungatanga and kaitiakitanga as the two central values that underlie Maori environmental law and policy, before turning to the issue of how those values ought now to be given expression in New Zealand’s modern environmental law and policy that revolves around local authorities, the Ministry for the Environment, and a legislative framework including the Resource Management Act 1991.

One of the central themes of this chapter is that, although the Resource Management Act contains a number of provisions designed to provide opportunities for Maori to participate in environmental decision-making, many of those provisions have rarely been used and overall the Act has failed to deliver on its potential in this regard.

As earlier chapters have illustrated, the Tribunal is careful not to impose blanket solutions for the entire range of issues that kaitiaki and other environmental decision-makers may need to contend with. Once again, the Tribunal proposes mechanisms designed to give appropriate expression to kaitiaki interests to be determined by reference to matters such as the nature of the kaitiaki relationship and other interests that ought to be recognized and provided for. The Tribunal suggests that a Treaty consistent system of environmental management should be able to deliver the following:

control by Maori of environmental management in respect of taonga, where it is found that the kaitiaki interest should be accorded priority;

partnership models for environmental management in respect of taonga, where it is found that kaitiaki should have a say in decision-making but other voices should also be heard; and

effective influence and appropriate priority to the kaitiaki interests in all areas of environmental management when decisions are made by others.

The Tribunal suggests that one of the key reforms necessary to implement such a system is the enhancement of iwi resource-management plans. There is already provision within the Resource Management Act for the development of iwi management plans, but the Tribunal proposes radically changing the status of these plans and giving them real teeth. The Tribunal takes the view that iwi should be supported to set out their own vision for the way in which they wish to give expression to the values of whanaungatanga and kaitiakitanga in the management of the natural environment and in relation to their particular taonga. Crucially, the Tribunal recommends that confirmed aspects of an iwi resource management plan be complied with in the same way that district and regional plans must be. A transparent process is recommended for the way in which an iwi resource management plan may be confirmed. Any aspects that the local authority agrees with can automatically be confirmed, but where there is disagreement between the iwi and the local authority a statutory negotiation process may be entered into, and ultimately the Environment Court may decide the matter. This means that, at the least, local authorities must genuinely engage with iwi resource management plans, provide reasons for any disagreement with such plans, and be accountable to the Environment Court for its decisions. But, in most cases, it ought to provide much more than that, such as giving kaitiaki the ability to exercise real decision-making authority in relation to their taonga and consolidating important partnership relationships in the management of the natural environment.

Wai 262 - Genetic and Biological Resources of Taonga Species

2011-07-26T16:45:00.000-07:00

Chapter Two of the Waitangi Tribunal’s Wai 262 report, Ko Aotearoa Tenei, addresses issues relating to genetic and biological resources in taonga species. Consistent with the general tenor of the report, this chapter places the issues it addresses squarely in the context of two different worldviews, which, in this case, produce different approaches to science and scientific knowledge. The key sections of the chapter address Te Ao Maori and Taonga Species; Te Ao Pakeha and Research Science; Bioprospecting, Genetic Modification, and Intellectual Property; the Rights of Kaitiaki in Taonga Species; and recommended Reforms.

As with other chapters, the kaitiaki relationship is to the fore and there are also a handful of other central concepts that the Tribunal uses. ‘Taonga Species’ draws on the same ideas used in the definition of ‘Taonga Works’ in the preceding chapter. Like Taonga Works, Taonga Species are defined by the matauranga Māori (Māori knowledge), whakapapa (genealogy), and kōrero tuku iho (stories and information transmitted from one generation to the next) that are associated with those species. But in this case, the subject of the chapter is not artistic forms of cultural expression, but rather species of indigenous plants and animals. The Tribunal examines some examples of Taonga Species in detail, including harakeke (flax), koromiko, pōhutukawa, kōwhai ngutukaka, puawānanga (NZ clematis), poroporo, mānuka, kūmara, and tuatara. The Tribunal’s examination of these species illustrates the importance of Taonga Species as food sources, medicines, materials for construction and technological development, and a range of other purposes.

The chapter then goes on to consider the ways in which plant and animal species are understood and knowledge relating to them conceptualised within Western science and philosophy. Though the Tribunal is careful to note that this should not be seen as a strict binary with no areas of overlap with te ao Māori. The categorisation of plants and animals according to isolated characteristics within Western science is contrasted with the inter-connectedness identified through a Māori, relationship-based lens. Ultimately, the values that underlie Western science determine where the balance between the public and private good derived from research ought to sit and leads to the development of the patent system.

The Tribunal sees Bioprospecting, Genetic Modification, and Intellectual Property Rights as mechanisms which reflect different stages of the research process. Bioprospecting is defined as “the search, extraction, and examination of biological material or its molecular, biochemical, or genetic content . . . for the purpose of determining its potential to yield a commercial product”. Genetic modification is the process of changing in some way the genetic characteristics of an organism. For example, the introduction of an insect-resistant gene into potatoes and other vegetables. Intellectual Property Rights, such as patents, are “both the culmination of the research process and the starting point for commercial development”. That is to say that patents are “assets that can be used to obtain finance to develop research into saleable commodities”.

Claimants raised concerns that bioprospecting can conflict with kaitiaki interests in a number of ways. Other parties, it was argued, should not be able to use the traditional knowledge associated with Taonga Species to exploit the genetic or biological resources from those species without the consent of the kaitiaki. Where bioprospecting was inconsistent with tikanga Māori, it would be harmful to the relationship between the kaitiaki and the Taonga Species. Some claimants were not opposed to the commercialisation of the knowledge associated with, or genetic or biological resources derived from, Taonga Species, so long as that was done in a way that was consistent with tikanga Māori and any commercial benefit was shared with the kaitiaki community. The Tribunal notes that this would be consistent with moves in the international community to ensure Prior Informed Consent for the use of these species is gained from appropriate people and that there is some form of Access and Benefit Sharing arrangement in place.

In respect of genetic modification, the Tribunal notes that the Environmental Risk Management Authority (ERMA), which is the body that makes decisions as to whether or not to approve the development or import of genetically modified materials, can and does seek advice from a specialist Māori committee. However, the claimants contended that this committee has insufficient powers to ensure that Māori interests are properly weighted in ERMA’s decision-making. The Tribunal recommend a number of changes to the law and policy regulating genetic modification aimed at ensuring appropriate priority is given to Māori interests and kaitiaki relationships. Although the Tribunal suggests that the Māori committee that supports ERMA retain a primarily advisory role, it recommends that it appoint members to ERMA (that is, the decision-making body itself) and that the Māori committee, not ERMA, be the body that determines when specialist Māori advice is required.

Similarly, the Tribunal recommends the establishment of a Māori advisory body to the Commissioner of Patents. Again, although the functions of this body would primarily be to advise the Commissioner, as with the ERMA committee, the advisory group itself ought to decide when its advice is relevant to an application. One of its functions would be to advise the Commissioner that a patent should not be granted because it conflicts with a kaitiaki relationship. Patent legislation, the Tribunal says, ought to enable the Commissioner to refuse registration of a patent on the grounds that it unduly interferes with a kaitiaki relationship with a Taonga Species. This would not be inconsistent with international intellectual property law. And, in keeping with the general themes of the report, the Tribunal also recommends a register be created of kaitiaki interests, based on the idea that kaitiaki should be able to proactively set out the nature of their relationships with Taonga Species.

Wai 262 - Intellectual Property and Taonga Works

2011-07-10T16:12:00.000-07:00

Chapter 1 of the Wai 262 report, Ko Aotearoa Tenei, focuses on taonga and intellectual property and is consistent with the general approach the Tribunal has taken throughout this report. The nature of particular kaitiaki relationships to particular taonga sits at the centre of this chapter and the reforms suggested by the Tribunal. Although recognising the importance of assessing each kaitiaki relationship in its specific factual context on a case-by-case basis, this chapter provides clear direction about the principles that ought to guide such an assessment and the legal mechanisms the Tribunal considers necessary to give Treaty-consistent protection to forms of Maori cultural expression.

The key reforms recommended by the Tribunal in this chapter are based around the establishment of a commission that would adjudicate in matters relating to the use of Maori art forms and, more specifically, the matauranga (knowledge) that underlies those art forms. The basic concerns raised by the claimants that the Tribunal is seeking to address in this area are to prevent those who are not kaitiaki from acquiring private rights in taonga works and associated matauranga and also to provide effective recognition of the rights and obligations that reside with the kaitiaki of those taonga works.

