Tikanga & Law wānanga – Wairoa, 15 Oct

On Saturday 15 October 2016, I’ll be facilitating a wānanga on Tikanga and Law at Taihoa marae in Wairoa. This wānanga will look at some Ngāti Kahungunu stories to see where, in these stories, we can identify law – how are rights and obligations allocated? how are these enforced? who has authority to make decisions? what factors are taken into account?

The aim is to explore ways of strengthening Māori law and think about how we can use tikanga to resolve legal issues that our communities are dealing with.

See the pānui at the link below for more details and please register for free here if you would like to attend.

Pānui for Tikanga & Law wānanga, Wairoa, 15 October 2016: tikangalaw_wairoa

Waitangi Tribunal Report on the TPPA

The Waitangi Tribunal today released its Report on the Trans-Pacific Partnership Agreement. The headline is that the Tribunal did not find a breach of the principles of the Treaty of Waitangi in relation to the text of the Trans-Pacific Partnership Agreement (TPPA) and the form of the Treaty exception clause (cl 29.6). However, the Tribunal does note a number of serious concerns about the rights of foreign investors to bring claims against the New Zealand government under the TPPA and “the extent to which those claims or the threat or apprehension of them, may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwsise Treaty-consistent measures”. The Tribunal also makes a number of suggestions aimed at improving government engagement with Māori in relation to international treaty negotiations.

Claimants had initially sought an urgent hearing in June 2015 but at that time it appeared that there was no prospect of a Tribunal inquiry being completed before TPPA negotiations concluded. The Tribunal determined that there would be grounds for an urgent hearing once the text of the TPPA was released. TPPA negotiations continued through until October 2015 and the agreed text was made public on 6 November 2015. The Tribunal then convened an urgent hearing which was held from 14-18 March 2016 and was narrowly focused on two issues:

(a) whether or not the Treaty of Waitangi exception clause is indeed the effective protection of Māori interests it is said to be; and

(b) what Māori engagement and input is now required over steps needed to ratify the TPPA (including by way of legislation and/or changes to Government policies that may affect Māori).

The Tribunal looked to the findings of the Wai 262 Tribunal, which had recommended a sliding scale of Māori engagement in the development of international treaties that would be commensurate with the impact of those treaties on Māori interests. The Tribunal determined that “Māori interests are entitled to a reasonable degree of protection when those interests are affected by international instruments entered into by the New Zealand Government” and noted that it therefore needed to attempt the complex task of assessing the level of Māori interest in the TPPA.  The claimants contended that there were significant Māori interests at stake because the TPPA will restrict the Crown’s policy options across a range of different areas. The Crown, on the other hand, argued that “To the extent that Māori interests are impacted, those interests are primarily held as investors, businesses, or land owners.” The Tribunal disagreed:

“We find ourselves unable to accept the Crown’s characterisation of Māori interests put at issue by the TPPA as simply those they may hold as investors, businesses, or land owners. This seems to us to be an overly reductionist approach to Māori interests, and to the reach of the TPPA. It also misses in fundamental ways the findings and recommendations of the Wai 262 Tribunal.”

The Tribunal undertakes a detailed examination of the text of the Treaty exception. In doing so it relies on the evidence of three key expert witnesses, Dr Penelope Ridings (who gave evidence for the Crown), Professor Jane Kelsey (who gave evidence for the claimants) and Amokura Kawharu (who was commissioned as by the Tribunal). In terms of the scope of the Treaty exception, the Tribunal noted that “[t]he expert witnesses agree that the Treaty exception does not cover each and every act which the Crown might perform in fulfilment of its Treaty of Waitangi obligations.” This suggests to me that the TPPA is likely to constrain the Crown’s ability to implement Treaty-consistent law and policy.

The claimants also raised concerns that the Treaty exception clearly applied to state-state disputes but was unclear as to whether it also applied to investor-state dispute settlement (ISDS). In relation to this point the Tribunal noted

“At one point or another all three of the expert witnesses said that there was some ambiguity. Despite Ridings’ conclusion that the ambiguity is insignificant, this causes us some concern. The fact that the wording is materially unchanged from the Singapore FTA, which did not have ISDS provisions, is also of concern.”

The claimants also raised concerns about the potential chilling effect that potential litigation might have on government policy-making. In respect of these issues, the Tribunal found:

“We do not have the time, expertise, or sufficient evidential base to make findings as to whether the investment regime in the TPPA is likely to chill the capacity or willingness of the New Zealand Government to honour its Treaty obligations to Māori. If the TPPA is ratified, it will be a complex question of fact to determine whether a particular Crown act or omission in the face of an ISDS claim (or the threat or apprehension of one) is the result of prudent risk management, or the improper curbing of legitimate policy action due to a chilling effect. While the debate over the chilling effect can be factually and semantically complex, we do not doubt that it is an issue.”

