One thing you should know about the new Section 9

The Government has announced that the new legislation to allow for the partial privatization of four State Owned Enterprises will include a Treaty clause, but that clause will only apply to the Crown and not other shareholders, or the companies themselves.  In its information sheet on the new legislation, the Government explains the reasoning for this as follows:

The Treaty is an agreement between the Crown and iwi. Therefore, it is not possible to bind non-Crown groups to Treaty provisions. Under the SOE Act, section 9 applies only to the Crown, and not to the SOEs themselves. Similarly, the Treaty clause in the Public Finance Act will apply to the Crown and not to the mixed ownership companies or minority shareholders.

There are quite a few things that are wrong with this statement.

First, nobody was saying that other shareholders were a party to the Treaty, rather the argument is that the Crown has obligations to act consistently with its Treaty obligations. If it is going to divest itself of responsibilities (such as giving up full control of State Owned assets), then it needs to do so in a way that ensures rights under the Treaty are protected.  If this means putting some constraints on third-party rights, then so be it.  It does this already by requiring that memorials be placed on the certificates of title of State Owned Enterprises properties so that any future buyer is aware that such properties may be compulsorily purchased if they are required to be used to settle Treaty claims.  This doesn’t make anybody else a party to the Treaty of Waitangi.  It doesn’t bind non-Crown groups to Treaty provisions.  Third-parties rights are affected by the legislation, not because they have somehow become parties to the Treaty.

This happens with international law all the time.  States, and not individuals or companies, are the subjects of international law.  States are the parties to international agreements.  But that doesn’t mean that states can’t pass laws that ensure that their citizens comply with the standards set out in international conventions.  In fact, usually the key obligation on the parties to international conventions is to enact legislation that does just that.  So, for example, as an individual, I might not be a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, but New Zealand is, and I am subject to the Trade in Endangered Species Act 1989.  The Crown is perfectly entitled to prohibit me from trading in endangered species and has done so, at least in part, because it has obligations under the international convention.

And if it was impossible for non-Crown parties to be required to act consistently with Treaty principles, why does the Government think it is necessary to insert a clause that stipulates “for the avoidance of doubt”, the Treaty provision in the new legislation “does not apply to persons other than the Crown”?  Surely, if it is not possible to bind “non-Crown groups” there could be no doubt about the application of that provision in the first place.

Ten Things You Should Know About the Government's Proposal to Partially Privatize State Assets

1.              What is the Government proposing?

The Government is planning to partially privatize 4 State Owned Enterprises – 4 energy companies, as well as sell down its shareholding in Air NZ, although Air NZ is a slightly different situation so we’ll leave that to one side.  State Owned Enterprises, or SOEs, are companies that are wholly owned by the Crown with Ministers designated as shareholders.  The Government’s plan is to sell up to 49% of the shares in each of these four energy companies.

2.              What has this got to do with Treaty principles?

At the moment, the legislation governing these companies is the State Owned Enterprises Act, which includes a Treaty principles provision. Section 9 of the State Owned Enterprises Act states

“Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

To give effect to the partial privatization, the Government will take those four energy companies out of the scope of the State Owned Enterprises Act and create new legislation that will regulate these companies.  So, s9 would no longer apply.  The question is what, if any, protection for Treaty principles would be included in the new legislation? The Government consultation document asks whether people want to keep s9, have a new Treaty clause, or have no Treaty clause at all.

3.              Why is section 9 important?

Many people will know that s9 has an important history.  This was the first Treaty principles clause to come before the Court of Appeal and it gave us the landmark New Zealand Maori Council case in 1987, often referred to as the Lands case or the SOE case.  The Treaty of Waitangi itself isn’t directly enforceable in the courts, but the inclusion of a legislative provision such as s9 gives Treaty principles at least some teeth.  In that case, the Court of Appeal found that the Government of the day could not go ahead with the transfer of land to these new State Owned Enterprises, without first setting up some protection mechanism to ensure that Maori claims would not be prejudiced.  That is, if claims that had not been heard at that point were later determined to be well-founded, the Government ought not to be able to just say “Yes, you do have a legitimate right to that land, but we can’t give it back to you because someone else owns it now.”  And this is a consistent theme of the case law, that the Government must ensure that it does not act in a way which will make it impossible for it to fulfill its Treaty obligations. 

