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2020 Vision - Labour's Treaty Settlement Policy

The Labour Party has released its Māori Development policy that includes their intention to ensure that all historical Treaty settlements are completed by 2020. The National Party had previously set a target of 2014 to have Deeds of Settlement completed with all outstanding groups. This target will not be met despite the accelerated speed of settlements under the current government. Keeping in mind that speed is not, of course, equivalent to quality, it should be obvious that nobody is more anxious to complete just and durable settlements than those whose claims are to be settled. I am, nonetheless, cautious about the way in which these targets are articulated. Such targets may be beneficial if they signal that a high priority is to be placed on the resolution of these issues and resources are to be directed to the claims and settlement process accordingly. However, they can be problematic if the intention is to simply impose a deadline for political reasons. In that case it may merely act as one more unilaterally imposed constraint on the settlement process which ultimately undermines both their justice and durability (which I would argue are both fragile enough as it is).

In its Strategic Direction paper released last month, the Waitangi Tribunal is also aiming to complete its inquiries into historical claims by 2020. In that document, covering the period 2014-2025, the Tribunal sets out five categories of claims to assist it to prioritise work according to its strategic objectives:

1. Final district inquiries and remaining historical claims (to be completed by 2020);
2. High priority kaupapa claims [thematic claims, often related to a contemporary policy issue, often of national significance] (to be progressed by 2020);
3. Remaining kaupapa claims [especially those with a historical grievance not addressed by the settlement process] (to be substantially advanced or completed by 2025);
4. Address the backlog of contemporary claims (by 2025); and
5. Address urgent claims arising from Treaty settlement processes and any kaupapa or contemporary claims granted urgency (to be dealt with urgently as they arise).

Although the 2020 timeframe is the issue that has gained media attention, this timeframe has been announced by Labour as part of a much wider Māori Development policy. Even within the section on the Treaty of Waitangi, there are many more interesting measures proposed. Amongst other things, Labour proposes to:

• implement a Treaty education programme for stakeholders and communities

• continue to work with hapū and iwi on innovative redress models to best reflect the nature of their claims under the Treaty of Waitangi

• review the various mechanisms that give effect to the Crown’s ongoing obligations arising from the Treaty settlement process – the intent will be to report on the implementation of such commitments.

• review the role and function of the Waitangi Tribunal once historical treaty claims have been settled, recognising that the inherent nature of the Tribunal has been to consider the way in which the Crown has upheld its obligations as a Treaty partner.

 There is also a section on post-settlement relationships in which Labour commits to:

• work in partnership with hapū and iwi to develop relevant Governance frameworks that recognise the unique collective feature of tribal wealth and resources

• consider the active partnership opportunities that can be forged with iwi on projects of national significance

• work with hapū, iwi and Māori to quantify the contribution of its economy on real growth and productivity predictors that inform its economic policy

• work in partnership with Māori to develop a unique export trade window that platforms industry participation in niche markets

• consider Māori business and services equally in the tendering and procurement of services in its regional economic growth initiatives.

 Importantly, the policy recognises the ongoing obligations that the Crown has, not only in the implementation of Treaty settlements, but, more broadly, as a result of the continuing Treaty partnership. This is important because the Treaty of Waitangi created a relationship that will continue to exist beyond 2020, whether all historical claims are settled by that date or not.

Ka Mate, Ka Mate; Ka Ora, Ka Ora

A few weeks ago, the Haka Ka MateAttribution Act 2014 was passed into law. This Act gives effect to provisions contained in the Ngāti Toa Rangatira Deed of Settlement that relate to the haka Ka Mate. Composed by the Ngāti Toa leader Te Rauparaha, Ka Mate has evolved into something that is seen as a national haka, performed by many of New Zealand’s national sporting teams.

