2020 Vision - Labour's Treaty Settlement Policy

The Labour Party has released its Māori Development policy that includes their intention to ensure that all historical Treaty settlements are completed by 2020. The National Party had previously set a target of 2014 to have Deeds of Settlement completed with all outstanding groups. This target will not be met despite the accelerated speed of settlements under the current government. Keeping in mind that speed is not, of course, equivalent to quality, it should be obvious that nobody is more anxious to complete just and durable settlements than those whose claims are to be settled. I am, nonetheless, cautious about the way in which these targets are articulated. Such targets may be beneficial if they signal that a high priority is to be placed on the resolution of these issues and resources are to be directed to the claims and settlement process accordingly. However, they can be problematic if the intention is to simply impose a deadline for political reasons. In that case it may merely act as one more unilaterally imposed constraint on the settlement process which ultimately undermines both their justice and durability (which I would argue are both fragile enough as it is).

In its Strategic Direction paper released last month, the Waitangi Tribunal is also aiming to complete its inquiries into historical claims by 2020. In that document, covering the period 2014-2025, the Tribunal sets out five categories of claims to assist it to prioritise work according to its strategic objectives:

1. Final district inquiries and remaining historical claims (to be completed by 2020);
2. High priority kaupapa claims [thematic claims, often related to a contemporary policy issue, often of national significance] (to be progressed by 2020);
3. Remaining kaupapa claims [especially those with a historical grievance not addressed by the settlement process] (to be substantially advanced or completed by 2025);
4. Address the backlog of contemporary claims (by 2025); and
5. Address urgent claims arising from Treaty settlement processes and any kaupapa or contemporary claims granted urgency (to be dealt with urgently as they arise).

Although the 2020 timeframe is the issue that has gained media attention, this timeframe has been announced by Labour as part of a much wider Māori Development policy. Even within the section on the Treaty of Waitangi, there are many more interesting measures proposed. Amongst other things, Labour proposes to:

• implement a Treaty education programme for stakeholders and communities

• continue to work with hapū and iwi on innovative redress models to best reflect the nature of their claims under the Treaty of Waitangi

• review the various mechanisms that give effect to the Crown’s ongoing obligations arising from the Treaty settlement process – the intent will be to report on the implementation of such commitments.

• review the role and function of the Waitangi Tribunal once historical treaty claims have been settled, recognising that the inherent nature of the Tribunal has been to consider the way in which the Crown has upheld its obligations as a Treaty partner.

 There is also a section on post-settlement relationships in which Labour commits to:

• work in partnership with hapū and iwi to develop relevant Governance frameworks that recognise the unique collective feature of tribal wealth and resources

• consider the active partnership opportunities that can be forged with iwi on projects of national significance

• work with hapū, iwi and Māori to quantify the contribution of its economy on real growth and productivity predictors that inform its economic policy

• work in partnership with Māori to develop a unique export trade window that platforms industry participation in niche markets

• consider Māori business and services equally in the tendering and procurement of services in its regional economic growth initiatives.

 Importantly, the policy recognises the ongoing obligations that the Crown has, not only in the implementation of Treaty settlements, but, more broadly, as a result of the continuing Treaty partnership. This is important because the Treaty of Waitangi created a relationship that will continue to exist beyond 2020, whether all historical claims are settled by that date or not.

Iwi share offer

Last week the Government announced that iwi who are yet to settle their historical Treaty claims will be able to choose to take part of the value of their settlement as shares in the energy companies that are to be partially privatized.

A joint press statement by the Minister of Finance and the Minister for Treaty of Waitangi Negotiations states:

Each Iwi would be limited to 5 per cent, 10 per cent or 12.5 per cent of their likely total settlement, depending on their situation.     

• A 5 per cent maximum of their likely settlement would be available for Iwi not “local” to any of the power companies’ assets – for example, if there was no dam or other operating asset within the Iwi’s area. 
• A 10 per cent limit would apply to Iwi who are “local” to any of the companies. 
• A 12.5 per cent limit would apply to Iwi who are “local” to any of the companies, had reached an Agreement in Principle with the Crown, and had already agreed a quantum amount for settlement. 

