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.

Waitangi Tribunal recommends halt to partial privatisation of state-owned power companies

The Waitangi Tribunal has found that Māori have residual proprietary rights in bodies of water. In an interim report issued yesterday, the Tribunal found that the Crown will be in breach of Treaty principles if it proceeds with the sale of shares in State-owned power generating companies (the Mixed Ownership Model companies) without first creating a mechanism to preserve its ability to recognize Māori rights. The Tribunal recommended that the Crown urgently convene a national hui to determine a way forward and that the sale of shares in the Mixed Ownership Model companies be delayed while the Treaty partners negotiate a solution.

For more information about the Tribunal's interim report, continue reading this post at the Māori Law Review website.

Tribunal aims to produce interim report on fresh water issues by 24 August

On 6 August the Presiding Officer of the Waitangi Tribunal’s National Fresh Water and Geothermal Resource Inquiry, Chief Judge Wilson Isaac, issued memorandum-directions indicating that the Tribunal will endeavour to produce an interim report by 24 August 2012.  The Tribunal had previously indicated that it would report on stage one of the inquiry in September 2012 and had requested that the Crown wait until that time before proceeding with the sale of shares in state-owned power generating companies. The 6 August direction responds to a memorandum submitted on behalf of the Crown on 2 August that requested the Tribunal to complete its stage one report by 24 August.

For more information about the Tribunal's direction, you can read the rest of this post at the Māori Law Review website.

Tribunal Requests Crown to Wait for Water Report

Today saw a further step in the Waitangi Tribunal’s inquiry into the National Fresh Water and Geothermal Resources claims, which may have significant implications for the Government’s proposed sale of shares in the state-owned power-generating companies.  

Earlier this year, the Tribunal granted an application for an urgent hearing into these claims.  In order to enable the Tribunal to report as quickly as possible on the issue of the sale of shares in the Mixed Ownership Model companies, the inquiry was divided into two stages. 

The issues addressed in stage one of the inquiry related specifically to the sale of shares and the effect this would have on the Crown’s ability to recognize Māori rights in water resources, namely:

• What rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty of Waitangi?
• Does the sale of up to 49 per cent of shares in power-generating SOE companies affect the Crown's ability to recognise these rights and remedy their breach, where such breach is proven?
• Before its sale of shares, ought the Crown to disclose the possibility of Tribunal resumption orders for memorialised land owned by the mixed ownership model power companies? 
• Ought the Crown to disclose the possibility that share values could drop if the Tribunal upheld Maori claims to property rights in the water used by the mixed ownership model power companies?
• Is such a removal of recognition and/or remedy in breach of the Treaty? 
• If so, what recommendations should be made as to a Treaty-compliant approach?

The issues to be considered in stage two more broadly address the recognition of Māori rights and interests in freshwater and geothermal resources and the prejudice to Māori where these rights are not recognized.

The Tribunal’s hearing of stage one of the inquiry took place between 9-20 July.  The memorandum-directions issued by the Tribunal today do not constitute the Tribunal’s report on stage one (that is due to be issued in September), but instead address the claimants’ request for an interim recommendation that the Crown should refrain from commencing the sale of shares prior to the issuing of the Tribunal’s stage one report.  The Tribunal does not technically issue an interim recommendation, having made no findings of Treaty breach upon which such a recommendation could be based.  However, the Tribunal makes it clear that its interim assessment of the situation is that there is a serious question to be inquired into and the balance of convenience favours making an interim direction that the Crown should preserve the status quo until the release of the Tribunal’s report and recommendations.

The memorandum-directions state:

It therefore seems clear to us that given Treaty rights of a proprietary nature have been found to exist in specific freshwater bodies in previous Tribunal reports; the Crown has acknowledged that Maori do have rights in fresh water generally; and New Zealand's Court of Appeal has left open to question the nature and extent of such rights and interests; these issues warrant serious inquiry.

Although the Crown argued that the proposed sale of shares in the Mixed Ownership Model companies would not affect its ability to recognize Māori water rights, the Tribunal noted:

Where the Crown alters the nature of the shareholding of a Crown owned body utilising freshwater resources, it is in our view arguable that this may alter its ability, either in a legal or practical sense, to recognise any proven Treaty rights in such resources, or to remedy their breach.

The memorandum-directions also note that although there would clearly be an inconvenience to the Crown of a prolonged delay of the sale of shares, evidence given by Crown officials suggested that “there will either be a minimal delay to the Crown’s current plans if a report is issued in September, or no delay at all”.  Ultimately, the Tribunal considers that the balance of convenience therefore lies with preserving the status quo.

