Sunday, February 21, 2010

Treaty Settlements in Tāmaki Makaurau

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.

Tuesday, February 16, 2010

Inter-American Commission on Human Rights to consider indigenous land rights in BC

I’ve just recently caught up with an interesting decision from the Inter-American Commission on Human Rights (IACHR) that was delivered towards the end of last year and which relates to the British Columbia Treaty process.  The case was brought by the Hul’qumi’num Treaty Group who represent six First Nations in treaty negotiations with the provincial government of British Columbia and the federal government of Canada. The IACHR has not yet dealt with the substantive issues raised by the Hul’qumi’num Treaty Group.  This decision only deals with the question of the admissibility of the case, simply determining that the IACHR will hear the case.  But this, in itself, is an important step and the reasoning of the IACHR is significant.

The IACHR is an autonomous branch of the Organization of American States and receives cases (in the form of ‘petitions’) that allege violations of human rights that are protected in the American Declaration of the Rights and Duties of Man or the American Convention on Human Rights.  Canada is a member of the Organization of American States and, having ratified the Charter of the Organization, is subject to the jurisdiction of the IACHR.

The Hul’qumi’num Treaty Group allege that Canada is in breach of its human rights obligations, primarily, under various articles of the American Declaration of the Rights and Duties of Man.  Those articles are:  Article XXIII (right to property); Article XIII (right to culture), and Article II (equality before the law).  The petition alleges that the rights of the Hul’qumi’num Treaty Group have been breached because of “the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for [the Hul’qumi’num Treaty Group] ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the [Hul’qumi’num Treaty Group] consider sacred”. 

As noted above, the IACHR has yet to consider the substance of those allegations.  But its decision to admit this case is significant, in particular, because of the IACHR’s approach to the question of whether all domestic remedies have been exhausted. As is common with other international bodies, the IACHR will not admit cases if there issues can be reasonably addressed by the domestic courts or through some other process in place within the country’s own legal system.  In this case, the Canadian government argued that the Hul’qumi’num Treaty Group had not yet explored all possible avenues to address there concerns within the Canadian legal system.  Therefore, these issues could not yet be considered by an international body such as the IACHR.  However, the IACHR disagreed.
The Canadian government argued that the Hul’qumi’num Treaty Group’s ongoing engagement with the British Columbia Treaty process was the ideal process for addressing their claims in relation to territorial rights.  But the IACHR note that this process has not allowed negotiations on the subject of restitution or compensation for lands now in private ownership, and such lands make up 85% of the Hul’qumi’num Treaty Group’s traditional territory.  The Hul’qumi’num Treaty Group have been involved in the treaty negotiation process since 1994 and their central claims have not yet been resolved.  The IACHR, therefore, found that this process was demonstrably not an effective mechanism for protecting the rights at issue in this case.

The Canadian government also pointed to a range of proceedings that the Hul’qumi’num Treaty Group could pursue through the courts, including actions to obtain recognition of aboriginal title, actions under the provisions of the Canadian Charter of Rights and Freedoms, applications for judicial review, and petitions under heritage legislation demanding that the Crown fulfill its obligations to conduct prior consultation with indigenous peoples.  To support this argument, the Canadian government points to judgments from the Canadian courts which have recognized the existence of aboriginal title and the right to consultation. However, the IACHR notes that the experience of other indigenous groups has shown that none of those judgments has resulted in a specific order mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands.

Consequently, the IACHR found that there were no domestic remedies that provided the Hul’qumi’num Treaty Group with any reasonable expectation of successfully being able to protect the rights in question.  The IACHR will therefore proceed to consider the substance of the case.  The Hul’qumi’num Treaty Group is hoping for a decision on the substantive issues sometime this year.  That decision could have significant implications for the treaty process and I am sure that many people involved in the process will be awaiting the outcome with interest.