As the Māori Council has noted, this does not address any claims to water, or alter the value of any settlement.  If iwi who have not yet settled do not take up this offer, they will receive cash or other assets instead of shares.

There are also some interesting quirks to this offer.  Iwi who take up this offer not be eligible for loyalty bonuses that will be available to individual New Zealanders who purchase shares.  And presumably iwi who have already reached an Agreement in Principle are eligible to use a greater percentage of the value of their settlement because there is some certainty around what that final value is, but it does rather look as though this is simply a reward for being cooperative.

In any case, the offer seems to be entirely politically motivated with the objective of dividing Māori on this issue and taking some of the sting out of opposition to the Government's rejection of the Waitangi Tribunal's recommendations.

Waitangi Tribunal Report on Te Kohanga Reo

The Waitangi Tribunal has found that the Crown has breached the principles of the Treaty of Waitangi by failing to provide appropriate support to kohanga reo and that kōhanga reo have suffered severe prejudice as a result of the Crown’s actions and omissions.

A summary of the Tribunal's findings are set out on the Kohanga Reo National Trust website.

The sale of shares in MRP and the Crown's ability to recognise Māori rights

Yesterday, the Prime Minister announced the next steps to for the partial privatization of Mighty River Power. This decision appears to be based on the Government’s position that in common law no one owns water, that Māori rights and interests are being addressed through other fora, and that the Crown’s ability to provide redress is not affected by the sale of shares in Mighty River Power.  Let’s consider each of these points.

In common law no one owns water.

It is arguable that this oversimplifies the common law position as well as misrepresenting the nature of the claim, but in any case, this is somewhat beside the point.  From a Treaty of Waitangi perspective, the key question is what rights were guaranteed by the Treaty, not what rights were recognized by the common law.  As the Tribunal pointed out:

“…Māori citizens were guaranteed the property they possessed in 1840.  That right of property was not constrained by what could be legally owned in England.  Rather it depended on what Māori possessed at the time in custom and in fact.”

Maori do have rights and interests in water, and these will continue to be addressed through a range of processes such as Treaty settlements, the Government’s Fresh Start for Fresh Water programme and dialogue with iwi leaders.

The Waitangi Tribunal explained in its 2011 report on the Wai 262 inquiry – Ko Aotearoa Tēnei – that delivering exclusive or shared decision-making powers to Māori in relation to water bodies does not depend on historical breaches of Treaty principles and Māori ought not to be made to expend the potential of their Treaty settlement packages on having these rights and interests recognized.

And when the Tribunal granted an urgent hearing of this claim it found that dialogue with iwi leaders was not an alternative remedy for the claimants because the claimant, the Māori Council was not a party to that dialogue.  In any case, that dialogue appeared to be proceeding on the basis that Māori rights would not be affected by the outcomes of freshwater management reforms, whereas the claimants argued that Māori rights in water needed to be defined before any effects on them could be considered.

The partial sale of Mighty River Power does not impact on the Crown’s ability to recognise Maori rights and interests in water

Underlying this statement is the Government’s rejection of the ‘shares plus’ concept outlined in the Waitangi Tribunal’s interim report.  The Prime Minister’s statement says:

Financial redress and input into resource management decisions can be provided in other – and in some cases better – ways. 

Appointing directors and exercising shareholder voting rights can also be achieved in other ways with the Crown, which will remain the controlling shareholder. 

The Crown does not believe that providing iwi with special rights in making management decisions will work well and most submitters who considered the idea agreed. 

‘Shares plus’ would create a potential conflict of interest within and between different iwi groups. And it would potentially weaken existing relationships between iwi groups and the SOEs.

Whereas, the Tribunal found that:

“…a commercial option for rights recognition or redress (where recognition is not possible) is essential.  That commercial option or options should, as far as possible, provide for the Māori development right.” 