As the statement of association set out in the Act makes clear, although Ka Mate is perceived as being symbolic of New Zealand identity, Ngāti Toa see this haka as being inextricably bound up with their own tribal identity:

The haka Ka Mate is regarded by Ngāti Toa Rangatira as one of the legacies of Te Rauparaha. Given the role of Te Rauparaha in Ngāti Toa Rangatira history, the connection between Ngāti Toa Rangatira and the haka Ka Mate is significant, and it forms an integral part of Ngāti Toa Rangatira history, culture, and identity.

 The Act (and the provisions in the Deed of Settlement that it implements) is designed to address long-standing concerns Ngāti Toa have had about the performance and use of Ka Mate.  The Tribunal heard evidence relating to Ka Mate in its Wai 262 inquiry and in Ko Aotearoa Tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity (2011) the general thrust of Ngāti Toa’s concerns were outlined as follows:

Te Ariki Kawhe Wineera, a direct descendant of Te Rauparaha, is concerned about the misuse of Ka Mate in various New Zealand and overseas commercial ventures. While some renditions of the haka are respectful, many simply ignore the cultural values inherent in the composition, and some are unquestionably offensive – including, for example, an Italian television advertisement for Fiat cars in which a group of women perform a mock haka. Mr Wineera wishes to protect the integrity of Ka Mate, as well as the values that underlie it. He also wishes to ensure that in circumstances where Ka Mate is performed respectfully and with the consent of his iwi, Ngāti Toa receives at least some of the commercial benefits that might flow from that use. He argued that Ngāti Toa’s kaitiakitanga [guardianship] in respect of Ka Mate should be recognised in law.

 In this Act, the Crown acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira and as an integral part of their history, culture and identity. The Act also provides that any publication of Ka Mate for commercial purposes and communication of Ka Mate to the public must include a statement that Te Rauparaha was the composer of Ka Mate and a chief of Ngāti Toa Rangatira. This legislation will be reviewed after 5 years of enactment to consider whether the interests of Ngāti Toa Rangatira relating to Ka Mate are sufficiently protected.

One thing that is obvious but interesting in the case of Ka Mate is that Ngāti Toa are not attempting to prevent the haka being performed, but rather wish to ensure that its integrity is maintained and that the mana of Te Rauparaha and Ngāti Toa are acknowledged. According to media reports, Ngāti Toa have good relationships with the NZ Rugby Football Union, other national sports teams, and institutions such as the army and police who use Ka Mate.

This Act responds to some of the particular issues faced by Ngāti Toa in relation to Ka Mate. However, these issues around Ka Mate also point to some of the wider questions about the protection of traditional knowledge within the context of an intellectual property rights system primarily designed to address other types of issues.

Year 174

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

The year in reviews

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

The Constitution Conversation

Perhaps most significantly, the Constitutional Advisory Panel's report was released. The Panel's terms of reference specifically directed it to consider two areas that specifically relate to Māori:

• The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); 
• and Māori electoral representation.

The Panel has recommended that the Government:

• continues to affirm the importance of the Treaty as a foundational document
• ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
• supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
• sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and arrangements in which the Treaty is the foundation
• invites and supports the people of Aotearoa New Zealand to continue the conversation about the place of the Treaty in our constitution.

 As I noted at the time the Panel’s report was released, I am not sure that this really takes us much further in the constitutional conversation, though I believe the Panel was always going to be constrained in its recommendations because of its narrow terms of reference and its politicized origins.

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

Te Ture Whenua

Te Ture Whenua Māori Act 1993, which is the key piece of legislation that regulates Māori land, was also the subject of a government review this year. A four-person panel sought feedback in April 2013 on five key propositions:

Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged ownersAn engaged owner is defined as an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee. Engaged owners should be able to make decisions (excluding sale or other permanent disposition) without the need for endorsement by the Māori Land Court.
 Proposition 2: All Māori land should be capable of utilisation and effective administrationWhere owners are either not engaged or are unable to be located, an external manager
or administrator may be appointed to manage under-utilised Māori land. The Māori Land Court should have a role in approving the appointment and retaining oversight of external administrators.
 Proposition 3: Māori land should have effective, fit for purpose, governanceThe duties and obligations of trustees and other governance bodies who administer or manage Māori land should be aligned with the laws that apply to general land and corporate bodies. There should be greater consistency in the rules and processes associated with various types of governance structures.
 Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputesDisputes relating to Māori land should be referred to mediation in the first instance. Where the dispute remains unresolved following mediation, it may be determined by the Māori Land Court.
 Proposition 5: Excessive fragmentation of Māori land should be discouraged.Succession to Māori land should be simplified. A register should be maintained to record the names and whakapapa of all interests in Māori land, regardless of size.