4.              How do we know what Treaty principles are?

As I have noted in a previous post, I have seen some comments in the media which seem to suggest that nobody knows what Treaty principles really are.  Now, there is no list of Treaty principles defined in the State Owned Enterprises Act or other legislation, but we have lots of case law and Waitangi Tribunal reports that articulate and elaborate Treaty principles and apply them to particular circumstances so that it is now pretty clear what Treaty principles are and predictable as to how they will apply in any given situation.  In the 1987 NZMC case, the Lands case, the Court of Appeal identified the key principle in the context of s9 of the SOE Act was that of partnership in which the Treaty partners act towards each other reasonably and in good faith.  From this flow other principles, such as active protection and the obligation to provide redress for past breaches.

5.              Is section 9 the only part of the SOE Act that is relevant to Maori rights?

No it isn’t.  Section 9 is important because it sets out the obligation to comply with Treaty principles, but it doesn’t actually provide the mechanism by which Maori land rights and claims to land are protected.  The actual protection mechanism is constructed by sections 27A-27D. These sections provide the Waitangi Tribunal with specific powers to recommend SOE land or former SOE land be bought back by the Crown to be used for Treaty settlements.  I should add that these provisions have almost never been used.

6.              Why aren’t sections 27A-D sufficient to protect Maori rights?

These sections specifically relate to claims to land, but Treaty principles relate to much more than just land.  The Government is planning to transfer these sections into the new legislation, but without an equivalent of s9, there would be no direct legal obligation on the Government to act consistently with the principles of the Treaty of Waitangi with regard to the governance of these companies.

7.              Would section 9 provide sufficient protection for Maori rights in relation to the partially privatized energy companies?

Actually, s9 does not provide sufficient protection.  It places obligations on Government, which may be fine while these companies are still 100% Government owned and controlled, but in selling down its shareholding, the Government is giving up some of its control to third parties who have no Treaty obligations.  In that situation it will clearly be more difficult for the Government to fulfill its own obligations.  That transfer of shares and control should therefore be completed in a way that is consistent with the principles of the Treaty.  Otherwise, the Government could keep selling down its shareholding in the future and s9 would become virtually worthless.  Section 9 is the obligation, but there needs to be some form of protection mechanism set in place before these sales happen.  That has been the consistent message from the courts in these types of situations.  Perhaps one option might be to ensure that the companies themselves take on the Treaty obligation.  But there may be other ways in which Maori rights can be protected and provided for.

8.              What kind of rights are involved?

While there may be rights to land involved, in relation to the operation of these energy companies there are also significant questions around water rights.  Now, the Treaty of course talks about tino rangatiratanga and if we were to translate that into Pakeha rights language, I think, in relation to natural resources such as water it would certainly include rights and obligations to protect, preserve, control, regulate, use and develop those resources.

9.              Hasn’t the Government said nobody owns the water?

Just like they now say that nobody owns the foreshore and seabed.  In the context of the foreshore and seabed, the Attorney-General explained at some length how there are many levels of property interests that might not amount to exclusive ownership and we see that with water too – the Resource Management Act effectively provides for the allocation of private rights in water.  So, I think it is a bit disingenuous to say Maori water rights can’t be discussed because nobody owns the water.  In any case, whatever the position under the common law, when the content of indigenous rights are being determined it is well-established that you need to look at the rights the indigenous people themselves recognised under their own system of law.  Now I haven’t heard anyone arguing that they own all the water in the country but clearly Maori have always recognised specific rights around the use and control of waterways and aquafirs within their own rohe.  That is what needs to be recognised before these sales proceed.

10.          What should people do if they are concerned about the Government’s proposals?

Make a submission.  Maria Bargh and I have put a template submission together, which is available on Victoria University’s Maori Studies web page, http://www.victoria.ac.nz/maori and which people can have a look at and use themselves if they wish.  We’ve got two versions – a short one and a longer one which has a bit more explanation of the arguments.  I’m not sure that you can really say that the Government consultation process looks like good faith consultation – it has been pretty rushed, with consultation hui over in a week, no hui in places like Taranaki, Te Tau Ihu, and discussion only focused on a limited part of this whole issue, and I don’t think that it meets the kind of standards that are set out in the UN Declaration on the Rights of Indigenous Peoples, which this Government claims to endorse.  Having said all that, this looks like the only opportunity we’re going to have to be heard on this issue, so I would encourage people to make their voices heard. Submissions close 22 February.

