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  For example, the departmental report notes that “[i]n the Government’s view, the 2004 Act should be repealed because of its discriminatory effect on Māori and it should be replaced with legislation that remedies that discrimination and unequivocally protects existing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.

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 171^st 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 172^nd 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. 

Patricia Monture

It was with great sadness that I learned of the passing of the Mohawk legal scholar and activist Patricia Monture.  Patricia died last month after several years battling breast cancer.  She was 52 years old.  My thoughts are with her family and those that were close to her.  They must bear the loss of a mother, sister, aunt, and friend.  As this obituary in the Globe and Mail makes clear, the Indigenous world has also lost a champion. Ka hinga te tōtara o te wao nui a Tāne.

I never met Patricia in person but I have been greatly inspired by her work and, in particular, her commitment to achieving justice for her people.  One of the aspects of her work that I most admire is her ability and determination to articulate a perspective of law that overtly acknowledges, and is built upon, her personal experiences and cultural grounding as a Kanien’kehaka (Mohawk) woman.  Such a perspective challenges us all to think critically about the way in which Indigenous communities and individuals experience law.  It demands that we consider the values that are embedded in law and the interests that law advances, as well as the values and interests it opposes.  As another Indigenous legal scholar has noted, her approach “lays bare the myth of objectivity wielded by . . . judges, those who work within systems built around such Western constructs as ‘rights’ and the ‘public/private divide’”.[1] Her book Journeying Forward: Dreaming First Nations’ Independence helped me to see ways in which Indigenous peoples’ accounts of law can be at once deeply personal and rigorously analytical. 

I also found Patricia’s tireless work for transformative change a real inspiration. Her experiences with the law suggested to her that reactively fighting oppression resulted in pouring energy into issues that were not constructed or framed by Indigenous people.  “Change” she wrote “will come not from institutions but from the people. . . Being self-determining is simply about the way you choose to live your life every day”.[2]  And she backed up her words with action.  She determined that Canadian law, as the key instrument of her people’s oppression, could not also be the source of their self-determination.  Though she saw her role as a teacher as central to the contribution she could make, she stepped away from the law school environment so as not to be complicit in the perpetuation of a system that oppressed Indigenous people.  Instead she chose to use her skills and her knowledge about law to encourage discussion about the ways in which Indigenous peoples can change the reality in which we live.  For me, her example provides a constant challenge to think critically, not just about law, but about my own actions and whether or not they are contributing to transformative change.   She was an example of a true warrior, in the sense that she herself described the term:

Warrior, in my mind, is not a man’s word.  It is not a fighting word.  It is not a war word.  Given what I have been told about many Indian languages, that you cannot use “he” or “she” in the same way that you do in the english language, I suspect that the word warrior is not a gender specific one at all.  Warrior is a ‘knowing your place in your community’, ‘caring to speak your truth’, ‘being able to share your gift’, ‘being proud of who you are’ word.  Warrior in the way I intend it, is not merely a resistance word.  The way I have come to understand the warrior is someone who is beyond resisting.  Survivors resist.  resistance is one of the many skills that a warrior might use.  It is not their only way.  Warriors also have a vision.  They dream for their people’s future.[3]

---

[1] Gordon Christie "Indigenous Legal Theory" in B J Richardson, S Imai, and C K McNeil (eds) Indigenous Peoples and the Law (Hart, Oxford, 2009) 195 at 228.

[2] Patricia Monture-Angus Journeying Forward (Fernwood, Black Point, Nova Scotia, 1999) 159.

[3] Patricia Monture-Angus "Standing Against Canadian Law" (1998) 2 YB NZ Juris. 21 (1998) 7 at 21.

Wai 262: Te Reo Māori chapter

Last week the Waitangi Tribunal released a pre-publication chapter that will form a part of the much anticipated Wai 262 report.  Wai 262 (so called because it was the two hundred and sixty second claim to be registered with the Waitangi Tribunal) is sometimes referred to as the Indigenous Flora and Fauna claim, but may be better described as the ‘Traditional Knowledge’ claim as the inquiry encompasses issues around cultural intellectual property that run much wider than flora and fauna.  The Waitangi Tribunal produced a Statement of Issues for the final stages of the inquiry, which gives some indication of the breadth of the issues to be addressed.  The chapter that was released last week covers matters relating to te reo Māori, the Māori language.  The Tribunal had not intended to release pre-publication chapters for this report in the way that some of the recent historical inquiries have done.  However, the decision was taken to release this chapter in order to be able to feed into the review of the Māori language strategy and sector that was announced in July of this year.