When originally established, the panel was due to report to Government by December 2012. These timelines were extended, but there have been no public announcements on this matter since submissions closed over six months ago.

The  New Zealand Māori Council

The Government also initiated a review of the Māori Community Development Act last year. This is a significant piece of legislation in the context of the Treaty relationship because it is the Act that governs the New Zealand Māori Council and the Māori Wardens. A discussion paper was released in August 2013 presenting two broad options for the future of the New Zealand Māori Council:

• A new refocused national Māori organisation – concentrates on social and economic issues that impact on community development for all Māori; membership, direction and priorities mandated by the community, with robust and transparent measures designed to ensure accountability to Māori; legislation will need to be amended to remove outdated statutory responsibilities; or
• No change – New Zealand Māori Council continues along with the existing statutory responsibilities as outlined in the 1962 Act to:
• consider and discuss matters relevant to the social and economic advancement of Māori;
• promote, encourage and assist Māori to conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being; and
• collaborate with government departments on employment, education, training, housing and health. 

The paper also sought feedback on the structure of the New Zealand Māori Council and the roles and responsibilities of Māori Wardens and proposals to re-establish Community Officers. Members of the New Zealand Māori Council filed a claim with the Waitangi Tribunal alleging that the process that the Crown had adopted for reviewing this important piece of legislation was in breach of the principles of the Treaty. In December 2013, the Waitangi Tribunal agreed to convene an urgent hearing to hear some aspects of the New Zealand Māori Council’s claim.

  

Treaty settlements

Not only has this been another busy year for groups involved in Treaty settlements, but there have also been some major developments in this area. The number of agreements signed and the progress of settlement legislation through Parliament gives a clear indication of the work taking place in this sector. In a summary written for the Māori Law Review of settlement legislation before the House in 2013, I noted:

Co-governance was a strong theme in settlement legislation this year.  Many bills, especially those dealing with highly-prized waterways or other natural resources, appear to be drawing on some of the core ideas from the Waikato River Settlement.  The Ngāti Hauā and Ngāti Koroki-kāhukura bills directly extend the Waikato River co-management regime.  A number of the bills currently before the House include provision for co-governance mechanisms, not only between Māori and the Crown, but between two or more Māori communities.  Perhaps the most striking example of the creative possibilities of co-governance models is the approach adopted in the Te Urewera-Tuhoe Bill.  In that instance, a governance board is established with members appointed by Tūhoe and the Crown to act on behalf of Te Urewera itself.  And there is also provision within that Bill for other iwi’s interests within Te Urewera.  As this example illustrates, along with many of the other settlement bills introduced this year, Treaty settlements almost always need to take account of complex and inter-locking rights and interests.  The settlement legislation this year covers areas such as the Waikato, Rotorua, and Te Tau Ihu where these inter-locking interests are evident and as more and more settlements are completed we are beginning to see an increasing amount of ‘cross-referencing’ that attempts to capture this complexity.