The Tribunal’s memorandum-directions conclude with an important reminder to the Government, referring to the judgment in the 1991 Radio Frequencies case of then Court of Appeal President Robin Cooke:

In short I am driven to hold that no reasonable Minister, if he accepted that the Crown is bound to have regard to Waitangi Tribunal recommendations on Maori broadcasting, could do other than allow the Tribunal a reasonable time for carrying out its inquiry. To allocate frequencies without waiting would be to abort its inquiry and probably contrary also to the purpose of the Treaty of Waitangi Act 1975. It would deprive the Government of the day of the opportunity of taking into account in an effective way highly relevant considerations, namely the findings to be made by the Tribunal.

The Doctrine of Discovery at the UN

The eleventh session of the United Nations PermanentForum on Indigenous Issues is taking place over this week and next week in New York. 

The Permanent Forum is an advisory body to the Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

The Permanent Forum is comprised of sixteen independent experts, who serve for a term of three years. Eight of the Members are nominated by governments and eight are nominated directly by indigenous organizations in their regions.  The current representative for the Pacific region is Valmaine Toki, a senior lecturer in the Faculty of Law at Waikato University.

According to its mandate, the Permanent Forum will:

• provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;
• raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system;
• prepare and disseminate information on indigenous issues.

The special theme for the current session of the Permanent Forum is “The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)”.

The Doctrine of Discovery is an international legal construct which was used by European states from the 15th century onwards to exert rights of conquest and dominance over non-Christian indigenous peoples.  The origins of the Doctrine can be seen in a decree issued by Pope Nicholas V in 1455.  This type of communication is known as a ‘papal bull’, and the papal bull which provides the basis for the Doctrine of Discovery is titled Romanus Pontifex. The particular purpose of this papal bull was to legitimise the King of Portugal’s claim to colonial territories in Africa. In doing so, Pope Nicholas V set out a framework for the subjugation of non-Christian peoples by Christian state of Europe.  The basic principle that underlies the Doctrine of Discovery is that Christian states could assert territorial authority and rights over lands and resources by virtue of “discovery”.  “Discovery”, in this context, was something that only Christian peoples could assert.  The first Christian state to assert territorial authority would be recognised, despite the fact that there may have already been non-Christian, indigenous societies established on those lands.  In Aotearoa, for example, Hobson proclaimed the sovereignty of the British Crown, in relation to the South Island, by virtue of discovery, despite the obvious presence of pre-exisitng Māori communities there.

The Doctrine of Discovery became a fundamental support for colonial powers and the process of colonization.  The Doctrine is reflected starkly in the way in which colonial legal systems have dealt with the rights of indigenous peoples.  In an influential decision of the United States Supreme Court from the 1820s, Chief Justice John Marshall describes the terms of the royal charter issued by the British Crown to assert authority in the Americas as follows:

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery] which has been mentioned.  The right of discovery given by this commission, is confined to countries “then unknown to all Christian people”; and of these countries Cabot [an explorer under patronage of King Henry VII] was empowered to take possession in the name of the king of Engalnd.  Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.

There is a clear injustice in the Doctrine of Discovery, which has been described by a former Special Rapporteur on the Rights of Indigenous Peoples as “The Framework of Dominance”.  In a presentation to the Permanent Forum this week, Moana Jackson urged people to remember that the effects of the Doctrine of Discovery have been far-reaching:

. . . while the Doctrine of Discovery was always promoted in the first instance as an authority to claim land of indigenous peoples, there were much broader assumptions implicit in the doctrine.  For to open up an indigenous land to the gaze of the colonising “other”, there is also in their view an opening up of everything that was in and of the land being claimed.  Thus, if the Doctrine of Discovery suggested a right to take control of another nationa’s land, it necessarily also implied a right to take over the lives and authority of the people to whom the land belonged.  It was in that sense, and remains to this day, a piece of genocidal legal magic that could, with the waving of a flag or the reciting of a proclamation, assert that the land allegedly being discovered henceforth belonged to someone else, and that the people of that land were necessarily subordinate to the colonisers.

It is because of its far-reaching consequences, the effects of which indigenous peoples continue to feel today, that the Permanent Forum determined that this topic should be the special theme for the current session.  Many states, churches, and other organisations have now formally rejected the Doctrine of Discovery.  While this is an important step, and certainly welcomed by indigenous peoples, the next step would be for those that have profited from the Doctrine of Discovery, to actively support indigenous peoples to undo the consequences of the application of the doctrine.

Submission on Mixed Ownership Model Bill

Below is a copy of my submission on the Mixed Ownership Model Bill to the Finance and Expenditure select committee.

