Monday, February 28, 2011

Special Rapporteur Report: Treaty settlements

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. 

Saturday, February 19, 2011

Māori Affairs Select Committee Report on Marine and Coastal Area Bill

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.

Sunday, February 6, 2011

Year 171

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 171st 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 172nd 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.