Importantly, even though the Tribunal ultimately concluded that the Treaty of Waitangi exception in the TPPA offers a reasonable degree of protection to Māori interests, the report also highlights serious concerns in relation to ISDS, stating:

“We are not in a position to reach firm conclusions on the extent to which ISDS under the TPPA may prejudice Māori Treaty rights and interests, but we do consider it a serious question worthy of further scrutiny and debate and dialogue between the Treaty partners. We do not accept the Crown’s argument that claimant fears in this regard are overstated.”


“…we remain unconvinced that ISDS under the TPPA is low risk or not substantially different from exposure to ISDS unbder existing FTAs to which New Zealand is party.”

And the Tribunal did appear to leave open the door for future claims challenging Crown actions taken to implement aspects of the TPPA:

“If prejudice is alleged in future because of some Crown action or omission (short of introduction of a Bill) or inaction, then it remains open for Māori to submit a claim alleging a breach of the principles of the Treaty of Waitangi.”

The Tribunal also recommended that the Crown adopt a protocol that would govern New Zealand procedure in the event it became a party to an ISDS in which the Treaty exception clause was relevant. There was agreement amongst the expert witnesses that such a protocol should include:

  • a commitment to invoke the Treaty exception if there is an ISDS case concerning Māori;
  • a policy to lead expert Māori evidence where the Treaty exception may be invoked;
  • amicus curiae briefs for Māori to be encouraged;
  • a policy commitment to regular dialogue and consultation over the course of an ISDS case if it raises issues of concern to Māori;
  • in a case where the Treaty exception clause may be raised, Māori representation could be included as part of the New Zealand team;
  • a commitment to select an arbitrator with knowledge of Treaty principles and tikanga (and investment arbitration); and
  • if necessary, cooperate with the State of the investor to make a joint submission on interpretation of the Treaty exception (in the event it was considered that the arbitration tribunal was at risk of coming to an erroneous view).

Dear Dr Brash

Dear Dr Brash

Congratulations on your excellent piece in the Herald the other day. You really put those natives in their place, eh? Just like you did at Orewa. You must be feeling like it is 2004 all over again? Good times.

Although, I’m a bit concerned that you might have been a bit subtle in places. A lot of the racists that I know are not very bright and they might have missed some of your key messages. For example, you have that line about Hobson and the chiefs at Waitangi:

“to suggest that Governor Hobson really saw himself, on behalf of Queen Victoria, entering into a partnership with a large number of chiefs, many of whom could neither read nor write, has to be a total nonsense”

Great stuff. I particularly liked the “total nonsense” bit at the end. Some people think you need a reasoned argument to make a convincing point, but you’re right not to listen to them. Just add “total nonsense” or “ludicrous” to anything you disagree with. Only pointy-headed pinkos like Lord Cooke waste their time with logic and reason. But I still think you might need to be a bit more explicit about what you mean here. I can see that you are making the point that Europeans are superior to Māori, but I’m not sure everyone will have understood. I think you should have used the term “stone-age culture” like you did in 2011 or at least said “all cultures are not of equal value”, another of your classic lines from 2011, of course. Don’t be afraid of using that old material. Social Darwinism never goes out of fashion!

I know you have included little references to Treaty ‘breaches’ taking place “nearly 200 years ago” and the Treaty not applying to local government “176 years later”, but I think you could also be a bit more explicit in saying that New Zealand should not have to make good on its undertakings because the Treaty of Waitangi is so old. Some things get better with age – red wine, rejected politicians, etc. But we all know documents of a constitutional nature need to be thrown out as soon as the right people have got what they want out of it. The Magna Carta (1215) and the Bill of Rights (1688) are different of course. Nobody would suggest getting rid of those just because they’re really old. That would be total nonsense. Ludicrous.

One final thing – I remember with all that foreshore and seabed business that you proudly refused to read the Waitangi Tribunal report on the subject. Genius! It would have been difficult to hold the position you did if you had read it. Ignorance is bliss, right? I see that you obviously haven’t read the Waitangi Tribunal’s report on Stage 1 of the National Freshwater Inquiry either. Very sensible. Understanding Māori rights or the legal issues at stake will only get in the way of your message. Much better to just take a sensational quote from the first Māori person you can find. Best if they no longer hold office for any national representative body. As you are perhaps more aware than anyone, when you don’t have any mandate to speak on an issue, you’re free to say whatever crazy thought pops into your head.