Submission

I oppose the intent of this bill because the partial privatisation of the energy companies that are the subject of the bill will result in a loss of wealth and control for New Zealanders collectively. 

I reccommend that this bill not proceed.

General comments

While I am extremely concerned about the loss of wealth that will result from the partial privatisation of these companies and the flawed economic reasoning that underlies this bill, I wish to focus my submission on the loss of control, and in particular the loss of control that will affect the protection of Māori rights that are held under the Treaty of Waitangi.

The Treaty of Waitangi reaffirms the right of Māori communities to exercise tino rangatiratanga over their freshwater and geothermal resources. This includes rights, and corresponding obligations, to protect, preserve, control, regulate, use, and develop those resources. Māori have not willingly sold either their tino rangatiratanga or control over freshwater and geothermal resources.

There must not be a partial privatisation of any power generating State Owned Enterprises (SOEs), or the passing of any new legislation for such a purpose until an appropriate protection mechanism for Māori rights under the Treaty has been negotiated and agreed with Māori.

The partial sale of the power generating SOEs will make the prospect of securing section 27B resumption of any of the assets of the power generating companies highly unlikely. Māori will continue to have no adequate redress for their freshwater and geothermal claims and the pool of assets and range of potential remedies practically available to Māori claimants will be reduced.

Simply transporting the words of section 9 of the State Owned Enterprises Act 1987 into the new legislation will not provide effective protection of Māori rights.  Treaty obligations must continue to apply to the companies themselves, no matter who the shareholders are, if the Crown is to sell down its shareholding and its ability to exercise control over these companies in a way that is consistent with Treaty principles.

In order to effectively protect Māori rights and interests, any alternative formulation of the Crown's obligations would need to recognise the following:

a.  All available land or interests in land which are used or have been used for or in connection with the generation or transmission of hydro-electricity or geothermal electricity and are memorialised under section 27B of the SOE Act 1986 should be returned to Māori.

b.  Māori require compensation for past use of freshwater and geothermal resources, compensation for loss or rights or the ability to profit from economic use of those freshwater and geothermal resources (for example power production) and payment for future use of the proprietary interest in those freshwater and geothermal resources.

c.  Amendments need to be made to the Resource Management Act 1991 and any other relevant legislation required to provide for future Māori rangatiratanga and control over freshwater and geothermal resources.

Power generating SOEs should be retained in Crown hands, and should not be sold/privatised until such time as Māori claims are resolved or Māori otherwise agree and are satisfied with the protections offered by the Crown.

I would also like to register my objection to the process of consultation that has been undertaken on the issue of the protection of Treaty of Waitangi rights.  In short, it did not look like good faith consultation – it was unnecessarily rushed with consultation hui over only a week giving no time to discuss these important issues with whanau.  It is unacceptable that there were no hui in places like Taranaki or Te Tau Ihu.  I do not  think that it met the standards for consultation that are set out in the UN Declaration on the Rights of Indigenous Peoples, which the Government claims to endorse.

Specific comments

As noted above, I am opposed to the overall intent of this bill and recommend that it does not proceed.  However, should the committee determine that the bill ought to proceed, I reccomend that clause 45Q be amended for the reasons set out below.

Clause 45Q

I oppose this clause because it waters down the protection of Treaty rights that currently exists in relation to these energy companies by virtue of s 9 of the State Owned Enterprises Act 1987.  Currently, the Crown has full ownership and control of these companies and a Treaty principles provision that refers only to the Crown may be sufficient protection under the existing arrangements.  

However, 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 the Treaty principles provision would become virtually worthless. 

The Government has argued that third parties cannot be subject to obligations under the Treaty of Waitangi because those third parties are not party to the Treaty.  Yet, nobody is arguing that other shareholders are 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 does not make anybody else a party to the Treaty of Waitangi.  It does not bind non-Crown groups to Treaty provisions.  Third-parties’ rights would be affected by the legislation, not because they have somehow become parties to the Treaty.

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”?  If it is not possible to bind “non-Crown groups” there could be no doubt about the application of sub-clause 45Q(1).

I recommend that sub-clause 45Q(2) be omitted and clause 45Q be amended to read:

“Nothing in this Part shall permit the Crown, Genesis Power Limited, Meridian Energy Limited, Mighty River Power Limited, or Solid Energy New Zealand Limited to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”

Recommendations

For the reasons set out above, I recommend that this bill not proceed.

In the alternative, should the committee determine that this bill ought to proceed, I recommend that clause 45Q be amended as described above.

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.