The arrangements in relation to Te Urewera are amongst the most notable developments in the Treaty settlement arena. As described in the Māori Law Review summary of the Te Urewera-Tuhoe Bill, the key mechanisms are as follows:

Te Urewera is declared to be a legal entity, having all the rights, powers, duties and liabilities of a legal person. The Bill provides that Te Urewera establishment land will no longer be vested in the Crown but will instead will be inalienable and vest in Te Urewera itself.  The rights, powers and duties of Te Urewera are to be exercised on its behalf by a governance body to be established by the Bill, known as Te Urewera Board.  The Board is to provide governance for Te Urewera by undertaking functions such as preparing and approving a management plan for Te Urewera, monitoring the implementation of that plan, making bylaws for Te Urewera, promoting and advocating for the interests of Te Urewera in statutory processes, and a range of similar activities. The Board will initially consist of four members appointed by the trustees of Tūhoe Te Uru Taumata and four members appointed by the Crown.  From the third anniversary of the settlement date, the Board will consist of six members appointed by the trustees of Tūhoe Te Uru Taumata and three members appointed by the Crown. The chief executive of Tūhoe Te Uru Taumata and the Director-General of Conservation will be responsible for the operational management of Te Urewera in accordance with the plan and priorities adopted by the Board.

Water and State-Owned Enterprises

One of the more high-profile Treaty-related developments of 2013 came near the start of the year when in February the Supreme Court issued its decision in New Zealand Māori Council v Attorney-General and dismissed the Māori Council’s appeal in relation to the proposed partial privatisation of Mighty River Power. This meant that the Government could proceed with the sale of shares in Mighty River Power, but the decision also reinforced Treaty principles.  As I noted at the time:

Even though the outcome of the Supreme Court decision is the same as the outcome of the High Court decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s reasoning.  Justice Young found that the proposed sale of shares in Mighty River Power was not subject to an action in judicial review that is based on consistency with the principles of the Treaty of Waitangi.  However, the Supreme Court disagreed, drawing for support on the approach of the Court of Appeal in the 1987 SOE case: 

The Court of Appeal’s recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Māori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses. In re-enacting the identical provision to act consistently with Treaty principles, in the mixed ownership companies legislation, Parliament’s purpose is that the Treaty provisions in Part 5A carry the broad meaning, and be given the broad application reflected in the judgments of the Court of Appeal concerning s 9 in the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same interpretation as s 9 of the State-Owned Enterprises Act has received, particularly from the Court of Appeal in the SOE case, and also from the Privy Council in New Zealand Māori Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance. It is on that basis that we address the arguments of counsel concerning the legislation.

Consequently, the Supreme Court determined that decisions in relation to the sale of shares in Mixed Ownership Model companies can be challenged on the basis of inconsistency with the principles of the Treaty of Waitangi.  This is, I think, an important re-strengthening of Treaty principles.

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

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

Steps towards a bicultural legal system?

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

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

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

As I noted in the Māori Law Review report on the Bill:

The Māori Affairs Select Committee supported the request of te whānau a Mokomoko to amend the bill by having a full Te Reo Māori translation included.  The Select Committee report noted that translating the legislation before enactment would have the legal impact that the English and Te Reo Māori versions would be considered equal and the Committee commented on the positive impact that the dual translation could have on future legislation.

And this was also in a year in which two important books were published that speak directly to the bicultural dimensions of our legal system. The first is Te Mātāpunenga: A Compendiumof References to the Concepts and Institutions of Māori Customary Law. The second is He Papakupu Reo Ture: A Dictionary of Māori Legal Terms. Both are significant resources that are set to make an important contribution to the way in which New Zealand law approaches Māori issues.

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

Advisory panel report hardly furthers 'constitutional conversation'

Yesterday the final report of the Constitutional Advisory Panel was released by the responsible Ministers.  It is difficult to see what the report adds to a process of constitution-building in Aotearoa. The report mostly identifies that there are a range of opinions on various technical issues and that more public education about constitutional and civic matters is necessary.  This is hardly news. I should add that I do not intend this as any criticism of the Constitutional Advisory Panel itself. The terms of reference that were set for the Panel virtually ensured that this would be the case.

The Panel deals with two areas that specifically relate to Māori:

• The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); and
• Māori electoral representation.

In both areas, the Panel’s report identifies that there are effectively three options: Strengthen or enhance the existing mechanisms, maintain the status-quo, or remove the existing mechanisms. 