The Tribunal recommends the adoption of a two-tier approach, dependent on the nature of the kaitiaki relationship. At one level, Maori forms of cultural expression should be protected from offensive and derogatory use. Any person ought to be able to object to such use. There are already mechanisms in the intellectual property rights regime which recognise such use ought to be prohibited. Greater protection ought to be afforded where there is a specific kaitiaki relationship to the taonga in question. So that ANY commercial use of this type of taonga will require consultation with the kaitiaki and may also require the consent of the kaitiaki.

This two-tier approach is based on the Tribunal’s distinction between ‘taonga works’ and ‘taonga derived works’. According to the Tribunal’s conceptualisation, taonga works are forms of cultural expression (songs, haka, stories, artistic works) which are distinguished by several features. All taonga works, the Tribunal says, have kaitiaki – living individuals or communities that are responsible, under tikanga Maori, for the taonga work. Taonga works have whakapapa – they are seen as representations of ancestors, whether those ancestors are the authors or creators of those works or are embedded in the work in some other way. Taonga works also “have korero”, that is to say that they tell an important story, which places an ancestor or ancestors at the centre of that story. These factors mean that taonga works have mauri – they live – and it is the kaitiaki’s primary responsibility to protect the mauri of the taonga work.

Taonga derived works on the other hand “have a Maori element to them, but that element is generalised or adapted, and is combined with other non-Maori influences.” One example of this category of work that the Tribunal points to is the famous Painting No. 1 by Gordon Walters. These works, the Tribunal says, do not have mauri in the way that taonga works do and there is no natural kaitiaki relationship with a particular kin group or community. The Tribunal takes the view that, while there should be protections relating to the way in which these taonga derived works are used, these protections need not be as extensive as those that would apply to taonga works.

This approach reflects the balance the Tribunal is attempting to strike, effectively between public and private rights. The Tribunal even suggests that “the guiding principles of kaitiakitanga on the one hand and property rights on the other are really different ways of thinking about the same issue – that is, the ways in which two cultures decide the rights and obligations of communities in their created works and valued resources.” The Western intellectual property regime has used the concept of property to define those rights and obligations because of the particular concerns and objectives of historical law and policy makers in Western societies. Maori have used the prism of relationships to work through these issues, reflecting the particular concerns and objectives of Maori communities.

So, a kaitiaki right is not a property right in the orthodox Western sense. Ultimately, the Tribunal found that “taonga works, taonga-derived works, and matauranga Maori are entitled to protection from derogatory and offensive public use” and that “any future use of taonga works for commercial purposes should occur only after consulting and, in appropriate cases, gaining the consent of kaitiaki”. The purpose of the commission that is proposed by the Tribunal would be to provide formal legal recognition of the interests of kaitiaki. In the wider context, the Tribunal notes that recognition of such interests will not only benefit Maori, but ought to contribute to a strong and confident New Zealand culture and identity.

Wai 262 - The Tribunal's general approach

2011-07-03T17:50:00.000-07:00

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.

Wai 262 Report to be released this Saturday

2011-06-29T20:59:00.000-07:00

The Waitangi Tribunal is scheduled to release the final report on its long-running Indigenous Flora and Fauna and Cultural and Intellectual Property inquiry on Saturday, 2 July. Commonly known by its original claim reference number, Wai 262, the inquiry has also been referred to as “the grandfather of all Treaty claims” because of the fundamental nature and broad-ranging scope of the issues that it addresses. A statement of issues produced by the Waitangi Tribunal in 2006 identified key questions around intellectual property and taonga; biological and genetic resources in indigenous species; the protection and promotion of tikanga, matauranga, and te reo Māori; and a range of matters concerning the claimant groups’ relationships with the natural environment.

The original claim was lodged with the Tribunal in 1991. To say that the report has been long-awaited is therefore something of an understatement. Although dealing with generic issues that are of concern to Māori throughout the country, the inquiry has focused on the specific claims of six iwi: Te Rarawa, Ngati Kuri, Ngati Wai, Ngati Porou, Ngati Kahungunu, and Ngati Koata.

The first hearings in the Wai 262 inquiry were held in 1997 and tangata whenua evidence was heard at a series of hearings from that point through until 2001. Evidence from expert witnesses and Tribunal commissioned researchers was also heard. Sadly, the original presiding officer in the Wai 262 inquiry, Judge Richard Kearney, died in 2005. The then Waitangi Tribunal chairperson, and now a judge of the High Court, Joe Williams took over the inquiry at that point and presided over something of a re-organization of the inquiry, framed by the 2006 Statement of Issues. Hearings resumed in August 2006 with Crown evidence presented in December 2006 and January 2007. Closing submissions were heard in June 2007.

Touching, as it does, on such a wide-range of issues, the report’s recommendations could have potentially significant ramifications for policy across the whole of government.

The complexity and range of issues addressed have obviously contributed to the length of this inquiry. It has been a long and, at times, frustrating road for all those involved in the inquiry over the last 20 years. As noted in a recent Herald article the release of the Tribunal’s report on Saturday will be anticipated with some excitement but also with sadness as thoughts turn to those who have made valuable contributions over the course of this inquiry but have since passed on – including members of the claimant communities, claimant lawyers, and Tribunal members. It is of particular sadness that only one of the six original claimants in this inquiry has lived to see the release of the Tribunal’s report.

The report will be available on the Waitangi Tribunal’s website from Saturday morning and I will write a post on the contents of the report once I have had an opportunity to read it.

PostTreatySettlements.org.nz

2011-06-14T16:40:00.000-07:00

A new website designed to stimulate debate about issues relating to the Treaty of Waitangi in the post-settlement environment was launched yesterday. On the website you can find a number of issues papers addressing five key topics. The site is the outcome of a project undertaken by the Institute of Policy Studies and Te Kawa-a-Māui (the School of Māori Studies at Victoria University). Personally, I would have liked to have seen a greater number of the issues papers written by Māori contributers. One might also quibble with the way in which the key issues have been chosen and prioritised. And I think that many of the additional opinion pieces referred to actually place obstacles in the path of having an intelligent, well-informed, and balanced discussion of these issues. But, I would encourage people to have a look at the site and form their own views on those matters. The site is intended to be interactive and comment is encouraged. I certainly endorse the objectives of the project team and congratulate all those involved for providing a space to engage people in discussion on these important issues.

Taniwha, railroads, and consultation

2011-06-13T15:15:00.000-07:00

Dr Kepa Morgan, a senior lecturer in civil and environmental engineering at Auckland University, has written an excellent piece for the Herald that highlights the value, when embarking on a major construction project, of understanding and addressing concerns that arise out of a body of indigenous knowledge.

Well worth a read, especially if you have been frustrated by the more sensational coverage of this issue that we have seen in the media over the last week or so.

Haronga v Waitangi Tribunal (Supreme Court)

2011-06-06T19:53:00.000-07:00

About this time last year, I wrote a brief post on the Court of Appeal’s decision Haronga v Waitangi Tribunal. The case was subsequently appealed to the Supreme Court and that court issued its decision last month. The Supreme Court overturned the Court of Appeal’s decision and, quite dramatically, overturned the Waitangi Tribunal’s own decision not to grant an urgent hearing.

As I noted in an earlier post, the basic facts of the case are 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. There were three key planks to Judge Clark’s reasoning:

The Tribunal had, in its report, Turanga Tangata, Turanga Whenua, already made recommendations as to the settlement of claims in the Gisborne region and it had not specifically recommended return of the land in question to the current owners of Mangatu and it was unlikely that the Tribunal would reach a different outcome faced with the specific issues that would form the basis of an urgent hearing.
Settlement negotiations were underway with the Crown and had not broken down in such a way as to require the Tribunal to act as a “circuit-breaker”. Admittedly, the Crown was not negotiating directly with Mangatu Incorporation, but then the incorporation had not sought a mandate to negotiate specifically a settlement relating to the purchase of the relevant Mangatu block.
The shareholders in the Mangatu Incorporation would not miss out on benefitting from the settlement because all of them are members of Te Whakarau, the relevant mandated group within Te Manu Whiriwhiri that is engaged in the ongoing settlement negotiations with the Crown.

Both the High Court and the Court of Appeal took the view that Judge Clark’s decision not to grant an urgent hearing on the matter of remedies specifically in relation to the Mangatu State Forest was lawful. The fact that the remedies sought would potentially involve the exercise of the Waitangi Tribunal’s special jurisdiction in relation to Crown forest land did not affect the question of whether an urgent hearing ought to be granted in this case.

