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.
The 172ndyear 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 173rd year in the life of the Treaty of Waitangi is shaping up to be another interesting one in the development of the Treaty relationship.