- The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi);
- and Māori electoral representation.
- continues to affirm the importance of the Treaty as a foundational document
- ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
- supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
- sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and arrangements in which the Treaty is the foundation
- invites and supports the people of Aotearoa New Zealand to continue the conversation about the place of the Treaty in our constitution.
Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged ownersAn engaged owner is defined as an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee. Engaged owners should be able to make decisions (excluding sale or other permanent disposition) without the need for endorsement by the Māori Land Court.
Proposition 2: All Māori land should be capable of utilisation and effective administrationWhere owners are either not engaged or are unable to be located, an external manager or administrator may be appointed to manage under-utilised Māori land. The Māori Land Court should have a role in approving the appointment and retaining oversight of external administrators.
Proposition 3: Māori land should have effective, fit for purpose, governanceThe duties and obligations of trustees and other governance bodies who administer or manage Māori land should be aligned with the laws that apply to general land and corporate bodies. There should be greater consistency in the rules and processes associated with various types of governance structures.
Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputesDisputes relating to Māori land should be referred to mediation in the first instance. Where the dispute remains unresolved following mediation, it may be determined by the Māori Land Court.
Proposition 5: Excessive fragmentation of Māori land should be discouraged.Succession to Māori land should be simplified. A register should be maintained to record the names and whakapapa of all interests in Māori land, regardless of size.
- A new refocused national Māori organisation – concentrates on social and economic issues that impact on community development for all Māori; membership, direction and priorities mandated by the community, with robust and transparent measures designed to ensure accountability to Māori; legislation will need to be amended to remove outdated statutory responsibilities; or
- No change –New Zealand Māori Council continues along with the existing statutory responsibilities as outlined in the 1962 Act to:
- consider and discuss matters relevant to the social and economic advancement of Māori;
- promote, encourage and assist Māori to conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being; and
- collaborate with government departments on employment, education, training, housing and health.
Co-governance was a strong theme in settlement legislation this year. Many bills, especially those dealing with highly-prized waterways or other natural resources, appear to be drawing on some of the core ideas from the Waikato River Settlement. The Ngāti Hauāand Ngāti Koroki-kāhukura bills directly extend the Waikato River co-management regime. A number of the bills currently before the House include provision for co-governance mechanisms, not only between Māori and the Crown, but between two or more Māori communities. Perhaps the most striking example of the creative possibilities of co-governance models is the approach adopted in the Te Urewera-Tuhoe Bill. In that instance, a governance board is established with members appointed by Tūhoe and the Crown to act on behalf of Te Urewera itself. And there is also provision within that Bill for other iwi’s interests within Te Urewera. As this example illustrates, along with many of the other settlement bills introduced this year, Treaty settlements almost always need to take account of complex and inter-locking rights and interests. The settlement legislation this year covers areas such as the Waikato, Rotorua, and Te Tau Ihu where these inter-locking interests are evident and as more and more settlements are completed we are beginning to see an increasing amount of ‘cross-referencing’ that attempts to capture this complexity.
Te Urewera is declared to be a legal entity, having all the rights, powers, duties and liabilities of a legal person. The Bill provides that Te Urewera establishment land will no longer be vested in the Crown but will instead will be inalienable and vest in Te Urewera itself. The rights, powers and duties of Te Urewera are to be exercised on its behalf by a governance body to be established by the Bill, known as Te Urewera Board. The Board is to provide governance for Te Urewera by undertaking functions such as preparing and approving a management plan for Te Urewera, monitoring the implementation of that plan, making bylaws for Te Urewera, promoting and advocating for the interests of Te Urewera in statutory processes, and a range of similar activities. The Board will initially consist of four members appointed by the trustees of Tūhoe Te Uru Taumata and four members appointed by the Crown. From the third anniversary of the settlement date, the Board will consist of six members appointed by the trustees of Tūhoe Te Uru Taumata and three members appointed by the Crown. The chief executive of Tūhoe Te Uru Taumata and the Director-General of Conservation will be responsible for the operational management of Te Urewera in accordance with the plan and priorities adopted by the Board.
Even though the outcome of the Supreme Court decision is the same as the outcome of the High Court decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s reasoning. Justice Young found that the proposed sale of shares in Mighty River Power was not subject to an action in judicial review that is based on consistency with the principles of the Treaty of Waitangi. However, the Supreme Court disagreed, drawing for support on the approach of the Court of Appeal in the 1987 SOE case:
The Court of Appeal’s recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Māori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses. In re-enacting the identical provision to act consistently with Treaty principles, in the mixed ownership companies legislation, Parliament’s purpose is that the Treaty provisions in Part 5A carry the broad meaning, and be given the broad application reflected in the judgments of the Court of Appeal concerning s 9 in the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same interpretation as s 9 of the State-Owned Enterprises Act has received, particularly from the Court of Appeal in the SOE case, and also from the Privy Council in New Zealand Māori Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance. It is on that basis that we address the arguments of counsel concerning the legislation.
The Māori Affairs Select Committee supported the request of te whānau a Mokomoko to amend the bill by having a full Te Reo Māori translation included. The Select Committee report noted that translating the legislation before enactment would have the legal impact that the English and Te Reo Māori versions would be considered equal and the Committee commented on the positive impact that the dual translation could have on future legislation.