The Supreme Court disagreed. The majority determined not only that the exercise of jurisdiction in relation to Crown forest land required particular consideration in reaching a decision on whether to grant an urgent hearing, but it affected that decision to such an extent that the only conclusion that could lawfully be reached would be to grant an urgent hearing and specifically address the remedies sought by Mr Haronga. In most cases where the court finds an administrative decision is legally flawed, the court will direct the decision-maker to make the decision again. Therefore, it is of no small significance that in this case the court has substituted its own decision for the Tribunal’s and directed the Tribunal it must grant an urgent hearing of Mr Haronga’s claim.

The fact that this claim sought the return of Crown forest land was central to the reasoning of the majority in the Supreme Court. This called into play the Tribunal’s particular jurisdiction in relation to Crown forest land, under which the Tribunal has the power to make binding recommendations that such land be used to settle well-founded claims to that land. The Court determined that, having decided the that the Mangatu Incorporation’s claims was well-founded, the Tribunal was then obliged to decide whether to grant the remedy sought by Mr Haronga. The Court noted:

While the Tribunal is not obliged to recommend a remedy for all claims it has decided are well-founded, it is required to determine whether it should do so. . . The obligation to inquire into each claim is not discharged by a determination that the claim of Treaty breach is well-founded.

The Court also referred to Justice Baragwanath’s decision in Attorney-General v Mair, where he commented that the particular jurisdiction of the Tribunal in relation to Crown forest land provides for a Tribunal determination which “while expressed as recommendatory, [is] ultimately adjudicatory”. The majority were of the view that the special characteristic of these recommendations (binding, as opposed to the Tribunal’s other, mostly non-binding recommendations) ought of have been given particular consideration in determining whether an urgent hearing should have been granted. The Court found it was not considered in this case. Consequently, the Tribunal’s decision not to grant and urgent hearing was fatally flawed as the

prejudice to the claimants of that decision could not have been properly assessed.

The Court, therefore, disagrees with all three key planks of Judge Clark’s reasons. Given the Court’s reading of the statutory scheme, the majority found that the general findings in the Turanga Tangata, Turanga Whenua report could not constitute a discharge of the Tribunal’s responsibilities. The Court also found that Mr Haronga’s actions indicated that, as far as he and the proprietors of Mangatu Incorporation were concerned, negotiations with the Crown in relation to the settlement of their specific claim had broken down. Te Whakarau could no longer be said to have a mandate from the owners of Mangatu Incorporation to address the Mangatu purchase in their negotiations with the Crown, and the fact that those negotiations were ongoing was irrelevant. Judge Clark was, therefore, incorrect when he concluded that the owners of Mangatu Incorporation would not be prejudiced by his decision not to grant an urgent hearing. As the Supreme Court pointed out, “[t]he settlement negotiated [by Te Whakarau] will not deal with the specific claim for resolution of the land under the adjudicatory jurisdiction of the Tribunal”. The majority in the Supreme Court considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and ordered the Tribunal to undertake such a hearing.

Justice William Young did not agree that this was an appropriate remedy in this case. Justice Young did not accept that the Tribunal’s binding powers in relation to Crown forest land meant that the Tribunal, when exercising those powers, was functioning as if it were an adjudicatory court. If it was, he argues, there would be no need for the staged interim and final recommendations required in exercising this jurisdiction. Furthermore, the Tribunal’s decision as to whether it ought to make any recommendations is distinct, considers Justice Young, from its duty to inquire into claims. On this view, the granting of an urgent hearing in this case is not an inevitable consequence of the Tribunal’s powers when properly exercised. Justice Young maintains that the Waitangi Tribunal is better placed to make a determination on these matters than is the Court.

The majority’s decision is notable for requiring the Tribunal to undertake an urgent hearing of Mr Haronga’s application and make a decision as to what, if any, remedy is appropriate in this case. This, in itself, is likely to have considerable ramifications for the way in which the Tribunal approaches urgency applications in future, particularly those that relate to remedies. Both the majority and minority decisions also include some significant comments in relation to settlement negotiations and the nature of the mandates held by representative bodies in those negotiations, which could also have an impact on the settlement process more broadly.

Indigenous law clinics and legal education

2011-05-13T16:13:00.000-07:00

I recently attended a conference at the University of British Columbia that focused on the role of clinical legal education in the teaching and learning of indigenous law (including indigenous legal traditions, tribal codes and federal Indian law in the USA, and legal issues of particular relevance to indigenous peoples). Clinical programmes are a more common feature of legal education in North America than they are in Aotearoa. Most of the participants at this conference were involved in running law clinics that provide legal advice and advocacy for indigenous communities and at the same time enable law students to gain practical experience. The Southwest Indian Law Clinic at the University of New Mexico is one of the oldest such clinics. The university's website describes the work of the clinic as follows:

In the Southwest Indian Law Clinic (SILC), student attorneys represent Native clients in state, federal, and tribal courts and in governmental agency hearings. Students also have the opportunity to work with tribes, pueblos, and organizations serving the Native American community. SILC faculty emphasize community involvement and sensitivity, collaborative lawyering, and multi-disciplinary problem solving.

There are similar, well-established programmes at a number of other universities throughout North America, including at Gonzaga University in Washington state, Washburn University in Kansas, and the University of British Columbia in Vancouver. These programmes aim to assist students to develop skills and knowledge through more experiential learning than can be provided in an ordinary classroom setting. But these are all closely supervised programmes, which include the kind of lectures, seminars or tutorials with which a New Zealand law student might be more familiar.

I was particularly interested in the way that a combination of classroom and clinical formats are being used in these programmes to help students develop a measure of cultural literacy. One of the conference participants, Aliza Organick, has written about the importance of building the concept of culture into legal education. Organick has suggested that problem solving in a cultural context is a crucial skill for a lawyer and that, if anything, understanding culture, and legal culture in particular, is becoming more important as the legal field becomes more globalized and rights relating to culture are being articulated in international human rights instruments.

At its heart, an awareness and understanding of culture is central to a lawyer’s ability to represent his or her client. In the context of representing indigenous groups, Christine Zuni Cruz, one of the founding directors of the Southwest Indian Law Clinic, has written:

Lawyering which respects those who comprise the community as being capable and indispensable to their own representation and which seeks to understand the community yields far different results both for the community and the lawyer. Self-determination is important to lawyering which benefits the community and the people within that community. If the lawyer cannot respect a people’s culture, which means understanding a people’s goal toward self-determination, then the people will not be well-represented.

For Zuni Cruz, culture and community are overarching themes in any lawyer-client relationship. These themes are perhaps most visible in relationships in which distinctive cultures meet and cultural boundaries need to be navigated. Indigenous law clinics then, and even the study of indigenous law more generally, provide an excellent context in which these themes can be explored. The study of indigenous legal traditions and legal issues that face indigenous communities can be a valuable part of legal education - of great benefit to law students in understanding these important aspects of the lawyer-client relationship. Indigenous law clinics can enhance these benefits through practical and experiential learning and, at the same time, assist in providing legal services to communities that often face challenges in access to justice.

Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement

2011-04-21T19:09:00.000-07:00

At the beginning of this month the Maa-nulth Final Agreement, negotiated as part of the British Columbia Treaty Process, came into effect. Looking at the contents of this agreement, I thought it might be helpful to consider how the agreement compares with settlements reached under the Treaty of Waitangi Settlement Process. I’ve used the Ngāti Porou Deed of Settlement, signed at the end of last year, as a relatively recent point of comparison. Though there are many factors which distinguish the situation of the Maa-nulth nations from that of the hapu of Ngāti Porou, even a general comparison reinforces a number of concerns I have about the durability of Treaty of Waitangi settlements.

The five Maa-nulth First Nations are Ucluelet First Nation, Huu-ay-aht First Nations, Toquaht Nation, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations and Uchucklesaht Tribe. The traditional territories of these nations are situated along the west coast of Vancouver Island and altogether this agreement will cover about 2,000 people. I have not been able to ascertain the precise land area that would have been encompassed by the traditional territories of these nations, but my rough calculations based on the maps provided by the nations in the negotiating process suggest that their traditional lands covered approximately 400,000 hectares.

Ngāti Porou are also recognised as having a traditional territory of approximately 400,000 hectares, though in most other respects the two groups are very different. The 2006 census figures show that over 70,000 people affiliate to Ngāti Porou – a population 35 times larger than the five Maa-nulth Nations combined.

