Year 172

The 172^nd year in the life of the Treaty of Waitangi saw a number of major developments with significant potential to re-shape the Māori-Crown partnership.  These developments have taken place in all branches of government –  important decisions from the Supreme Court and Court of Appeal, as well as a major report from the Waitangi Tribunal; the new foreshore and seabed legislation and something of a reconfiguration of Māori representation in Parliament; and the establishment of a Ministerial review of constitutional issues.

2011 was, of course, an election year.  But, by the time of the General Election in November, an important change had already taken place amongst the Māori seats.  Early in the year, Hone Harawira, the Member for Te Taitokerau, was suspended from the Māori Party caucus after publicly criticizing the Marine and Coastal Area Bill and the Māori Party’s support of that legislation.  He resigned from the Māori Party, and re-won the his seat standing as an independent at the subsequent by-election. He was returned again as the Member of Parliament for Te Taitokerau in the General Election, this time as leader of the newly formed Mana Party. The Mana Party list included a number of prominent left-wing activists such as Sue Bradford and John Minto, as well as high-profile Māori advocates, many of whom were formerly active within the Māori Party.   Although the Mana Party did not achieve enough support to bring a second MP into Parliament, the very formation of the party, along with the defeat of the incumbent (and hard-working) Maori Party MP, Rahui Katene, in Te Tai Tonga (to Labour’s Rino Tirikatene) suggest Māori voters have been concerned by the often cosy relationship between the Māori Party and the National Party.

The new foreshore and seabed legislation, which was the ostensible catalyst for the split in the Māori Party, was duly enacted and now sits on the statue books as the Marine and Coastal Area (Takutai Moana) Act 2011.  I have posted a number of times on this site about aspects of this legislation, including the apparently cavalier attitude of National Party members of the Māori Affairs Select Committee to the final shape of the legislation.  It is true that the Marine and Coastal Area Act makes some important symbolic changes and some other minor improvements to the regulation of the foreshore and seabed, but the basic framework of the previous legislation remains largely untouched.  As I have noted previously, the Act maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title and until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.

The state legal system’s recognition of Māori custom and customary rights was also the subject of the Court of Appeal’s decision in Takamore v Clarke.  In this case, the Court essentially had to determine whether the whānau of James Takamore (deceased) had the right, by virtue of Tuhoe custom, to take the body of the deceased, as they had done, to be buried on his ancestral lands. The Court of Appeal confirmed that the executor of a will is entitled to make the final decision about where the testator is to be buried. The Court reached this result by two different routes reflected in the joint judgment of Justices Glazebrook and Wild and the separate judgment of Justice Chambers.  Justices Glazebrook and Wild reasoned that the Tūhoe burial custom that allows the body of the deceased to be taken by force without the agreement of the testator cannot be recognised by the common law because it is repugnant to a “root” principle of the legal system, the rule of law.  However, Glazebrook and Wild also set out what they describes as “a more modern approach to customary law” and found that the common law has developed to a point where executors should take indigenous customs relating to burial into account under the common law.  Justice Chambers agreed that the appeal should be dismissed though he did not comment on whether the Tūhoe burial custom could be recognised but rather reasoned that the custom did not apply to Mr Takamore, whether or not it could be recognised at common law.

Another decision that is of particular relevance to Māori that was also delivered in 2011 was the Supreme Court’s decision in Haronga v Waitangi Tribunal.  Alan Haronga had originally made an application for an urgent hearing of the Waitangi Tribunal 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, but the Supreme Court disagreed with the three key planks of Judge Clark’s reasons and the majority considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and so ordered the Tribunal to undertake such a hearing (with Justice William Young dissenting on the issue of remedy). 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. 

The Waitangi Tribunal itself released a major report in 2011.  Ko Aotearoa Tēnei, the Tribunal’s report into the Wai 262 claims was released on 2 July 2011 and marked the conclusion of the Waitangi Tribunal’s first whole-of-government inquiry. The report makes detailed recommendations for changes in law, policy, and government practice on matters relating to intellectual property and traditional knowledge, genetic and biological resources of indigenous species, Māori communities relationship with the natural environment in the context of both environmental planning and conservation, the Māori language, museums and cultural heritage, traditional Māori healing and medicine, and the role of Māori in the making of international instruments which affect their interests. The Tribunal’s report and the findings and recommendations within are now with the New Zealand Government, while officials formulate a response. While the Government is under no legal obligation to accept the Tribunal’s findings or to adopt its recommendations there is, no doubt, political pressure currently being exerted on the Government to, on the one hand, implement the Tribunal’s recommendations, and, on the other hand, to reject those recommendations.  Yet, whatever the official response from government, this report will remain a hugely significant document because it articulates a conceptually coherent vision of a state founded in the worldviews of two distinct cultures.  Importantly, it goes beyond simply articulating a vision, but suggests a range of practical law and policy mechanisms by which that vision might be realized.

While 2011 saw the conclusion of the Tribunal’s Wai 262 inquiry, another potentially significant process is just beginning.  The announcement of the Government’s ‘consideration of constitutional issues’ was actually made in December 2010, though the formal appointment of a constitutional advisory panel did not take place until August 2011.  The panel is comprised of a number of eminent New Zealanders, and roughly half the members are Māori.  It is notable, however, that there are no constitutional lawyers on the panel.  The panel has been appointed to:

stimulate public interest in, and awareness of, New Zealand's constitutional arrangements and issues arising. 

establish a forum to develop and share a range of ideas on constitutional issues, including seeking the views of all New Zealanders, including Maori, in a manner that is reflective of the Treaty of Waitangi relationship. 

develop an understanding of the range of perspectives on New Zealand's constitutional arrangements, including the range of topical issues requiring further discussion, debate and policy consideration.

Meanwhile, the National Iwi Chairs Forum has established an independent constitutional working group to develop recommendations for a constitutional model that is based on tikanga Māori, the Declaration of Independence and the Treaty of Waitangi.  The Working Group is quite distinct from the Government review and has much wider terms of reference.  Convened by Māori advocate and constitutional law expert Moana Jackson, the Working Group will be undertaking a process of engaging Māori in discussion of constitutional matters beginning this year.

With these major constitutional conversations taking place, the 173^rd year in the life of the Treaty of Waitangi is shaping up to be another interesting one in the development of the Treaty relationship.

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.