Anyway, hope that is useful.

Keep up the good work.

Your friend,


P.S. Well done on deducing that Lizzie Marvelly was referring to you. Who would have known that “racist sentiment … from a disaffected group of extreme right-wing former politicians” was meant to be you? It is quite misleading of her to describe you and Muriel Newman as a group.

Year 176

Around this time of year I usually try to do a bit of a stocktake of the previous 12 months, taking in the broad landscape of the Treaty relationship. It is intended to be a reflective overview, taking a step back from issues to get perspective and context. But this year will be a little different, because while there is as ever a whole lot of activity taking place across a range of law and policy, when looking back at the Treaty’s 176th year, scanning the horizon, there are two big issues which, it seems to me put everything else in the shade: the Trans-Pacific Partnership (TPP) and the Te Ture Whenua Māori reforms. Both of these issues have been bubbling away for some time but it is within the last 12 months that things have really heated up on both fronts. And both have seen significant developments on the eve of Waitangi Day.

First, the TPP.  It seems to me that there are many things to be concerned about with regards to the TPP. One area is the way in which Māori rights will be affected. I’ve set out the reasons why, despite the Treaty of Waitangi exception clause, I think the TPP is problematic for Māori in a paper that I co-authored with colleagues from the University of Auckland. I’ve tried to express some of the same points in a few media spots over the last little while (see here and here and here). Essentially, the central issue is that the TPP gives parties without Treaty of Waitangi obligations an interest in NZ law and policy in areas where Maori already have concerns about Treaty compliance. The exception is weak in part because it relies on NZ government to have the will to stand outside the general rules of the TPP (and we’ve seen with issues such as foreshore and seabed and water rights that the government is often reluctant to recognize Treaty interests at the best of times). Other TPP parties may still challenge NZ govt action under the exception (even if not the NZ government’s interpretation of the Treaty of Waitangi). And the exception clause does not address issues that do not involve favourable discrimination for Maori (for example, a universally applicable ban on fracking might be deemed necessary to protect Māori interests under the Treaty and such action would not be covered by the exception clause). Under all of this of course is a process that has fallen well short of the expectations around consultation that arise from Treaty principles and the UN Declaration on the Rights of Indigenous Peoples. But, as I say, there are many other aspects of the TPP that are worrying. The full text of the TPP is available on MFAT’s website and for good analysis and information on different parts of the TPP, I would encourage everyone to take a look at the series of expert paper that are available here.

The review of Te Ture Whenua Māori Act/The Māori Land Act 1993 has also illustrated a disturbing “government knows best” attitude. In May 2015,  the government released a draft bill (or ‘exposure bill’) for discussion and consultation purposes. I have noted previously that I thought the original consultation process was entirely unsatisfactory for a major reform of a complex piece of legislation which will have significant consequences for Māori. The review of Te Ture Whenua Māori Act was subsequently the subject of three urgent claims made to the Waitangi Tribunal. The Tribunal convened an urgent hearing of these claims in November and December 2015. Yesterday, just a day before Waitangi Day, the Tribunal released a draft chapter from its report on these claims. The release of the draft chapter ahead of the remainder of the Tribunal’s report is explained in the Presiding Officer’s letter of transmittal as follows:

The tribunal suddenly faces the situation that the Crown has decided to embark on a further series of ‘informational hui’ on 9 February 2016 only weeks before our full report was to be released. The tribunal has reached conclusions on the treaty implications of the process of the review and the consultation undertaken by the Crown with Māori.

Because of the importance of those conclusions, we consider it is very important for the Crown and the February hui participants to at least have some opportunity to be informed as to the tribunal’s views on the treaty implications of the review process and consultation methods utilised now, rather than afer those hui conclude.

The Tribunal found that

the Crown will be in breach of Treaty principles if it does not ensure that there is properly informed, broad-based support for the Te Ture Whenua Maori Bill to proceed. Maori landowners, and Maori whanau, hapu, and iwi generally, will be prejudiced if the 1993 Act is repealed against their wishes, and without ensuring adequate and appropriate arrangements for all the matters governed by that Act.

The Tribunal recommended that the Crown ensure there was  properly informed, broad-based support for any amendments to Te Ture Whenua Māori Act. If such support cannot be achieved for the current proposed reforms, then, the Tribunal recommends, the Crown ought to engage with Māori stakeholders to determine what amendments to the current Act are necessary or desirable.