Both the Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement are detailed documents which provide for a range of mechanisms designed to implement a new relationship between the indigenous community and the state. The Maa-nulth agreement is intended to reflect an agreed relationship with the state for the very first time while the Ngāti Porou settlement aims to give effect to the rights and obligations of the relationship established by the Treaty of Waitangi. These different contexts are important and do give rise to significant differences in process and substance, but perhaps not to the extent one might expect.

In any case, even though it makes for a relatively crude comparison, we can consider the total dollar value of these agreements and the amount of lands being returned. These will both be important factors contributing to the sustainability of community infrastructure and, ultimately, the durability of the agreements. The land package in the Maa-nulth Final Agreement consists of approximately 24,500 hectares. Ngāti Porou will have approximately 6,000 hectares returned to them. Even though the Maa-nulth nations are located on the relatively small Vancouver Island, and not the vast lands of mainland British Columbia, it might still be argued that, in general, the amount of land the state has at its disposal in Canada is much greater than the amount of land that could be used for Treaty of Waitangi settlements in New Zealand. Indeed, that is no doubt part of the reason why the Maa-nulth nations are receiving a much greater percentage of their traditional lands as part of their agreement.

In terms of the monetary component of these agreements, the Ngāti Porou settlement includes financial redress of $90 million (NZ) and the Maa-nulth agreement provides for capital transfers of a similar amount (approximately $70 million CDN which, at current exchange rates, is about $90 million NZ). I should note that the total value of the Ngāti Porou settlement is cited as $110 million (NZ) but that includes the value of properties returned as part of their ‘cultural redress’. As far as I can ascertain, the value of the capital transfers in the Maa-nulth agreement do not include the value of returned land. The Maa-nulth agreement also provides for various other forms of ongoing funding, though those other funding streams generally reflect things such as contracts for provision of social services that are not dealt with in the settlement of historical Treaty of Waitangi claims.

Given that the traditional territories of both communities cover a comparable land area, it might seem logical that the value of these agreements are roughly similar. However, when we recall that the Maa-nulth Nations have a population of 2,000 and Ngāti Porou has a population of over 70,000 it is clear that the Maa-nulth agreement is much more valuable when considered on a per-capita basis. It is, of course, arguable that present day population size ought not to be the only, or indeed the predominant, factor in determining the financial value of the Treaty of Waitangi settlements. I agree that the primary consideration in the historical Treaty claims settlement process ought to “what will provide a just resolution of these grievances?”. Having said that, it is a narrow vision of justice that would not take account of the value of the settlement pre head of population. Furthermore, if the settlement of historical Treaty of Waitangi claims is going to contribute to broader goals of reconciliation, then such settlements must provide a sufficient economic base for settling groups to establish a sustainable tribal infrastructure. If these settlements do not provide a sufficient base for tribal infrastructure to meet the needs of its population over more than a single generation, these settlements will not be “full and final” and will not assist with a wider process of reconciliation.

I think there are significant flaws in both the British Columbia Treaty Process and the Treaty of Waitangi Claims Settlement Process, some of which I have referred to previously. There are also numerous differences in law and policy, historically and today, between the Canadian and New Zealand jurisdictions, so any comparisons must be heavily qualified. Nevertheless, a quick (and admittedly, fairly rough) comparison between the Maa-nulth and Ngāti Porou agreements reinforces the need to consider the justice of these agreements from multiple angles if we wish them to be durable and to contribute to broader objectives of reconciliation.

Special Rapporteur Report: Treaty settlements

2011-02-27T14:15:00.000-08:00

In July last year, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, visited New Zealand to investigate the situation of Māori. That visit was to follow up the 2005 visit of the previous Special Rapporteur, Rodolfo Stavenhagen, and primarily focused on issues relating to the Treaty of Waitangi and the associated claims and settlement processes. The Special Rapporteur last week reported on his 2010 visit. In his report, he identified the concerning disparity between Māori and other New Zealanders across a range of health and social indicators. That aspect of the report has been the subject of some comment in the media. The Special Rapporteur also makes a number of interesting comments on the Treaty settlement process.

The Special Rapporteur commends the New Zealand government for its efforts to settle historical claims based on the Treaty of Waitangi, but also notes some significant “ongoing concerns”. In general, the Special Rapporteur recorded the overarching concern expressed by many Māori that the Treaty settlement process is fundamentally flawed “because the party responsible for the breaches of the Treaty of Waitangi – the Government – is wholly responsible for determining the framework policies and procedures for redress for those breaches, resulting in a situation that is inherently imbalanced and unfair to Māori”.

Of particular concern to the Special Rapporteur was that the government determines the group with which it will negotiate, which, while creating some efficiencies in the settlement process can lead to the specific claims of smaller groups being overlooked and can cut across existing hapū and iwi leadership structures. The Special Rapporteur was very troubled by the Waitangi Tribunal’s comment in its Tamaki Makaurau Settlement Process Report that although the Treaty settlement process is supposed to improve Māori-State relationships, “what we are seeing […] is that the process of settling is damaging more relationships than it is improving”.

Other concerns relate to the settlement redress that is available. The Special Rapporteur notes that “the Government wholly defines what and how much redress is available to settle historical claims” and that “Māori have expressed concern that the value of the settlements is grossly out of proportion to the value of what has been taken from them, amounting only to an estimated three per cent of the value of their total loss”.

The Government’s focus on achieving “finality” of settlements also creates problems. Because the Crown’s concept of “finality” is based on the extinguishment of Māori rights (which, I would argue, is problematic in itself), the legislation that implements aspects of Treaty settlements prevents the Waitangi Tribunal or the courts from addressing the historical claims that are the subject of that legislation. The Special Rapporteur notes “This lack of independent review contributes to a feeling on the part of Māori of an imbalance of power in the settlement process, as well as a feeling that the settlement process is at times unfair”.

The Special Rapporteur’s overall view of the Treaty settlements process is expressed in the following passage:

The Special Rapporteur understands that there are many difficulties and complexities involved in the Government’s laudable effort to provide redress for historical grievances through negotiated Treaty settlement. Nevertheless, the aforementioned concerns have fomented an uneasiness and mistrust by Māori of the Treaty settlement process, which may have negative implications for achieving the important goals of redress and reconciliation that the process is designed to advance. The Special Rapporteur observes that increasing Māori participation in and influence over settlement policies, procedures, and outcomes could go a long way in alleviating the apparent discontent in the Treaty settlement process felt by Māori groups.

If settlements are to be durable agreements that contribute to a process of reconciliation, then it will be necessary for the government to address the concerns outlined by the Special Rapporteur and focus more attention on reaching Treaty settlements that deliver justice, rather than settlements that merely deliver short-term efficiencies.

Māori Affairs Select Committee Report on Marine and Coastal Area Bill

2011-02-18T14:23:00.000-08:00

The Māori Affairs Select Committee reported back on the Marine and Coastal Area (Takutai Moana) Bill on 9 February 2011. The committee wasn’t due to report back until 25 February, so the early report back was something of a surprise. Also, as some commentators have pointed out, the report itself is unusual in that it recommends that the bill be passed without amendment but then attaches a list of amendments (some technical and some substantive), which had been recommended in the Ministry of Justice’s departmental report on the bill. One might have expected that the select committee would at least indicate which of those amendments, if any, that it supported. Opposition members of the committee have also indicated that they are unhappy with the final stages of the committee’s process, which allowed one two-hour meeting to discuss a 500 page departmental report on the bill (in some cases the report was received by committee members only on the day of the meeting), and less than a day to prepare minority reports. Along with the fact that opposition members were denied access to the government’s legal advice on the effect of changes to the threshold test for establishing customary marine title, it would hardly be surprising if this unnecessarily rushed process further undermined the possibility that this bill might provide a durable solution to matters relating to the foreshore and seabed.

It is a shame that the select committee didn’t allow time for a more thorough analysis of the departmental report, because it contains some interesting material, upon much of which it would have been useful to hear the committee’s view. For example, the departmental report notes that “[i]n the Government’s view, the 2004 Act should be repealed because of its discriminatory effect on Māori and it should be replaced with legislation that remedies that discrimination and unequivocally protects existing public rights such as access and use rights.” I understand how the bill provides for public rights. That is indeed unequivocal. But I fail to see how a bill that removes Māori property rights in the foreshore and seabed while allowing other forms of title to continue unaffected is anything but discriminatory. If the committee, or a majority of its members think that this bill will remove the basic discrimination at the heart of the Foreshore and Seabed Act, then I would like to hear their reasoning. If they consider that the bill maintains the discrimination between the property rights of Māori and those of other New Zealanders, then this ought to be highlighted in the report as something that is at odds with the purpose of the bill, as it is described in the departmental report.