There has been reasonably wide media coverage of aspects of the released chapter, particularly around the Tribunal’s findings about the precarious state of te reo.  The Tribunal identifies a number of indicators that suggest a recent decline in the health of te reo, which is certainly alarming and may come as a surprise to many.  The Tribunal recommends a number of measures be taken to halt and reverse this decline, including revitalizing Te Taura Whiri I te Reo Māori by providing it with the powers and resources necessary to lead the recovery of te reo.

Perhaps not so widely-reported is the Tribunal’s analysis of Treaty principles that underpins its findings and recommendations.  The Tribunal sets out the now undisputed status of te reo Māori as a taonga that attracts the protections guaranteed in Article Two of the Treaty of Waitangi.  In doing so, the Tribunal draws support from its 1986 Te Reo Māori Report, the 1993 decision of the Privy Council in the Broadcasting Assets case, and more recently, the recognition of language rights in the United Nations Declaration on the Rights of Indigenous Peoples.  Furthermore, because of its central role in the maintenance and development of Māori culture as a whole, the Tribunal found that “[t]he language is clearly a taonga of quite transcendent importance to Māori…”.  Distinctive tribal dialects also ought to be protected and nurtured as integral to the health of a diverse and dynamic Māori language.  The Crown will, therefore, need to adopt a variety of approaches in order to satisfy the particular preferences of different iwi. 

So the Crown has clear duties arising from the Treaty in relation to te reo, and what is more, the Tribunal notes, there are no real countervailing interests that impact on the Crown’s duty, except perhaps the limitations of financial cost.  In fact, interestingly, the Tribunal points out that it may be argued that all New Zealanders have a vested interest in ensuring the survival and growth of te reo because “te reo helps shape our collective identity”.  The Tribunal is, however, careful to point out that both Māori and the Crown have obligations to foster the growth of te reo.  Noting that the most successful language revitalization strategies in regards to te reo have been the initiatives of Māori communities themselves, the Tribunal’s recommendations aim to empower Māori to take a lead in the development of te reo strategy.  As part of the Treaty principle of partnership, Māori communities must have ownership of the issues surrounding the health of te reo and contribute the initiative, the ideas, and energetic leadership.  Māori must also take the primary responsibility for speaking Māori in the home, where it is neither possible nor appropriate for the government to give direction in these matters.  The Crown for its part must provide expertise and resources in support and ensure that arrangements for decision-making authority encourage and reflect Māori ownership of the issues.  The Crown also has obligations to provide “a Māori-speaking government”.  The Tribunal notes that not only would widespread use of te reo throughout the public sector send a strong message about the importance of te reo through leading by example, but also it would enable and encourage Māori speakers to engage with the state in te reo Māori for all official purposes.  Te reo Māori is, after all, one of our official languages.

The Tribunal notes, in its letter of transmittal to the Minister of Māori Affairs, that although the te reo chapter is being released ahead of the other parts of the Wai 262 report, the Tribunal is still of the view that the real value of the Wai 262 report will come when it can be considered as a whole.  The Tribunal itself has indicated that it is nearing completion of the entire report.  Many people, not least of all the parties involved, will be looking forward to the release of this major report.  If the chapter on te reo Māori is any indication, we can expect a number of significant and wide-ranging recommendations from the complete report.

Tauranga Moana: Report on the Post-Raupatu Claims

On 4 September, the Waitangi Tribunal released its report Tauranga Moana, 1886-2006: Report on the Post-Raupatu Claims.  This report addresses the second stage of the Tribunal’s inquiry into the Tauranga claims.  It follows the Tribunal’s 2004 report Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims.

The Report on the Post-Raupatu Claims details the significant land loss of Tauranga Māori that took place in the last decades of the nineteenth century, following the major confiscations.  The report also describes the various ways in which Crown actions continued to erode the land base of Tauranga Māori throughout the twentieth century.  

The Tribunal addresses a number of key areas of concern, which are closely associated with the loss of control over land and natural resources.

Land alienation

The Tribunal notes that policies such as those which sought to identify ‘idle’ Māori land that would be suitable for settlement by Pakeha and a range of public works takings resulted in a total loss of around 4960 acres (2008 ha) between 1886 and 2006.  The Tribunal found that the Crown had breached the Treaty principle of active protection by facilitating this alienation of land and failing to ensure that Tauranga Māori retained a sufficient land base for their foreseeable needs.  Furthermore, the inadequate efforts of the Crown to investigate grievances relating to land alienation breached the principle of good faith.  The Crown should also have ensured that compulsory acquisition of Māori land under the public works process was limited to truly exceptional circumstances.  Instead, compulsory acquisition was used for a wide range of purposes, often taking more land than was required for the purpose.

