Thursday, February 28, 2013

Three quick points about yesterday’s Supreme Court decision

Yesterday the Supreme Court issued its decision in NewZealand Māori Council v Attorney-General and dismissed the Māori Council’s appeal in relation to the proposed partial privatisation of Mighty River Power. As has been widely reported, the result of the Supreme Court decision is that the Government can now proceed with the sale of shares in Mighty River Power.  There will no doubt be plenty of analysis and comment on this decision, but I just wanted to touch on three interesting points that struck me when I was reading the Court’s judgment.

Treaty principles reinforced
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 Maori 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 Maori 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.

Redress and material impairment
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.  The Court sets out its approach to this issue as follows:

As is apparent, we are prepared to accept that privatisation may limit the scope to provide some forms of redress which are currently at least theoretically possible. But in assessing whether this amounts to “material impairment”, regard must be had to (a) the assurances given by the Crown, (b) the extent to which such options are substantially in prospect, (c) the capacity of the Crown to provide equivalent and meaningful redress, and (d) the proven willingness and ability of the Crown to provide such redress.

I understand the Court’s view that most of the options for rights recognition and redress will still be at least theoretically possible after the sale of shares in Mighty River Power.  However, given that the sale of shares will rule out the possibility of at least some forms of redress that are currently possible (though perhaps unlikely), I wonder whether the agreement of Māori should be sought before those options are removed.  That approach would seem to me to be consistent with the way in which the protection mechanism was agreed between Māori and the Crown following the SOE case.  If, for example, the ‘shares-plus’ scheme was seen by Māori to be the only way of effectively recognising their interests in water bodies, is it consistent with Treaty principles for the Crown to give up its ability to provide that redress without at least entering into some discussion about the issue with Māori?

Which leads to the issue of consultation.  The Supreme Court accepted that consultation with Māori was necessary following the Waitangi Tribunal’s Freshwater report, but noted that consultation occurred and was adequate:

The fact that the Crown ultimately rejected the Waitangi Tribunal suggestion as inappropriate is not a basis from which it can be inferred that the consultation was empty or pre-determined. Indeed, this complaint is difficult to separate out from the substantive issue of Treaty compliance in the privatisation. If the Crown was justified in considering that the privatisation did not set up an impediment to recognition of Maori interests in water, it is difficult to infer that the consultation was inadequate simply from the fact that the idea of “shares plus” was rejected and there was no change in the Crown’s proposal as a result. For these reasons, we consider there is nothing in the consultation point that is not resolved with the substantive issue of whether the sale of shares was consistent with the principles of the Treaty.

As I have noted previously (see here and here), I have had real concerns about the way in which consultation has been undertaken in relation to the Government’s partial privatisation programme.  I accept that the technical requirement of consultation may have been met, and therefore understand the Supreme Court’s decision on this point.  However, what this does suggest to me is that bare requirements of consultation are not likely to be of much help to Māori when it comes to issues such as this.

Wednesday, February 6, 2013

Year 173

At this time of year, I like to look back over the previous 12 months, identify some of the major developments in the Crown-Māori relationship that we’ve seen since the previous Waitangi Day, and reflect on the health of the Treaty relationship.  The 173rd year in the life of the Treaty has provided much to reflect upon.