“In our view, the Crown is correct that it will still be able to provide many such options after the sale of shares in the MOM companies.  We think that the claimants’ evidence has shown that it will be significantly more difficult for the Crown to do so once it has introduced thousands of ‘mum and dad’ investors into the political mix.  We suspect that the Crown’s evidence underestimated the political obstacle that these new interests will put in the way of a tax, levy, royalty, or resource rental for the use of water to generate electricity.” 

“But there is one area in which the Crown will not be able to provide appropriate rights recognition or redress after the partial privatization, and that is in the area that we have termed ‘shares plus’: the provision of shares or special classes of shares which, in conjunction with amended company constitutions and shareholders’ agreements, could provide Māori with a meaningful form of commercial rights recognition.  As we have found, ‘shares plus’ are not ‘fungible’ and company law would in practical terms prevent the Crown from providing this form of rights recognition after the introduction of private shareholdings, certainly after the sale of more than 25 per cent of shares and arguably before that too.”

Well, I expect we will soon see what the courts think about this issue.  In the meantime, we know that the Waitangi Tribunal, having heard evidence from expert witnesses presented by the Crown and claimants, came to the considered view that the sale of Mighty River Power will have an impact on the Crown’s ability to recognise Māori rights and interests in water bodies. 

Utmost good faith?

On Monday, John Key announced that the public offering of up to 49 per cent of shares in Mighty River Power will be delayed until early next year.  This will allow consultation to take place with Māori over the ‘shares plus’ concept raised by the Waitangi Tribunal as a possible means of recognizing Māori residual proprietary interests in water bodies.  This might look like the Government is trying to find a way of recognizing those interests, but, judging by the wording of Key’s statement, it seems as though there may be real questions as to whether the Government is engaging in this process in good faith.

First of all, Key’s statement focuses on setting out reasons why the Government opposes the ‘shares plus’ concept (which the Tribunal suggested could be used to recognize Māori residual proprietary interests through shares in the power-generating companies that carried with them a significant degree of control over the operations of the company).  Neither the formal statement nor Key’s responses to questions on Monday suggest that the Government is entering into this process with the aim of finding a way to implement the ‘shares plus’ concept.  Key’s statement that ‘ministers have today decided that taking some time to talk about ‘shares plus’ with relevant iwi is the prudent thing to do’ sounds to me as though the process will be one in which the Government will tell Māori why the ‘shares plus’ concept will not be accepted.  This is reinforced by reports that “Mr Key made it clear yesterday that the consultation period was not likely to see the Government change its mind, but was required to strengthen the Government's legal position”. This sounds like it will be an awful lot like the “consultation” around the inclusion of a Treaty of Waitangi provision in the legislation enabling the partial privatization of the state-owned power generating companies. That process was about Government ministers telling Māori what was going to happen. It was not about listening to Māori who consistently stated that they did not want the partial privatization to proceed without Māori rights being protected.  It is difficult to see how this could be construed as engaging in good faith, as pointed out in the NZ Herald editorial today. It strikes me that a little bit more listening and compromise early on in the process might have enabled the Government to avoid some of the difficulties it is now encountering in this process.

And the reasons for opposing the ‘shares plus’ concept are little more than political spin.  Key’s statement notes “Almost every form of redress to Maori that could be covered by ‘shares plus’ can be achieved in other ways”.  This is true.  But this is not a reason to oppose the ‘shares plus’ option.  Implicit in that statement is that there are some forms of redress that cannot be achieved in other ways.  If the Government wants to push ahead with the partial privatization without first resolving issues relating to Māori rights to water bodies then it ought to ensure it retains the ability to provide all forms of redress that might be required to provide reparation.  Key also says that ‘shares plus’ is unworkable and backs that up with this example:  “if some Maori shareholders had the ability to make decisions on strategic issues, under well-established law, those shareholders must act in the interests of the whole company and not simply as a representative of Maori”.  I am sure that Māori shareholders with enhanced decision-making authority could continue to make decisions in the best interests of the whole company at the same time as ensuring that Māori perspectives are given voice in that decision-making.