Treaty principles are not vague and unknowable

Amongst the recent flurry of discussion over the Crown's Treaty obligations in relation to State Owned Enterprises and whether or not the move to partially privatize SOEs would alter those obligations, I have heard commentators, pundits and media folk repeat the line that nobody really knows what Treaty principles are in any case. Well, actually, it isn't that hard to figure out what Treaty principles are.  Nearly 25 years ago, the Court of Appeal determined that Treaty principles, in the very context of the State Owned Enterprises Act, included good faith and partnership, active protection, and a principle of redress. The Waitangi Tribunal has elaborated on these key principles, in numerous reports since then, articulating what 'good faith and partnership' looks like when applied to particular and varied circumstances. Te Puni Kōkiri has published a short volume that brings together various statements from Government, the Courts and the Waitangi Tribunal to set out principles of the Treaty in some detail. There is of course a wider literature on the subject of Treaty principles as well.  There is no shortage of information.  Treaty principles are only uncertain to the extent there is no comprehensive and exhaustive list, but to anyone who cares to look at the precedents that have been established over the last 25 years, it is pretty clear how Treaty principles will apply in any given situation.

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.

Wai 262 - The Making of International Instruments

The final substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses the concerns raised by the claimants in relation to the international agreements and non-binding instruments that the New Zealand government enters into with other states.  The Tribunal devotes a chapter of this report to these matters because “the range of international instruments now reaches into the lives of all New Zealanders and can change, reduce, or enhance their most basic rights.  Māori interests in traditional knowledge, culture, economic development, and the environment, to name a few, are all affected”.  The Tribunal considers how the guarantees of the Treaty of Waitangi might act to protect Māori interests in this context and what practical mechanisms might ensure such protection.

The Tribunal examines three important international instruments as brief case studies:

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘a landmark international acknowledgement that indigenous collectives as well as individuals have rights to self-determination and in respect of their culture, identity, language, employment, health, education, and other matters.’  The claimants argued that consultation with Māori had been limited, especially considering the significance of this instrument in relation to a broad range of Māori interests.  The last consultation that was referred to in Crown evidence took place in 2003 and the claimants contended that was neither representative nor effective consultation.

• Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for the protection of all forms of biodiversity (that is, ecosystems, species, and genetic resources) in the common interests of all humankind.’  There appears to have been significant consultation of Māori leading up to the signing of the CBD, however, the claimants submitted that Māori had been excluded from the important ongoing international work programme of the CBD.  The Crown argued that genuine attempts had been made to consult with Māori in relation to this ongoing work, but acknowledged that had not always been successful and noted that its engagement strategy only applied to binding agreements (rather than non-binding guidelines developed through ongoing CBD processes).

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – an agreement that ‘sets international minimum standards for the protection of [Intellectual Property] and provides the framework for New Zealand’s domestic [Intellectual Property] law.’ The claimants raised concerns about the lack of consultation in relation to both the international negotiation of the TRIPS agreement and its implementation through domestic law.  The Crown noted that there had been some engagement with Māori in regards to the domestic legislation.  Māori provided submissions to the select committee considering the legislation and there was further consultation with Māori in relation to subsequent intellectual property law reforms.

The Tribunal notes that these three brief examples suggest some basic flaws in the Crown’s approach to engaging Māori in relation to international instruments.  Each of these instruments profoundly affects Māori interests in some way and yet consultation with Māori was uneven and, for one reason or another, it was often ineffective.  Problems with the Crown’s approach to engagement with Māori have arisen because the Crown:

• does not always engage with Māori if an instrument is non-binding;
• sometimes engages at the end (when laws are being passed) not from the beginning; and
• sometimes does not engage at all even when the Māori interest is important.

The Tribunal suggests that the Crown’s approach will continue to be uneven and ineffective if it continues in the same vein and notes that the Treaty entitles Māori interests to a reasonable degree of protection.  In particular, the Treaty confirms:

that it is for Māori to say what their interests are and to articulate how they might be protected – in this case, in the making, amendment, or implementation of international instruments.  That is what the guarantee of tino rangatiratanga requires.  It is for the Crown to inform Māori as to upcoming developments in the international arena, and how it might affect their interests.  Māori must then inform the Crown as to whether and how they see their interests as being affected and protected.

As with other chapters in this report, the Tribunal suggests here that the type of engagement required by the Crown in order to be Treaty compliant will vary from case to case, to be determined by the Māori interests that are affected.  Significantly, the Tribunal envisages that there may be some instances “when the Māori interest is so overwhelming, and other interests by comparison so narrow or limited, that the Crown should contemplate delegation of its role as New Zealand’s ‘one voice’ in international affairs”.