Wednesday, February 10, 2010

Framing the Foreshore and Seabed Issue

The foreshore and seabed issue has popped up in the media a few times over the last week.  The Prime Minister and Hone Harawira both commented on the issue at Waitangi. There has also been media comment relating to an analysis of the issue in a PR firm’s newsletter and a set of proposals that appear to have formed part of the discussions between iwi leaders and the Government, which were leaked last week.
Let’s consider the analysis in the widely-circulated newsletter first.  We should remember that this analysis is not a neutral and objective assessment of the issue.  It has been produced by a PR company that is run by Matthew Hooton, someone who is well-known for his close connections with the National Party.  So we should be aware that this newsletter has been produced with the intention of influencing the way this issue is framed.  We can certainly take with a grain of salt the commentary about how the National Party and the media shouldn’t be held accountable for the spread of misinformation, fear, and prejudice in the wake of the Ngāti Apa decision.  Those parties need to take responsibility for their own actions, just as the previous Government must take responsibility for passing the Foreshore and Seabed Act.  And the suggestion that Don Brash’s personal road to Damascus experience is due to the fact that he now has a better understanding of the issue, and is not instead due to changing political imperatives, is absurd.  But that assertion does assist with framing the issue as one that is confined to matters of process.  The problem is that there is more to the foreshore and seabed issue than that.
The denial of due process is certainly one of the most outrageous aspects of the Foreshore and Seabed Act.  But simply returning these matters to be addressed by the courts on a case by case basis will not necessarily provide the best, or a complete, resolution of all the relevant issues.  The Waitangi Tribunal found that maintaining the position that existed following the Ngāti Apa decision would certainly have been more consistent with Treaty principles than the policy that underlies the Foreshore and Seabed Act.  But the Tribunal also recognised that such an approach would inevitably leave some uncertainty around rights in the foreshore and seabed while cases worked their way through the courts.  The Tribunal did not consider this to be overly problematic, but the Crown argued that this was the primary reason why it considered that it was necessary to enact the foreshore and seabed legislation. The Tribunal also noted the strong preference of the claimants in that inquiry was for a negotiated solution, similar to the Sealord deal in relation to customary commercial fishing rights, and suggested that this would be the only approach that was fully compliant with Treaty principles:
In putting forward the options, we note up front that full compliance with the Treaty would require the Crown to negotiate with Maori and obtain their agreement to a settlement, as happened with respect to commercial fishing and Rotorua lakes. All the other options involve a compromise between Treaty principles, claimant preferences, and what the Government might regard as practicable. They are, to borrow Professor Mutu’s phrase, ‘least worst’ options.
The Ministerial Review Panel also noted that, along with the cost and uncertainty of leaving these issues to be resolved on a case by case basis a simple application of common law rules to Māori customary interests seems unlikely to assist with wider objectives in relation to the management of the foreshore and seabed:

But there would be disadvantages. It would mean that rights in the foreshore and seabed would have to be litigated on a case by case basis over a long period of time. Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. There is also the question of what legal rules should govern this process. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Māori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.
If the problems with the Foreshore and Seabed Act are conceptualized as being only about due process, then it is certain that many problematic issues will remain unresolved.
While Matthew Hooton’s newsletter seems to have been adopted by the media as an unbiased explanation of the issues, the leaked proposals have been characterized as part of some Machiavellian scheme.  It seems as though the impression we are supposed to draw is that the extremists are trying to force these totally unacceptable ideas on the agenda.  But, I can’t quite work out why these suggestions are so unpalatable.  They are quite expressly premised on meeting, not only the interests of iwi and hapū, but also the Crown’s political imperatives.  The proposals are based on the idea that the replacement framework needs to:
  • Be consistent with iwi/hapū world view that places taonga status of foreshore and seabed at the centre (i.e. environmental sustainability is the priority)
  • Provide for tikanga to be an operative source of the law;
  • Allow for flexibility for iwi/hapū specific aspirations/realities to be reflected;
  • Increase the decision making role and autonomy of iwi and hapū;
  • Not ‘look and feel’ like the 2004 Act;
  • Satisfy the Crown’s political imperatives.
The leaked document identifies the Crown’s political imperatives as being:
  • Rebalancing interests (a recognition that the 2004 Act struck an inequitable balance which should be redressed);
  • Environmental sustainability
  • Integration with existing statutory matrix
  • Efficiency (not increasing overheads, costs or red tape)
  • Appropriate economic development
  • Certainty and clarity
  • Protection of existing rights/interests (including access)
Now, I’m not saying that the proposals in the leaked document necessarily provide the most effective mechanism to address these interests, nor would I suggest that the current process for developing an alternative to the Foreshore and Seabed Act is ideal in the way that it seems to be centered around the Iwi Leadership Group’s concerns.  But, I am interested in the way that this document has been written off by the Government (and the media).  If the leaked document does not accurately reflect the Government’s interests, I’d like to know exactly what the Government’s interests really are.  And if the leaked document has captured the Government’s interests accurately, I’d like to know why the Government considers that its interests are not met by these proposals.

Saturday, February 6, 2010

Year 170: Review

Over the past month or so, I’ve posted a number of brief entries on this blog that consider the Treaty dimensions of a number of key issues that have arisen over the last year.  As I noted in my very first post, it seems appropriate to me that 6 February should also be an opportunity, not only to recall the foundation of the Treaty relationship, but also to take stock of how well that relationship has been nurtured during the past 365 days.  So, now that 6 February is here, I thought it might be useful to sum up with an overview of the 170th year of the Treaty of Waitangi.

In considering the health of the Treaty relationship, we should think about what that relationship entails.  At the heart of the Treaty relationship sit the two grand concepts of ‘kawanatanga’ and ‘tino rangatiratanga’ – each embodying powerful elements of law-making and governing authority.  There has been much debate about the precise meaning of each of these terms, but the essence of the Treaty agreement can be seen as the recognition of both the authority of the Crown (kawanatanga) and the authority of Māori (tino rangatiratanga).  The courts and the Waitangi Tribunal have elaborated principles of the Treaty, which help to identify ways that the Treaty partners may fulfill that essential agreement.  Many New Zealanders will have heard reference to the Treaty principles of partnership, good faith, reasonableness, co-operation, active protection of matters within the scope of the Treaty guarantees, and the duty to provide redress if Treaty obligations are breached.