The issues relating to both the TPP and the Te Ture Whenua reforms look likely to rumble on for some time yet. I know that these are just two issues (albeit, big and important issues) that engage the Treaty relationship. But they do seem to encapsulate a sense of the health of that Treaty relationship as it enters its 177th year.

The Herald disagrees with me on the TPP

The editorial in the NZ Herald today suggests that Māori are being poorly advised on the TPP. In particular the editorial takes issue with some comments of mine that were published in the Herald this week. My explanation of why Māori (and other New Zealanders) ought to be worried about the TPP was “difficult to understand”. I will try to clarify a few points that the editorial writer seems to be confused about.

First, the editorial asserts that Māori rights have not been affected by free trade agreements that are already in place. The evidence for this is the continuation of the Treaty settlement process. Treaty settlements have not been challenged for providing favourable discrimination to Māori.

There is a simple reason for this: Treaty settlements do not provide favourable discrimination to Māori. These settlements are negotiated agreements to provide redress for Crown action that has been in breach of its Treaty obligations. Most settlements represent 2-3% of the value of land that was taken in breach of the Treaty. The Crown is the party that is receiving favourable treatment in Treaty settlements.

If Treaty settlements are going to move us towards any kind of reconciliation, the government also needs to stop creating new Treaty breaches. That means it needs to make current law and policy consistent with Treaty principles. This is an area where there has been very little movement. To give one example, the Waitangi Tribunal reported in 2011 on a set of claims addressing law and policy across a range of government activity, including things like environmental management and intellectual property rights – some of the things which are covered by the TPP. This report found the current law and policy setting in these areas were inconsistent with Treaty principles and made specific recommendations for reform that would address those inconsistencies. Nearly five years later, the government has not yet formally responded to the Tribunal’s recommendations. This is an indictment on the government. The possibility that any action it takes might be open to challenge under a free trade agreement I am sure has not helped to stiffen the government’s resolve to give effect to Māori rights.

Which leads to the issue of whether the Treaty exception in the TPP and other free trade agreements really do prevent the government from being challenged on these matters. Contrary to what trade lobbyists would have us believe, the Treaty exception in the TPP does not exempt government action from challenge. The government’s interpretation of the Treaty is not able to be challenged but their actions may be. If another party to the TPP views such action as “arbitrary or unjustified discrimination” or “as a disguised restriction on trade in goods, trade in services and investment”, then actions of the New Zealand government can be challenged. This is explicitly set out in the Treaty exception clause. This clearly does not remove the threat of challenge to actions the government might take  to fulfill its Treaty obligations. And even if other TPP parties do not have strong legal arguments to support a claim of unjustified discrimination, the threat of a challenge is usually enough to give a government second thoughts. To give one example noted by a United Nations Independent Expert:

Ethyl Corporation, a Virginia corporation with a Canadian subsidiary, submitted a claim alleging that a Canadian statute banning imports of the gasoline additive MMT breached the obligations of Canada. Rather than fight, Canada withdrew the ban, notwithstanding health dangers.

Most importantly, the process by which the TPP has been negotiated should not be acceptable. The government has specific obligations to engage with Māori over matters which will affect Māori rights. Throughout the TPP negotiations, there was little attempt to find out what Māori concerns were or how Māori would like to see their rights protected. Much as I love being told by editorial writers and retired diplomats how grateful Māori should be, I would much rather the government took its obligations to Māori seriously, ensured that there was good information publicly available throughout the TPP negotiations, and actually worked with Māori as partners as the Treaty envisaged.

Indigenous Legal Education: Columbia University

This post is another installment in a series on Indigenous legal education in North America. Previously, I’ve posted on programmes at three Canadian universities: the University of Victoria; the University of British Columbia; and Osgoode Hall Law School at York University. This post reflects on the Indigenous Peoples’ Rights programme at Columbia University, which has quite a different focus.

Interestingly, the Indigenous Peoples’ Rights programme is not run out of the law school at Columbia. Instead, it is part of the Institute for the Study of Human Rights (ISHR). ISHR has been operating for nearly 40 years and has always had a strong focus on interdisciplinary study of human rights. The current Director of Indigenous Peoples’ Rights Program is Elsa Stamatopoulou. She is also cross-appointed with the Center for the Study of Ethnicity and Race and the Department of Anthropology at Columbia which is an indication of, not only the interdisciplinary perspective that underpins the programme, but also the particular connections with cultural and anthropological research. The work of faculty members from the Department of Anthropology, such as Elizabeth Povinelli, Audra Simpson, and Paige West provide important points of reference for the Indigenous Peoples’ Rights programme. This frames the discussion of Indigenous rights quite differently than a more legalistic approach.