Land development constraints

The Tribunal also considered the Crown’s land development schemes between 1929 and 1975, which aimed to assist some Tauranga Māori to develop their land.  Though the Tribunal commends the intent behind these schemes, it found that, “these efforts did not, in the main, succeed in overcoming the competitive disadvantages faced by Māori land in multiple ownership”. Often, the owners of the land were excluded from meaningful involvement in the management of the land under these schemes and, in some cases were locked into long term arrangements which provided limited financial return.  Māori aspirations for land development have also been hampered by the failure to take into account the special characteristics of Māori land in rating and valuation processes and by the historical lack of opportunity for Māori political representation on local authorities. The report states that, in order to act consistently with Treaty principles, the Crown must now find a way to assist Tauranga Māori to maintain their current land base and to develop that land. 

Access to natural resources and environmental issues

Land loss also had an impact on the ability of Tauranga Māori to access other natural resources.  The traditional pattern of use-rights in the area, whereby each hapū would have access (and obligations of maintenance) in respect of both inland and coastal resources was constrained as European settlement placed pressure on easily farmable land.  Access to natural resources has also been affected by damage to the environment and degradation of ecosystems.  The draining of wetlands and deforestation were issues of particular significance for the way of life of Tauranga Māori.  The Tribunal notes that the Resource Management Act 1991 provides mechanisms for a more Treaty-consistent management of the local environment but points out that such mechanisms have not been effectively or fully utilised in practice and that more active Crown involvement is required to ensure the full potential of the Resource Management Act provisions are realised.

The Tribunal notes that there have been wide-ranging consequences of the Crown’s failure to meet the requirements of Treaty principles in these areas (and others, such as the maintenance of cultural heritage).  Of particular concern to the Tribunal is the general socioeconomic status of Tauranga Māori.  The Tribunal is careful to recognise that there are many factors which contribute to socioeconomic outcomes.  However, this report does find that past Crown policy and action, especially those policies and actions resulting in significant land loss, have contributed to the marginalisation of Tauranga Māori.  The Tribunal recommends that redress for Treaty breaches should therefore take into account the lost opportunity costs resulting from the economic marginalisation of Tauranga Māori and concludes:

Nothing less is due to the iwi and hapū of Tauranga Moana, if they are to climb back to a point of substantive equality from which they can exercise a real degree of tino rangatiratanga over their lives and resources, pursue their aspirations, and realise their full potential to contribute to the well-being of the region and the nation as a whole.

Marine and Coastal Area (Takutai Moana) Bill

The legislation to repeal and replace the Foreshore and Seabed Act is due to have its first reading this week.  The new Marine and Coastal Area (Takutai Moana) Bill will essentially give effect to the government’s preferred option for addressing foreshore and seabed issues, as signalled in the discussion document released at the end of March this year.

I have argued in previous posts that the recent proposals indicate that there has been no change in the Government’s attitude to Maori interests in the foreshore and seabed since the enactment of the Foreshore and Seabed Act.  Neither does this Bill indicate any such change.  Unfortunately, the Bill 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.  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.

Moana Jackson has pointed out many of the discriminatory aspects of the Bill in his latest primer on the subject.  There are other, often connected, aspects of the Bill which appear to me to be extremely problematic. For example, I find it strange that the new, statutory, “customary marine title” only exists where a particular part of the foreshore and seabed has been exclusively used and occupied, and yet the title itself does not provide for such exclusive rights.  Surely, if the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title.  Alternatively, if exclusive use and occupation is not part of customary title, why would you need to prove exclusive use and occupation to have that title recognised?  If nothing else, this suggests that the legislative “customary marine title” is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.  The Foreshore and Seabed Act may have already taken us down that road, but this is another indication that the general direction of that Act is being maintained by the Marine and Coastal Area (Takutai Moana) Bill.

I am also pretty under-whelmed by the way that mana tuku iho has been recognised.  The explanatory note states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation.  This may be symbolically important, which is not to say that this inclusion in the purpose provision has no teeth whatsoever.  In any case, as I have previously suggested, even primarily symbolic changes may help to open up a more productive discussion of Maori interests in the foreshore and seabed, However, the fact that this reference is not supported by more specific provisions, laying out some of the practical effects of the recognition of mana tuku iho suggests that the Government is not yet ready to engage in that more productive discussion.