The departmental report repeats the Government’s preference for a public domain ownership option. The report notes that the Government considers ownership to be a “blunt (and potentially divisive tool” for recognizing all the rights and interests in the foreshore and seabed. Ownership, by itself, might not provide for all the rights and interests in the foreshore and seabed. But whoever said that if the foreshore and seabed was held in Māori ownership that it would not be subject to any mechanisms of regulation that could provide for “the wide range of rights and interests in the foreshore and seabed”? I am sure the members of the select committee could have developed a number of creative ways of combining ownership and regulation to give effect to both public and private rights and interests, as we see in most areas of our law. Or, at least, it would have been useful to hear whether the select committee was persuaded, by the submissions that it heard, that the majority of Māori would like to swap their ownership of areas of the foreshore and seabed for the prescribed list of rights set out in the bill.

Instead of any detailed engagement with these important, and sometimes complex, issues, we have a one-page majority report that addresses the issues raised by over 5,000 submissions in seven sentences, and attaches material from the departmental report without analysis or comment. Setting aside the content of the bill, the report of the majority members of the select committee is an absolute disgrace.

Year 171

2011-02-05T05:08:00.000-08:00

As I noted around this time last year, Waitangi Day is not only a time to celebrate our nationhood, but ought also to be a time when we reflect on the nature of the relationship set out in the articles of the Treaty of Waitangi and how healthy that relationship is at present.

The 171^st year of the life of the Treaty has provided some interesting indicators of the state of the Treaty partnership.

The increasing influence of the National Iwi Chairs Forum over the last year has certainly been a notable development in terms of the way in which the Crown engages with Māori. Pita Sharples, as both Minister of Māori Affairs and Māori Party co-leader, sees as extremely positive the input that the Iwi Chairs Forum has had, and continues to have, into policy relating to the foreshore and seabed, water, aquaculture, emissions trading, forestry and resource management. Sharples suggests that this group represents the Māori Treaty partner, and that the Māori Party itself represents the Māori Treaty partner in its relationship with the National Party. Prominent Māori lawyer Annette Sykes has a different view. In the 2010 Bruce Jesson Lecture, Sykes provided a powerful critique of the National Iwi Chairs Forum and its relationship with the Crown. Sykes argues that the increasing influence of the National Iwi Chairs Forum is not enhancing the Treaty relationship. On the contrary, she suggests that it is in fact obstructive of the relationship envisaged by the Treaty, which was one between hapū rangatira and the Crown. In effect, the Crown has constructed “a Treaty partner in it’s own image” which it feels comfortable dealing with. Sykes points to the Forum’s engagement in the very areas highlighted by Pita Sharples as evidence for her argument.

The foreshore and seabed issue is one area in which Pita Sharples believes the health of the Treaty relationship is being demonstrated. Although he acknowledges that the proposed replacement for the Foreshore and Seabed Act, the Marine and Coastal Area (Takutai Moana) Bill that is currently before the Māori Affairs Select Committee, is not everything Māori might have hoped for, he clearly sees the Bill as a step towards better recognition of tino rangatiratanga. The Bill is undoubtedly an improvement on the Foreshore and Seabed Act. But it is still fundamentally flawed. Many people might wonder how it can be a step towards tino rangatiratanga for the Māori Party to support a Bill that will discriminate against Māori.

Another area that we might look to in order to ascertain the health of the Treaty relationship is the work of the Waitangi Tribunal and the Office of Treaty Settlements. There has certainly been considerable activity in this area over the past year. The Tribunal has released the Stage II report on the Tauranga Moana claims dealing with post-raupatu issues, Part Two of the report on the Urewera claims, the East Coast Settlement Report, the Wairarapa ki Tararua Claims Report, the Management of the Petroleum Resource Report, and a pre-publication version of the chapter dealing with te reo issues from the Wai 262: Indigenous Flora and Fauna and Māori Intellectual Property inquiry. We hope to see the final report for the long running Wai 262 inquiry published this year. The Office of Treaty Settlements has also been busy with major settlement legislation being enacted, a number of significant deeds of settlement reached, and important agreements in principle signed with groups in the Auckland area and the Te Hiku Forum representing five iwi from the northernmost part of the country. The Crown is continuing to work towards its target of settling all historic treaty claims by 2014. Swift progress is of as great a concern to Māori as anyone else, and yet we must not lost sight of the fact that the durability of these settlements will depend on delivering a measure of justice. With that in mind, it is worrying to note the recent concerns raised by some iwi about the pressure to settle that is being exerted by the Crown.

As we head into the 172^nd year of the Treaty of Waitangi, we have both an election and a constitutional review on the horizon. Both could well deliver significant outcomes for the way in which the Treaty relationship is implemented.

Patricia Monture

2010-12-05T18:46:00.000-08:00

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]

[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

2010-10-23T16:46:00.000-07:00

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

2010-09-30T15:48:00.000-07:00

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

2010-09-13T14:06:00.000-07:00

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

2010-08-08T13:58:00.000-07:00

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

2010-08-01T14:14:00.000-07:00

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

2010-07-23T16:12:00.000-07:00

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

2010-07-03T17:06:00.000-07:00

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?

2010-06-16T11:47:00.000-07:00

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)

2010-06-06T00:34:00.000-07:00

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

2010-05-16T12:38:00.000-07:00

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

2010-05-03T16:22:00.000-07:00

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.

New Zealand's Support for UNDRIP

2010-04-26T11:45:00.000-07:00

Last week it was announced that New Zealand would support the United Nations Declaration on the Rights of Indigenous Peoples. This is an important step forward and it was increasingly becoming untenable for New Zealand to maintain its opposition when Australia and the USA, under new, more progressive administrations, were revising their position on the Declaration. Canada, the fourth of the opposing countries, is now also reported to be moving towards acceptance of the Declaration. Even though this is an incredibly important step, the New Zealand government’s announcement represents a rather strange form of support. Various members of the Government, from the Prime Minister down, have been at pains to play down the significance of New Zealand’s support for the Declaration, mostly suggesting that it would have no practical effect. New Zealand’s statement of support does contain a number of caveats, but the Declaration will, undoubtedly, influence New Zealand law, as former High Court Judge Sir Edward Durie and public law expert Mai Chen have both pointed out.

New Zealand’s statement of support for the Declaration, and in particular, the qualifications contained within that statement, generally reflect the objections that were raised by the previous Government at the time the Declaration was adopted by the General Assembly. As noted in a previous post, anyone looking for an accessible overview of the Declaration and an analysis of the New Zealand government’s concerns could do no better than to read this article by Claire Charters. Those interested in this issue may also wish to listen to this interview with Aboriginal legal scholar Megan Davis that aired on ABC radio shortly after Australia had announced its decision to support the Declaration. And for more detailed general information about the Declaration, see the recently published collection of essays edited by Claire Charters and Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples. As always, Peace Movement Aotearoa also has a helpful collection of resources that are accessible via their website.

[UPDATE: See also Claire Charters' recent comments here]

The New Zealand government seems to be particularly concerned about the articles of the Declaration that relate to self-determination, rights to land and resources, and involvement in decision-making. As noted above, these reflect the concerns expressed by the previous government and Claire Charters’ article explains why the fears around these provisions are misplaced. I thought it might be useful here to draw attention to aspects of the government’s statement of support that relate to the Treaty of Waitangi claims settlement process and the provisions in the Declaration that address rights to lands and resources.

There are three important articles in the Declaration which relate to Indigenous peoples’ rights to lands and resources:

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

The New Zealand government’s statement of support notes:

…where the Declaration sets out aspirations for rights to and restitution of traditionally held land and resources, New Zealand has, through its well-established processes for resolving Treaty claims, developed its own distinct approach…Redress offered in Treaty settlements is, however, constrained by the need to be fair to everyone and by what the country as a whole can afford to pay.

The New Zealand government appears to be trying to say that it will support the rights set out in the Declaration, so long as it doesn’t require it to do anything differently. In particular, the government seems to think that the Treaty of Waitangi claims settlement process should continue unchanged, even if it is inconsistent with the rights set out in the Declaration. I am not sure how that process can be expected to contribute to meaningful reconciliation if it proceeds on that premise. Then again, it may well be that, despite the government’s qualifications, the Declaration becomes a much more influential instrument than some of the commentary has suggested.