The proposed partial privatization of state-owned electricity generating companies has proved to be an ongoing source of tension between Māori and the government throughout the entire year.  In February 2012 there was a flurry of activity around the protection of Treaty principles in the new ‘Mixed Ownership Model’ legislation.  There was a hastily convened series of ‘consultation’ hui (that did not include any hui in Taranaki or Te Tau Ihu).  The Government ignored the overwhelming view voiced at these hui, which was that Māori did not want shares in these companies to be sold, and pressed on with legislation to enable the sale of shares to take place.  The Government argued that the protection provided in relation to the four power generating companies by the Treaty principles clause in the State-Owned Enterprises Act would not be eroded because the same ‘concepts’ would be incorporated in the new legislation.  It is now clear that, as many of us noted at the time, simply reproducing the text of the State-Owned Enterprises Act provision would not reproduce the same level of protection of Treaty rights once these companies are partially privatized.  From the middle of the year, the focus on this issue turned first to the Waitangi Tribunal and then to the courts.  The Tribunal granted an urgent inquiry into issues relating to Māori rights to water resources and a hearing of matters directly concerned with the ‘Mixed Ownership Model’ was held in July.  Subsequently, the Waitangi Tribunal requested the Crown not proceed further with the partial privatization programme before the Tribunal issued an interim report on the matter.  The Tribunal had initially indicated it would issue this report in September but, as a result of a request by the Crown, the Tribunal indicated that it would issue a report by 24 August, which it duly did.  In that report, the Tribunal found that Māori did have residual proprietary rights in water bodies and stated that the Crown would be in breach of Treaty principles if it proceeded with the sale of shares in the ‘Mixed Ownership Model’ companies without first creating a mechanism to preserve its ability to recognise Māori rights.  Another round of pseudo-consultation by the government took place, specifically in relation to the Tribunal’s suggested ‘shares-plus’ model, but there was only ever going to be one outcome, no matter how many people turned out to participate.  In October the Prime Minister announced the next steps in the process for the sale of shares in Mighty River Power, the first of the four companies designated for partial privatization.  This kicked off the litigation through the ordinary courts with the Māori Council making an application for judicial review to the High Court.  Justice Ronald Young in the High Court found, quite comprehensively, in favour of the Crown.  The Māori Council sought to appeal this decision directly to the Supreme Court (that is, leap-frogging the Court of Appeal).  The Supreme Court granted leave to appeal and the appeal was heard over two days last week.  The Supreme Court’s decision will of course have great significance, both for the Government’s partial privatization programme and for Treaty jurisprudence.  It is unlikely that we will have to wait long for the Supreme Court’s view.  Throughout this episode, the Waitangi Tribunal and the courts have both shown themselves to be remarkably fleet-footed in order to deal with this important issue with real urgency.  However, from my perspective, it is difficult to argue that the Government has engaged with this issue in genuine good faith.  ‘Consultation’ with Māori was clearly undertaken as a box-ticking exercise and the Prime Minister’s public statements on this matter have been consistently dismissive and misleading.

The urgent inquiry into Māori rights to fresh water resources and the associated issues for the Mixed Ownership Model companies was just part of another busy year for the Waitangi Tribunal.  The Tribunal published a number of major reports this year including a report on the funding of kohanga reo, further substantial parts of the Te Urewera Report, and the report of the National Park district inquiry.  The Tribunal has also been required to address a range of issues relating to the settlement of Treaty claims.  The 2011 Supreme Court decision Haronga v Waitangi Tribunal led to a significant increase in the number of urgent applications made to the Waitangi Tribunal requesting that the Tribunal exercise its binding powers to recommend the remedies including Crown Forest Land or former State-Owned Enterprise land.  Important remedies and settlement-related reports in the last year have included the Port Nicholson Block Urgency Report and the recently released Ngāti Kahu RemediesReport.

We’ve also seen Treaty settlement legislation enacted at a faster rate than ever before.  Some changes in legislative procedure have meant that an unprecedented twelve settlement or settlement-related acts have been enacted this year.  Two pieces of legislation – the Ngāti Whātua Ōrākei Claims Settlement Act and the Rongowhakaata Claims Settlement Act – passed through all stages of the legislative process this year, from introduction to royal assent.  This is an astonishing number of settlement acts to be passed and moving quickly from settlement agreement to implementation ought to be applauded.

Although there were many other developments of note in the 173rd year of life of the Treaty, perhaps the final thing that I will draw attention to here is the constitutional review.  This is something that could have a very significant impact on the health of the Treaty relationship.  The government appointed constitutional advisory panel has been developing its process of engagement over the last twelve months.  Meanwhile, the Independent Working Group on Constitutional Transformation – AotearoaMatike Mai (not to be confused with the Independent Constitutional Review Panel), has been holding hui with Māori up and down the country.  The constitutional review was also the focus of this year’s Te Papa Treaty Debate Series and the constitutional conversation is beginning.  I do not expect that any great changes will arise out of the constitutional advisory panel’s report to Government (the narrow terms of reference and the half-hearted nature of the whole process should see that nothing earth-shattering is included there – despite the hysterics of some who appear to be slightly disconnected from reality).  However, attention has at least been drawn to constitutional issues.  And, as many commentators suggest, one of the most fundamental questions that we need to deal with before any significant constitutional reform can take place is: how do we give effect to the relationship envisaged in the Treaty of Waitangi?  I hope that we’ll see some serious engagement with this question (in good faith of course!) over the next 12 months and that in a year’s time I’ll be reflecting on some really positive developments in the health of the Treaty relationship in Year 174.