Māori Law Review re-launch

The Faculty of Law at Victoria University of Wellington is hosting a function to celebrate the re-launch of the Māori Law Review and the Review’s association with the Faculty.

It will be held at 5:30pm on 3 October 2012. The venue is at the Law Faculty.

Download the invitation if you would like to attend. The RSVP address is on the invite.

If you have any questions about the launch function please email

carwyn.jones@maorilawreview.co.nz

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.

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.