West Moberly First Nations v British Columbia

2010-04-16T17:01:00.000-07:00

There was an interesting decision relating to treaty rights and consultation, which came out of the British Columbia Supreme Court recently.

The West Moberly First Nations sought a judicial review of the British Columbia government’s decision to allow mining activity (an “advanced exploration program”) on land that is subject to Treaty No. 8 (one of Canada’s numbered treaties with Indigenous groups). Of specific relevance to this case is the guarantee of traditional caribou hunting rights contained in Treaty No. 8. The West Moberly nations were particularly concerned that the exploration program and the associated clearing of forest in an area of caribou habitat would have a harmful effect on the caribou herd in that area. They argued that, in making the decision to allow the mining activity, the Crown had failed to consult adequately with respect to their hunting rights and had ultimately failed to reasonably accommodate the rights.

The Crown accepted it had a duty to consult with the West Moberly First Nations but submitted that it had done so and had, as a consequence, taken measures to reasonably accommodate the treaty-protected hunting rights. One line of argument pursued by the Crown was that the guarantee in Treaty No. 8 is a general right to hunt for meat in the area covered by that treaty, not a specific right to hunt caribou in the affected area. The court, however, found that ‘It is not an accommodation to say “hunt elsewhere”.’

Furthermore, a range of measures that were proposed to minimize or mitigate the effect on the caribou habitat were found to be inadequate consultation because they did not comprise part of a wider plan for rehabilitation and recovery of woodland caribou numbers. The absence of a recovery plan had been a long-standing concern of the West Moberly nations and was suggested by them as a reasonable accommodation and the judgment notes that the government’s failure to put in place an active plan for protection and rehabilitation of this caribou herd was a failure to accommodate reasonably.

In this case, Justice Williamson determined that, rather than quash the decision to permit the exploration program, an appropriate balancing of rights would be achieved by suspending the effect of the instruments that would permit the exploration program and associated habitat interference for 90 days “to permit and to mandate a proper accommodation of West Moberly’s concerns”. His judgment went on to note that “This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd.”

This decision may yet be appealed, though it is nevertheless being cautiously welcomed as, potentially, a significant win for the First Nations involved and for the effective protection of treaty rights more generally.

Foreshore and Seabed Review: 12 Important Documents

2010-04-10T17:05:00.000-07:00

Given that the government is currently seeking submissions on its proposals in relation to the Foreshore and Seabed Act, I thought it might be useful to gather together links to some key documents relating to the foreshore and seabed issue.
So, here are 12 important documents:

Reviewing the Foreshore and Seabed Act 2004 - the Government's consultation document, released 31 March 2010;
Pākia ki Uta, Pākia ki Tai - Report of the Ministerial Review Panel, 30 June 2009;
Foreshore and Seabed Act 2004;
Report on the Crown's Foreshore and Seabed Policy - Waitangi Tribunal report, 2004;
Ngāti Apa v Attorney General - Court of Appeal decision, 2003;
Report of the UN Special Rapporteur, 2006;
Ngā Hapū o Ngāti Porou Foreshore and Seabed Agreement, 2008;
Decision of the UN Committee on the Elimination of Racial Discrimination in relation to the Foreshore and Seabed Act 2004 - March 2005;
Attorney-General's Report on the consistency of the Foreshore and Seabed Bill with the New Zealand Bill of Rights Act 1990 - May 2004;
'Commentary on the Crown's Consultation Document' - Iwi Leaders Group, 31 March 2010;
'Tipuna Title as a Tikanga Construct re: the Foreshore and Seabed' - paper written by Moana Jackson explaining the concept of "tipuna title", March 2010;
A primer on the government consultation document 'Reviewing the Foreshore and Seabed Act 2004' - Moana Jackson, 7 April 2010.

For further materials, see the website of Peace Movement Aotearoa, which provides a comprehensive collection of links to decisions, documents, commentaries and media reports relating to the foreshore and seabed.

Foreshore and Seabed Proposals

2010-04-03T16:33:00.000-07:00

The government released a discussion document this week that seeks submissions on its proposals for the replacement of the Foreshore and Seabed Act 2004. The discussion document sets out four basic options for the ‘ownership’ of the foreshore and seabed, though most of the detail focuses on features of the government’s preferred option of the foreshore and seabed becoming an area of ‘public domain’. The proposals are, without doubt, an improvement on the 2004 Act but they fail to address substantively many of the problematic aspects of that Act.

The four options for ownership of the foreshore and seabed that are identified in the discussion document are:

Crown notional title – Crown acts as interim owner until customary title is investigated, with property rights being confirmed in Māori or the Crown on a case-by-case basis;
Crown absolute title;
Māori absolute title; and
Public domain/takiwā iwi whānui – no one would own the foreshore and seabed (except existing land held in private title. Specific roles and responsibilities in relation to the foreshore and seabed would be allocated depending on the existence of customary rights and other interests.

As noted above, the government’s preference is option 4 – under which the foreshore and seabed would become public domain. The reasons provided in the discussion document for favouring the public domain option are not entirely convincing. In particular, there is no explanation of why Māori absolute ownership is “unlikely to allow the interests of all New Zealanders to be balanced”. The shift from Crown ownership (as per the current legislation) to ‘public domain’ seems to me to be largely cosmetic. Nevertheless, I accept that this is, at least, an important symbolic statement.

While no one would be able to own the foreshore and seabed, various rights and interests less than freehold title would be recognized under the government’s proposals. Similarly to the existing legislation, the government is proposing that two types of customary interests be recognized:

territorial interests - “customary interests that are territorial in nature and extent”; and
non-territorial interests – “customary uses, activities and practices”.

Under the proposed replacement legislation, if such interests are proved, specific awards would be available to protect those interests. These awards would primarily provide a greater role in environmental management for iwi or hapū with a proven customary interest. These awards are by no means insubstantial. As the Ngāti Porou agreement illustrates, these types of outcomes may be available at present, though there are no guarantees that all iwi or hapū with customary interests could achieve the same outcome through negotiations with the Crown. The requirements of proving a customary interest would also be less demanding under the government’s proposals and having an identified range of ‘awards’ to draw on would be helpful for all concerned. The proposal to include reference to tikanga Māori in the tests to recognize customary interests would also be a significant improvement, though this is still a long way from the advocated recognition of tipuna title.

And the possibility, that existed after the Ngāti Apa decision, of being awarded exclusive title would not be re-instated under these proposals. The discussion document notes that Canadian common law and Te Ture Whenua Māori Act 1993 both allow for the award of exclusive title where the requisite customary interest has been proved but the discussion document goes on to state “The government does not support these awards because they do not provide for a role in environmental management processes”. It is not clear why it is thought that one type of award should preclude the other, nor whether the views of Māori have been sought as to which type of awards would be preferred by Māori.

So fundamental problems still remain with the government’s proposals. The proposals would exclude existing private title, just as the current legislation does. Consequently, it would remain the case that only Māori property rights would be affected. So, the discriminatory aspect of the current legislation that has been criticized by various human rights bodies is not addressed. There is also the central problem, identified by both the Waitangi Tribunal and the Ministerial Review Panel, that the current regime takes away Māori property rights and replaces them with lesser rights. The government’s proposals make those lesser rights easier to achieve, but it still appears that property rights are to be substituted, largely, by the opportunity to participate in administrative processes.

The proposals are certainly an improvement on the Foreshore and Seabed Act 2004. But then, almost anything would be. It is difficult to discern in these proposals any real shift in the Crown’s attitude to Māori interests in the foreshore and seabed.

UVic’s Proposed Bachelor of Indigenous Laws

2010-03-27T15:09:00.000-07:00

The Faculty of Law at the University of Victoria (British Columbia) has been developing proposals for a Bachelor of Indigenous Laws. A draft proposal paper was circulated recently which sets out the thinking behind this program and the considerable work that has gone into its development. As stated in the draft proposal paper, the basic idea is as follows:

The program will teach Indigenous legal orders and the common law in parallel so that, at the end of four years, students attain professional degrees in both. The program will work between the two sets of traditions, comparing them, using one to illuminate the other, exploring points of connection and possible relationship. The program will explore the rich content and processes of Indigenous traditions, teaching them in collaboration with the communities themselves.