Key also stated “Following consultation with iwi earlier this year, a careful and deliberate decision was made to ensure that the Crown’s obligations under the Treaty continue to rest with the Crown, not with the companies.”  This makes it sound as though this was the outcome Māori had sought through the “consultation” process.  This could not be further from the truth.  Māori consistently told the Crown that the Treaty protections would be watered-down if they did not continue to apply to 100 per cent of the company.  The Government’s decision on this issue was made despite what Māori had said during the consultation, not because of what was said. 

The Government has also ignored other key elements of the Waitangi Tribunal’s recommendations.  In particular, the Government is sticking to its line that the partial sale of Mighty River Power will not affect the Crown’s ability to recognize Māori rights and interests in water.  The Tribunal notes that the Crown’s preferred options for rights recognition fall short of the Treaty guarantees because they do not recognize the proprietary element of Māori rights and do not provide for commercial or economic benefits that accrue because of the proprietary character of the rights in question.  The Tribunal found that, as the sole shareholder, the Crown now has flexibility to provide for the ‘shares plus’ option that will be lost once the partial privatization has taken place, noting

That would mean that the ability to negotiate remedy agreements with Māori would be lost if those potential remedies were by way of share issues or the transfer of existing shares on terms involving any form of preference as to voting rights, capital or income distributions, pre-emptive rights, or appointment of directors, to name but some possible remedy considerations.

The Tribunal also recommended that the Crown urgently convene a national hui ‘in conjunction with iwi leaders, the New Zealand Māori Council, and the parties who asserted an interest in this claim’, but the Government has rejected this idea in favour of much more limited discussions with specific iwi.  Furthermore, now that a national hui has been called, under the auspices of the Māori King, Key has made it clear that the Government and National Party MPs will not attend.  Rejecting the forum for consultation recommended by the Tribunal and clearly preferred by no less a figure than King Tuheitia raises yet another question mark over the Government’s claim to be engaging ‘in good faith’. 

An Open Letter to Rodney Hide

Dear Rodney

I suppose things that you don’t understand can be scary in a way.  There is certainly a lot of both fear and misunderstanding expressed in your opinions on the Treaty of Waitangi and the Waitangi Tribunal.  I thought perhaps a little bit more information and explanation might help you overcome your fears.

You know how you scoffed at the idea that ‘singing a song can make a river yours’? Surely it is not so strange that a group of people who exercise rights and responsibilities in relation to a river (or any other natural resources) would record what those rights and responsibilities are? That they would give expression to them in a statement that would be recognized by others? There is nothing magical or spooky about this.  You say you are keen on certainty in property rights so I thought you would have liked this kind of thing. I know this is a different form of expressing a legal relationship and articulating legal rights and obligations than is used in common law legal systems, but it would be a bit silly to expect legal systems with different histories and philosophies to develop the exactly the same mechanisms for recording legal rights and obligations.

Sorry, I forgot that you don’t think Māori had a legal system before 1840. It is hard to know what makes you think that, given the extensive evidence, readily accessible in Waitangi Tribunal reports and other research, that illustrates a system of Māori law that included mechanisms for deliberative law-making, keeping leaders accountable, the allocation of rights and responsibilities, dispute resolution, forming contractual relationships, ascertaining tortious liability, promulgating procedural rules, and applying legal principles. If you’re suggesting that this isn’t a legal system because its institutions don’t look exactly like the institutions of Western legal systems, I’m afraid that just sounds racist to me.

I know that the phrase ‘might makes right’ has a catchy kind of ring to it, but let’s not get taken in by an easy rhyme.  Māori rights to land and natural resources were allocated according to law and principle.  Taking territory by force may have had practical implications for the exercise of land rights, but it was not a source of legal rights itself if it could not be supported by evidence of kinship links, historical connection and use recognized by law.  A similar situation exists in the New Zealand state legal system today, so that if I stole your television, for example, I might be able to keep it and use it for as long as I could evade the police, but the act of taking it does not give me any kind of legal rights.  It does not mean that ‘might makes right’.

I hope that gives you a bit more of an idea of the way in which the Māori legal system operates and helps you to understand the issues better.  Because there really is nothing to be scared of in the idea of partnership.