However, the recognition and implementation of Indigenous peoples’ rights at an operational level is also a key driver of the programme. Professor Stamatopoulou has considerable experience working with Indigenous rights within the UN system and she has helped to ensure that the Indigenous Peoples’ Rights programme offers practical engagement with UN mechanisms.

The ISHR offers an annual Indigenous Studies Summer Programme on Indigenous Peoples’ Rights and Policy. The programme attracts participants from around the world, many of whom are practitioners, activists, and members of civil society organizations, working at the coal face of Indigenous rights. This brief programme description highlights the importance of the interdisciplinary approach and experiential elements of the programme, as noted above:

The program provides an overview and analysis of the major questions in indigenous affairs today as they have emerged globally in the last decades, culminating with the adoption of the UN Declaration on the Rights of Indigenous Peoples. The course will analyze the interaction between the Indigenous movement—one of the strongest social movements of our times—and the intergovernmental system over the past 50 years, paying close attention to its questioning of and impact on international norms, institutions and major global debates. The program will use an interdisciplinary approach, and discussion will be presented under the lens of human rights studies, international law, political science, Indigenous studies, ethnic studies, development studies, sociology and anthropology. The course incorporates lectures and workshops on the most recent and innovative academic and other research and policy debates on indigenous peoples issues. It is complemented by visits to the United Nations and a Native American Nation, lectures and discussions with United Nations officials, officials of a Native American Nation and representatives of Indigenous organizations.

Alongside the delivery of the summer programme and other courses, the Indigenous Peoples’ Rights programme helps to promote the study of Indigenous rights and bring together relevant research and researchers through a range of other initiatives and activities such as the Columbia University Seminar Series on Indigenous Studies and more focused seminars such as those that have brought together Indigenous Women Leaders. Although in quite a different context, this reinforces something I have previously noted in relation to the Canadian law school programmes – the importance of maintaining a range of inter-connected measures that support research, study, and teaching in the field of Indigenous legal education.

Indigenous Legal Education: Osgoode Hall

Osgoode Hall Law School at York University in Toronto has an Intensive Program in Aboriginal Lands, Resources & Governments which has been running for over twenty years. The programme was developed to

effectively improve law students’ understanding of Aboriginal issues and their ability to serve First Nations effectively on their own terms.

The programme is a mix of classroom-based work and field placements. Each student in the programme completes a seven-week long field placement working with an organisation that focuses on Indigenous legal issues. This might be working with an Indigenous organisation, a law firm specializing in Indigenous issues, or a relevant government or public sector agency. These placements may be in Canada or abroad. Over the last year, students have undertaken placements with the following organizations:

  • Assembly of First Nations
  • Chiefs of Ontario
  • Keewaytinok Native Legal Services
  • Windigo Tribal Council
  • British Columbia Treaty Commission
  • Nunavut Department of Justice
  • Ontario Aboriginal Affairs Secretariat
  • Yukon Department of Justice
  • Cape York Land Council, Australia
  • First National Development Institute, Botswana
  • Inter-American Development Bank, Washington, D.C.
  • Maori Legal Service/Te Ratonga Ture Community Law Centre, New Zealand

The placements provide opportunities for a range of experiential learning and as with clinical programmes at other law schools, are intended to both help to meet an urgent need for legal services and also give the students practical experience and an insight into the legal issues faced by Indigenous communities. Students undertake preparatory work before their placements and then present seminars on their experiences after they have returned. This allows from critical reflection on Indigenous legal issues and also enables students to take a step back from their own particular placement and get to grips with some deeper questions as they engage with their classmates.

A more recent development at Osgoode Hall picks up on another strand of Indigenous legal education. In September 2014, the law school organised its first Anishinaabe Law Camp. In part modeled on the long-running Aboriginal Awareness Camp held at the University of Victoria, the Anishinaabe Law Camp aims to focus on Indigenous law, in particular to encourage engagement with Anishinaabe legal traditions. Organised in collaboration with the Chippewas of Nawash, the camp has been held on their community’s reserve land north of Toronto in each of the past two years and is quickly becoming an established part of the law school calendar. Osgoode Professor Andrée Boiselle and UVic Professor John Borrows and his daughter Lindsay (who are from this community) have been instrumental in establishing this camp and ensuring this further dimension of Indigenous legal education is part of the law school programme. For a nice summary of the kind of experience that this provides for law students, see this piece written by one of the attendees at this year’s camp.