Monday, May 17, 2010

Waikato-Tainui Raupatu Claims (Waikato River) Act

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. 

Tuesday, May 4, 2010

Tuhoe Settlement Negotiations

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.