Latest installment of report on Te Urewera claims

Last week, the Waitangi Tribunal released part II of the pre-publication version of its report on Te Urewera claims.  The first five chapters of this report (as a pre-publication document) were released by the Tribunal in April 2009.  I have referred to some of the content of those first chapters earlier this year in a post relating to Tuhoe’s Treaty settlement negotiations.  The release of this second set of chapters is further illustration of the progress the Tribunal is making in working through historical claims in this type of large-scale district inquiry.  The chapters released last week address a range of significant events and Crown actions, either within or related to the Urewera district, which occurred between the 1860s and the 1950s.  Given the Waitangi Tribunal’s comments in the also recently released report on the Wairarapa ki Tararua claims about the potential of alternative forms of interaction between Māori and the Crown, I thought I would just draw attention to the Tribunal’s treatment of the Urewera District Native Reserve Act 1896.

The Urewera District Native Reserve Act was the result of a negotiated agreement reached between the Crown and Māori leaders of the Urewera region and was designed to recognise real powers of self-government to be exercised by the peoples of Te Urewera and, consequently, the Tribunal suggests that “the Act embodied an arrangement unique in our history”.

The Tribunal identifies the key provisions of the Act as addressing the following matters:

• Creation of a reserve – The Act set aside 650,000 acres for a reserve that was intended to protect both the natural beauty of Te Urewera and the way of life of the Māori communities in the district.  The land was to be reserved permanently for its Māori owners.  The reserve was exceptional because it would be controlled by the Māori owners through local committees. Each local committee would also elect a member to the General Committee, which was responsible for matters affecting the entire reserve.  The jurisdiction of the Native Reserves Act 1882 was excluded from Te Urewera (under that Act, native reserves were controlled by the Public Trustee). Broadly, land in the reserve was to be inalienable, though, with the consent of the General Committee, land could be alienated to the Crown, and there were also provisions for public works takings.
•   Title determination – In the discussions between Urewera representatives and the Crown that formed the basis of the Act it appeared that the Native Land Court would not be involved in the determination of land titles in Te Urewera.  Titles were to be determined through investigation by a committee of seven commissioners, five of whom, the legislation specified, were to be members of Tuhoe.  Though, in the form that the Act was finally passed, the Native Land Court was given a role in dealing with successions and appeals from the commission (if referred to it by the Minister of Native Affairs).
• Individualisation of title – The Waitangi Tribunal was presented with differing views as to whether or not the Act legislated for the individualisation of title in Te Urewera.  Legal historian Richard Boast considered that the effect was clear: “The Commissioners were being required to do no more or less than identify the rights of every single individual of Te Urewera, or, in other words, to completely individualise title to the entire region”.  Others suggested that the certificate of ownership conferred under the Act for the purposes of facilitating the election and running of local committees and that such certificates of ownership did not create individual rights of title in the same form as other native land legislation.  In any case, only the General Committee could alienate land, so, the Tribunal suggests, “the determination of relative interests for individuals did not put ownership of land at risk.”
• Self-government – Perhaps the most remarkable aspect of the Urewera District Native Reserve Act is its intention to give effect to tino rangatiratanga or mana motuhake.  Both Crown and claimant counsel before the Tribunal agreed that this was a clear objective of the Act.  The Premier at the time, Richard Seddon, is quoted in the Tribunal’s report: “I believe myself, that by leaving these people to manage their own affairs, seeing they are not interfered with and no Europeans are allowed in their midst, they can govern themselves in accordance with their own traditions, and are a people self-contained … I am satisfied that there are exceptional circumstances in connection with Tuhoe, and that those circumstances are favourable to the attempt being made, as provided in this Bill, to give them, in respect to the several matters mentioned in the Bill, self-government.” Unfortunately, the Act’s promise of self-government for the peoples of Te Urewera was never realized.
• Social assistance – The Tribunal also found that a package of social and economic assistance was part of the agreement between Urewera representatives and the Crown that underlay the Act.  Generally, this comprised commitments to deliver improvements in health, education, farming and other areas of life in Te Urewera.  There may have been some expectation that these matters would be addressed in the Urewera District Native Reserve Act, as part of the set of arrangements relating to land and governance in the district.  But no provision was made in the Act for this form of social and economic assistance, and it is arguable whether such assistance was provided through other mechanisms.

Despite the failure to realise the full potential of the Urewera District Native Reserve Act 1896, let alone the earlier agreements that lay behind it, this piece of legislation, along with the discussions that surrounded it, provides a valuable illustration of the creative ways in which issues relating to Māori self-government have previously been explored.