Understood in those terms, we can see that the Treaty relationship has had something of a mixed year.  There have been signs of promise and some encouraging symbols of a healthy Treaty relationship.  Though, ultimately, it appears that symbolism has won out over substance in relation to Treaty issues during the last year.

The decision to fly a Māori flag at various official sites on Waitangi Day is one example of this symbolism over substance.  No matter what Hone Harawira says, the flag that was chosen as a result of the consultation on the subject is popularly known as ‘the tino rangatiratanga flag’.  This can be seen as symbolic recognition of the partnership and the rights that are confirmed in the Treaty of Waitangi.  Which is good, as far as it goes.  But without real movement towards recognising tino rangatiratanga, the flag issue begins to look like a bit of a distraction. Symbols are important, but they will not sustain a Treaty relationship for long without the substantive measures to back them up.

The symbolism of the Prime Minister’s statement that the Foreshore and Seabed Act will “likely” be repealed must be seen as good for the health of the Treaty relationship.  And there might yet be some substantive progress on this issue too.  The report of the panel appointed to review the Act, which found that the previous Government’s foreshore and seabed policy was “simply wrong in principle and approach”, could provide a sound foundation for such progress.  Though no further action has been announced since the review panel reported over six months ago.

The transformation of local government in Auckland has been happening much more rapidly.  Though there is little to be seen in the handling of this issue that is positive for the Treaty relationship. The Government’s decision to not provide for specific Māori representation as part of these hugely significant reforms, contrary to the Royal Commission’s recommendations, and in the face of numerous Select Committee submissions and significant protest action, did not reflect the kind of partnership envisaged by the Treaty.  Neither, I would suggest, did the Government’s handling of the Rugby World Cup broadcasting rights issue.  In that case, the Government intervened to promote the interests of other broadcasters at the expense of the Māori Television Service, an organisation that was established to make good on Treaty of Waitangi obligations.

But perhaps the state of the Treaty relationship is best typified by the amendments to the Emissions Trading Scheme. In order to secure the support of the Māori Party for these amendments, the Government agreed to a number of measures, including inserting a Treaty clause in the legislation and making provision for groups whose Treaty settlements will be adversely affected.  It is absolutely right that the principles of the Treaty are acknowledged in this legislation and provision is made to protect the value of Treaty settlements.  But this seems to have come at a huge cost.  These changes to the ETS remove many of the incentives for large polluters to reduce their carbon emissions, which were originally part of the scheme. So, while the amendments provide some protection for particular Māori interests, the fundamental concept of tino rangatiratanga, which is so closely connected to relationships with the natural environment, is undermined because the health of the environment is itself undermined.

So it seems that there were some ups and downs for the Treaty in its 170th year. But, as always, the Treaty relationship gives us something to build on.  Let’s keep that in mind as we head into the 171st year.

Monday, February 1, 2010

Chris Finlayson on Treaty Settlements in Auckland

It was good to see the Minister for Treaty of Waitangi Negotiations, Chris Finlayson, today explaining in the Herald some of the key aspects of Treaty settlements and setting out the Government’s broad objectives in this area.  It is very helpful to have information about the Treaty settlement process made accessible.  It is also good to see the Minister emphasizing, in positive and optimistic terms, the importance of concluding Treaty settlements and redressing historical claims.
While I am pleased to see the Minister communicating this information to a wide audience, some of his underlying assumptions seem to me to be fundamentally problematic for his stated objective of achieving just and durable Treaty settlements.   In a previous post, I noted that the lack of attention to the justice of settlement agreements is ultimately detrimental to the durability of those settlements.  However, the conceptualization of the Treaty settlement process that the Minister has articulated appears to place little value on achieving justice.  Rather, the focus is on deal-making and reaching politically expedient agreements.  This might have little effect on the fairness and, consequently, the durability of settlements so long as the negotiation of settlement agreements took place between parties with roughly equal power and resources or if there existed procedural safeguards to level the playing field.  This is not the case.  The Crown Forestry Rental Trust publication, Māori Experiences of the Direct Negotiation Process, shows that one of the concerns that has consistently been expressed by Māori groups is that the Treaty settlement is process is not really a ‘negotiation’ in any accurate sense of the word.  
As an example, the Minister says that:
Public access to natural resources is, and always will be, a bottom line for this Government. . . . Iwi are keen to get on with the business, the Crown is keen, and everyone agrees that public access can never be compromised.

I don’t know whether everyone really does agree that public access can never be compromised.  I certainly wouldn’t be very impressed if, contrary to an agreement we had struck, the government confiscated my land, profited from that confiscation for over 100 years, and then told me that I could have 2% of that land back, but that members of the public would also continue to use my land.  If public access is a bottom line for the Crown, what choice do iwi who want to settle their claims have but to agree?  I understand that achieving resolutions which are just, not only to Māori, but also to other New Zealanders, will, in some situations require measures such as a guarantee of public access. But just and durable settlements will not be achieved by the Crown making demands within a process where iwi who wish to settle their claims have no choice but to concede.  Quite simply, the primary concern in relation to Treaty settlements must be justice in both the process and the substantive outcome with regard to the particular circumstances of the historical injustice that the settlement is to address.