So, at the end of a four year program of study, students would graduate with two professional law degrees an LLB (in the common law traditions) and a BIL (Bachelor of Indigenous Laws).

I thought it might be useful to point to some of the key aspects of this very exciting project.

The draft proposal paper identifies four reasons why such a program is needed. First, the paper notes that while many courts and legislatures have started to recognize the importance of Indigenous legal orders, engagement with Indigenous law is ad hoc and sporadic and, therefore, “those arguing for Indigenous norms carry a heavy burden, forced to fashion solutions from first principles in contexts that lack developed engagement with Indigenous orders. Second, the paper notes the powers of self-government that Indigenous peoples exercise and the “clear trend towards dismantling paternalistic institutions, placing those institutions under Indigenous control” and the need for understanding of Indigenous forms of social ordering in the design and operation of governance structures. Thirdly, the paper suggests there is a need for such a program to support the development of Indigenous solutions to the social and economic disadvantage faced by many Indigenous peoples. The final reason that this program is needed that is noted in the draft proposal is the need to develop models for engagement across Indigenous and non-Indigenous legal traditions and structure the interface between them to achieve more fruitful and productive relationships.

One of the most impressive things about the proposal is that is draws on the long experience that the University of Victoria has in relation to Indigenous legal education. The program builds on the expertise of the law school’s faculty members in relation to Indigenous legal issues and the emphasis on the provision of legal education to Indigenous students, but also the experience the university has gained through the Akitsiraq law school (which delivered a law degree to a single cohort of students in the Inuit territory of Nunavut - information about a second Akitsiraq program, to be offered by the University of Ottawa and the Akitsiraq Law School Society, can be found here), two intensive summer programs in Indigenous legal traditions, and community relationships built through initiatives such as the annual Aboriginal Awareness Camp and the Ethnohistory Field School run by the university’s Department of History in collaboration with the Sto:lo people.

There are also several important aspects of the structure of the proposed program that should be noted. Several courses within the program will be taught “trans-systemically.” This is an approach which is used in teaching common law and civil law at McGill University in Montreal, Quebec. The draft proposal paper explains the basic idea of teaching a course trans-systemically:

the subject matter of that course (e.g. Constitutional Law, Contract Law, Family Law, the law of Business Associations) will be taught across two traditions simultaneously, so that students will tack back and forth between them, comparing them, each illuminating the other.

One other extremely important aspect of the proposed program is the field school component. Students in the program will participate in two field schools, “situated within the legal orders studied in their trans-systemic courses”, during the final two years of their degree. The idea of the field schools is that they will combine “set instruction with experiential learning, including work of value to each community”. During these field schools, some students will work with lawyers who serve Indigenous communities, some will work with elders (as the traditional keepers of the law), assisting with matters such as the development of appropriate legal structures, the operation of tribal courts, or other relevant projects. The experience gained through the field school will be shared with the community through various round-tables and community forums.

I think this is shaping up to be a very exciting program.

Māori and Treaty issues in NZ's report to the Human Rights Committee II

2010-03-20T11:20:00.000-07:00

Following on from my previous post, the UN Human Rights Committee issued a press release following its meeting last week to consider New Zealand’s report on human rights protected by the International Covenant on Civil and Political Rights. As was evident from their prior written questions, members of the Committee were interested in a number of specific areas of New Zealand’s performance in relation to human rights matters. In particular, the Committee raised questions about criminal justice, domestic violence, asylum seekers and immigration issues, counter-terrorism measures, and issues relating to the Treaty of Waitangi and the status of Māori. Though many of these areas have implications for Māori, it is this last set of issues that I would like to address in this post.

The Committee’s press release notes:

Several experts [that is, members of the Committee] took exception to the New Zealand delegation’s claim that consideration of the Waitangi Treaty of 1840 was built into the country’s law-making process, underlining that the Treaty’s translations – and, thus its very meaning – remained unsettled, even contentious. To that end, Helen Keller, expert from Switzerland, stressed that a “consultation process” regarding land and water rights legislation was not the same as seriously integrating the views and concerns of the Māori in the decision-making process.

Ms Keller also asked whether New Zealand intended to accept the Declaration on the Rights of Indigenous Peoples. Simon Power, responding on behalf of the New Zealand delegation indicated that work was ongoing on the issue of the Declaration and the New Zealand Government’s possible support for it. He also noted that the rights recognized in the Declaration had been supported in New Zealand for many years. If that is the case, one might wonder why the New Zealand Government has such difficulty with the idea of supporting the Declaration (as mentioned in my previous post, Claire Charters has provided a very useful consideration of the Government’s position).

Picking up on the question of uncertainty, another Committee member suggested that the divergent views on translations of the Treaty of Waitangi indicated that the Government might merely be paying “lip-service” to the participation of Māori in public decision-making. This issue of certainty in relation to the meaning of the Treaty is a central concern of Matthew Palmer’s recent book, The Treaty of Waitangi in New Zealand’s Law and Constitution, which provides a very helpful analysis of the problems associated with different forms of uncertainty associated with the legal status and effect of the Treaty.

Another Committee member noted that, while he was encouraged by the Government’s attitude to the Treaty of Waitangi, he had some concerns about the Treaty settlement process. These concerns appear to relate to the issue of agreeing settlements without sufficient regard to the claims of dissenting or opposing groups (aspects of which I have touched on in previous posts, here, here, and here). The Committee member urged the Government to aim for truly negotiated solutions rather than merely “clinching the deal”.

The New Zealand delegation was also asked whether any of their ten members were themselves Māori. I’m not sure what the response to that was, but that in itself might provide an interesting indication of how important the Government perceives the participation of Māori in public processes!

Māori and Treaty issues in NZ's report to the UN Human Rights Committee

2010-03-14T16:16:00.000-07:00

As part of its monitoring role, the United Nations Human Rights Committee will this week be considering New Zealand’s performance in relation to the recognition of civil and political rights. As a signatory to the International Covenant on Civil and Political Rights, New Zealand submits periodic reports to the Committee, setting out how it is addressing its obligations under the Covenant. This process is focused specifically on the rights identified in the Covenant and so is not as broad an inquiry as last year’s Universal Periodic Review. That is a relatively new process, which covers all international human rights obligations of participating countries. This week’s meeting is therefore unlikely to raise wider issues such as New Zealand’s position in relation to the Declaration on the Rights of Indigenous Peoples. That was canvassed as part of the Universal Periodic Review and has also been noted by the Aotearoa Indigenous Rights Trust in their submission to the Committee [for a discussion of the issues relating to the Declaration, see this video, and the resources collected here, and especially this article by international law scholar Claire Charters]. However, the Committee has asked New Zealand to respond to a number of specific issues, several of which directly relate to Māori and/or the Treaty of Waitangi, and which will no doubt be the subject of further discussion at this week’s meeting.

In relation to the principle of non-discrimination set out in Articles 2 and 26 of the Covenant, the Committee asked New Zealand to provide information about the measures that have been taken to mitigate the discriminatory effects of the Foreshore and Seabed Act 2004. In particular, the Committee was interested to know whether a consultation mechanism with Māori had been established. In response, New Zealand has submitted information about the review of the Foreshore and Seabed Act and the review panel’s recommendations, ultimately noting that “On 2 November 2009, the Government announced that it is likely that the Foreshore and Seabed Act would be repealed. No decisions have been made about what will replace it.”

The Committee was also concerned about the high levels of Māori incarceration and asked what measures New Zealand was taking to address that issue. New Zealand’s response acknowledges that “at this stage no specific targets or timelines have been set for reducing the relatively high proportion of Māori in prison” but goes on to note that “the Drivers of Crime work programme will involve development of measures of effectiveness of interventions for Māori including reducing recidivism and the prison population”. The response also notes that the Department of Corrections now has a Māori Services Team and “provides a number of programmes and services specifically aimed at reducing re-offending through the use of tikanga Māori (customary Māori) concepts and values”.

In relation to the Treaty of Waitangi, the Committee asked the following:

What measures does the State party envisage taking to incorporate the Treaty of Waitangi in domestic law? Please indicate whether a mechanism to settle comprehensively land claims of indigenous peoples, consistent with the Treaty of Waitangi and with the Covenant rights, has been created. Please also indicate whether the Waitangi Tribunal has been provided with increased financial resources.

