Thursday, June 30, 2011

Wai 262 Report to be released this Saturday

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.

Wednesday, June 15, 2011

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.

Tuesday, June 14, 2011

Taniwha, railroads, and consultation

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.

Tuesday, June 7, 2011

Haronga v Waitangi Tribunal (Supreme Court)

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:

  1. 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.
  2. 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.
  3. 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.