In the case of the Treaty the Panel’s report describes two models that would strengthen, to various degrees, the role of the Treaty in our constitution (‘A Treaty-based constitution’ and ‘Take active steps to accommodate Treaty rights and obligations’), one model that effectively represents the status quo (‘Maintain development of existing arrangements to accommodate Treaty rights and obligations’), and one model that removes the Treaty altogether (‘A constitution without the Treaty’):

A Treaty-based constitutionOne option discussed in the Conversation was to discuss placing the Treaty and Treaty relationships at the centre of our constitutional arrangements, rather than attempting to graft them onto existing Westminster arrangements. Models could be drawn from previous attempts by Māori to establish autonomous structures and from a range of international examples including Canada, Bolivia, Norway and the United Kingdom. Take active steps to accommodate Treaty rights and obligationsA range of different options to more proactively recognise the Treaty within the existingconstitutional arrangements were raised during the Conversation, including:

• confirming the Treaty as a tool for interpretation, rather than having legal or constitutional force. For example, the Treaty might be added to or referred to in a preamble to the Constitution Act 1986
• making the Treaty one of the standards for good process – the courts could test process rather than outcomes against the Treaty
• making consistency with the Treaty a required consideration in all legislation and government action, for example by making the Treaty supreme law, perhaps along with the rights in the Bill of Rights Act 1990.
• The requirements could be given force by: 

• establishing a dedicated Treaty court, or increasing the jurisdiction of the Waitangi Tribunal or the general courts, with powers to assess whether legislation is consistent with Treaty principles 

• creating an upper ‘Treaty’ house in Parliament with 50% Māori membership 

• entrenching Treaty rights to reduce their vulnerability to change.

 Maintain development of existing arrangements to accommodateTreaty rights and obligationsThis option would preserve the current institutions and mechanisms of government. Most Treaty matters would be settled by negotiation between the Government and iwi as the need arises, with the ability to refer specified issues to the courts for resolution if necessary. 

This option may be supported by people who see the principles and text of the Treaty as important elements of the constitution but do not consider the Treaty discourse is fully developed enough to include it in a written constitution. In the conversations, some Māori supported this view on the basis that the Treaty is sacrosanct and should be left alone. It would sit outside the legal system in much the same way as does the American Declaration of Independence in relation to the American Constitution, yet its principles inform the development of the law and the nation’s constitutional values. A constitution without the TreatyThe Panel acknowledges that many New Zealanders remain sceptical that the Treaty can be a constructive element of our constitution and so may be reluctant to participate in a conversation about its future. Based on the Conversation, however, the Panel believes it is not viable to wind back the clock. The Treaty is already a fundamental element of our constitutional arrangements. It would be unfair, unjust and unrealistic to go back on the commitments made to iwi and hapū by successive governments. Nor do the arguments of equality put forward by some proponents of this view sufficiently acknowledge the diversity of this country’s people. The Treaty is not inherently divisive – its purpose was to establish a relationship between two peoples in one nation. Any divisions arise from a failure to meet those obligations, not from meeting them. The question is not just whether the Treaty is part of the constitution, but how it is best reflected and what we want to achieve by reflecting it. The Crown cannot turn back on the commitments made in the Treaty and subsequently without the risk of social and political tensions. Any decisions made in such a crisis situation are unlikely to be enduring.

This leads the Panel to make the following recommendations:

The Panel recommends the Government:·      continues to affirm the importance of the Treaty as a foundational document
·      ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
·      supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
·      sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and
arrangements in which the Treaty is the foundation·      invites and supports the people of Aotearoa New Zealand to continue the
conversation about the place of the Treaty in our constitution.

I have no problem with the Panel addressing these models at a relatively high-level and I am pleased to see that the Panel confirmed that the Treaty does have a place within our constitutional arrangements.  However, I fail to see how the report’s observations or the bland recommendations that have been proposed take us any further forward in a constitutional conversation than we were a year or so ago - or even ten years ago, for that matter.