The response to that set of questions notes the incorporation of Treaty principles into specific pieces of legislation (such as the Conservation Act 1987, the Resource Management Act 1991, the Education Act 1989, and the Crown Minerals Act 1991). The response also points to the role of the Waitangi Tribunal and sets out information about the progress of the settlement of claims made under the Treaty of Waitangi. In order to address the particular question about the resourcing of the Waitangi Tribunal, the response states “The Waitangi Tribunal received an increase in funding in 2007 and its current total operating expenditure is $12.15 million. The Government is satisfied that the current level of funding is sufficient for the Tribunal to carry out its functions”.

It will be interesting to see what further comment the Human Rights Committee will choose to make on these and other issues. In any case, unlike Professor Paul Moon, I think it is extremely beneficial for the Committee to bring attention to these issues and to expect New Zealand to implement measures that give full effect to internationally recognized human rights.

Justice and 'special treatment'

2010-03-06T10:29:00.000-08:00

At the recent ACT Party conference, Dr Muriel Newman delivered an address in which she suggested that the Party could help to heal “the racial divide” by opposing “Māori privilege”. It included the simplistic call for “one law for all” and explicitly recalled Don Brash’s 2004 Nationhood speech. As media commentator Russell Brown has pointed out on his blog, we should not be surprised to hear extreme views from Dr Newman. But there are strands of Dr Newman’s thinking that form part of the more mainstream discussion of Māori rights and Treaty of Waitangi issues that I think it would be helpful to address.

For example, there seems to be a broad consensus in New Zealand that it is fair to provide redress for historical breaches of the Treaty of Waitangi. But this often comes with the qualification (implicit or explicit) that once historical claims are dealt with we can put all this Treaty business behind us. Any continuing recognition of distinct Māori or Treaty rights would not be “one law for all” and would be, exactly as Drs Newman and Brash have articulated, an unacceptable “Māori privilege”. It was precisely this sentiment that led the previous Government to back away from its ‘Closing the Gaps’ policy. The same sentiment was at the heart of the Prime Minister’s Waitangi Day speech. That speech was entitled ‘Beyond Grievance’ and repeatedly referred to the theme of ‘moving on’, once fair settlements for historical claims have been concluded. As I have noted previously, achieving just and durable settlements expeditiously is to everyone’s advantage. But removing the sense of grievance associated with historical wrongs does not end the Treaty relationship nor remove the ongoing obligations of the Treaty partners to each other. Yet according to the Prime Minister, only an extremist intent on division would suggest that the Treaty should play a continuing role in decision-making and the exercise of public power.

The difficulty with that approach is that it relies on a very narrow view of justice. In this context it is useful to consider the work of the feminist theorist, Nancy Fraser, who, in her 1997 book, Justice Interruptus, explored the connection and tension between the need to address different types of injustice in reparations and reconciliation processes. Fraser argues that justice requires both economic equality and cultural recognition and has considered ways in which these two objectives of justice can be integrated. Fraser distinguishes between these two justice objectives, or, as she describes them, ‘socioeconomic’ justice and ‘cultural-symbolic’ justice.

Fraser conceptualizes socioeconomic injustice, in a general sense, as “informed by a commitment to egalitarianism”. It is injustice that derives from the “political economic structure of society” and includes all forms of economic exploitation, marginalization, and dispossession. On the other hand, cultural-symbolic injustice is more closely associated with identity-based claims. Fraser identifies cultural-symbolic injustice as being rooted, not in political-economic structures, but rather in “social patterns of representation, interpretation, and communication”. This type of injustice is connected to cultural domination, disrespect, nonrecognition, misrecognition, and denial of recognition.

Fraser sees the distinction between socioeconomic injustice and cultural-symbolic injustice as vitally important because the strategies that are employed to address one type of injustice are often in conflict with strategies that address the other form of injustice. One form of injustice requires redistribution, a leveling of the playing field to achieve a kind of ‘sameness’, while the other form of injustice calls for measures that recognize difference. This is particularly important to understand in the context of Indigenous Peoples’ justice claims because Indigenous Peoples tend to have simultaneously experienced both types of injustice. For example, Māori communities have suffered socioeconomic injustice by being dispossessed of much of their lands and natural resources. They have also suffered cultural-symbolic forms of injustice by the implementation of legislation and policies that have prohibited their cultural practices and had serious and detrimental effects on their language.

In other words, dealing with historical Treaty breaches is only one part of the justice equation. If the agreements which settle historical Treaty claims are to be just and durable and contribute to genuine reconciliation then they must be coupled with measures which address the ongoing role of the Treaty in New Zealand public life. Which is why it would be unfortunate if such measures continue to be characterized as some form of ‘Māori privilege’ or ‘special treatment’. Far from healing racial division, such a characterization seems more likely to undermine the reconciliation project.

Treaty Settlements in Tāmaki Makaurau

2010-02-20T09:55:00.000-08:00

Over the past few weeks, there has been quite a bit of media coverage of agreements reached in relation to the settlement of Treaty of Waitangi claims in the Auckland region. As might be expected, the New Zealand Herald has shown particular interest in these agreements and this weekend added some useful contextual detail about the process that has led to agreement being reached. That process has negotiated some complex issues and has at times been somewhat fraught. All those who have worked to reach these agreements ought to be applauded for their hard work and the immense good-will that has been demonstrated.

As has been mentioned in much of the coverage of these agreements, the Waitangi Tribunal’s Tāmaki Makaurau Settlement Process Report also played a role in shaping the process of settlement negotiation in Auckland. I thought it might be useful to revisit some of the key findings of that report in light of the recent agreements.

The 2007 Tāmaki report was the result of claims made to the Waitangi Tribunal that the process which the Crown had undertaken to negotiate the settlement of Ngāti Whātua o Ōrākei’s claims were prejudicial to other Māori groups in the Auckland region.

A key theme of the Tribunal’s Tāmaki report is the importance of whanaungatanga (relationships). The report begins by explaining the connection between whanaungatanga the Treaty guarantee of tino rangatiratanga and notes:

One of the most devastating consequences of the failure to give effect to the guarantee of te tino rangatiratanga has been the breakdown of Māori social structures – the structures that created and expressed whanaungatanga.

The Tribunal considered that, in achieving an agreement in principle with Ngāti Whātua o Ōrākei, the Crown had jeopardized relationships between other tangata whenua groups and the Crown, and between other tangata whenua groups and Ngāti Whātua o Ōrākei. This was despite previous reports where the Tribunal had addressed similar issues and expressed serious concerns about the Crown’s Treaty settlement process, even though, in those cases, the Tribunal had ultimately determined that it would be unfair to the groups in negotiation with the Crown to halt their settlements.

In the Tāmaki report, the Tribunal found that the Office of Treaty Settlements had misconceived its task by: focusing exclusively on its relationship with Ngāti Whātua o Ōrākei at the expense of other relationships; casting other tangata whenua groups in the role of only ‘interested parties’, and; viewing Treaty negotiations as analogous to any other commercial negotiation, rather than being a negotiation that is “quintessentially about restoring damaged relationships”. The Tribunal further suggested that the Crown’s lack of engagement with other tangata whenua groups was contrary to tikanga Māori, yet the need for officials “to be aware of, and comply with, tikanga Māori in their dealings with Māori is another aspect of partnership under the Treaty”.

Though it was not only the Crown’s settlement process that was problematic. The Tribunal expressed concern about the substance of the proposed settlement as well. There are many examples of this that are cited in the report, but to take just one, the Tribunal noted:

The question that the Office of Treaty Settlements posed itself in order to decide whether to grant exclusive redress to Ngāti Whātua o Ōrākei with respect to maunga was whether Ngāti Whātua o Ōrākei’s were the predominant interests in the maunga. We think this is often the wrong question where cultural redress is concerned, but always the wrong question where there are multiple interests in maunga. That is because maunga are iconic landscape features for Māori. They are iconic not because of their scenic attributes, but because they represent an enduring symbolic connection between tangata whenua groups and distinctive land forms. Sometimes, these land forms are the physical embodiment of tūpuna. Thus, associations with maunga are imbued with mana and wairua that occupy the spiritual as well as the terrestrial realm. Maunga express a group’s mana and identity.

The recent settlement agreements suggest that the Crown have taken on board many of the Tribunals findings and recommendations relating to the process and the substance of Treaty settlements in Auckland. But it is worth recalling the Tāmaki report because it is a reminder both that a narrow focus on achieving speedy settlement agreements can damage the wider project of reconciliation, and that the Waitangi Tribunal continues to play a crucial role in that project of reconciliation.