Mike’s insightfulness and knowledge

I laughed out loud when I read Mike Hosking’s rant about Waikato-Tainui’s treaty claim to part of the Auckland region. It was his usual uninformed, reactionary nonsense. You know, fact-free – top to bottom, left to right.

A week or so back, you might remember he had a piece about needing to wrap up the whole Treaty of Waitangi process. I don’t, but I think I get the idea.

You’d hope someone who was making public comment on the Treaty claims and settlement process might have at least tried to read something about it. Maybe even taken a look at a Waitangi Tribunal report or two. After all, the Tribunal is 40 years old. If you can’t, with 40 years’ worth of carefully researched Tribunal reports, work out that the value of Treaty settlements is miniscule compared to the value of land and resources that were wrongly taken from Māori, you’re asleep at your computer keyboard.

We need a deadline and we need to stick to it. The Crown should set a date when it will stop breaching the Treaty and start offering Treaty settlement redress that properly acknowledges the value that the Crown and the New Zealand public continue to receive from Treaty breaches (in other words, value that comes at the expense of Māori). We’ve talked about deadlines before, but it is usually been in the context of extinguishing Māori rights contrary to any principle of justice because people think waiting 40 years to resolve these issues is a long time. Try waiting 175 years.

The commitment that New Zealanders – Māori and non-Māori alike – have made to finding a resolution to long-standing grievances is laudable. No one doubts that wrongs were committed. The evidence is incontrovertible. No one doubts some sort of recompense needed to be sorted. Principles of justice usually require that when your property is taken either your property or compensation to the value of that property be returned to you. We are lucky that Māori have accepted that settlements comprising substantially less than the value of their land, along with apologies and other components of modern settlements, will be deemed to have put right a lot of wrongs.

So, are the over-excited comments of one media blowhard about Tainui ‘claiming Auckland’ worth worrying about? Well, asserting that the Crown’s generosity is being taken advantage of in the Treaty settlement process is, to be blunt, taking the piss. And someone needs to call him on it.

These opinions only get legs because they’re not seen for what they are – farcical. Just because you say it out loud, on multiple media platforms, doesn’t make it real, or plausible, or sensible, or in this case even worth listening to.

What I have noticed over the years with the Treaty process is that by indulging the mad end of the spectrum (think Don Brash at Orewa), you open the door for other racists.

I think back to the asset sales of election year. Most people expect that the Government will act within the law. If the law requires the Government to act consistently with Treaty principles when selling public assets, hey guess what? The Government cannot just say “We’re the Government, and if we want to sell something, we can.” The Government must comply with the law. Most people would say that was a good thing. But then Mike Hosking isn’t most people. Clearly. Because most people wouldn’t describe a case that went all the way to the Supreme Court as “Day one, their case fell over”. I could go into a lot more detail explaining the significance of the Supreme Court decision in the context of a long line of cases in which our higher courts have elaborated on the Crown’s legal obligations with respect to Treaty principles, but Mike doesn’t appear to be interested in either understanding or explaining issues accurately. What a waste of time.

Mike also doesn’t seem to have much of a sense of irony. Otherwise, how could he claim, with a straight face, that the problem is that those genuinely looking for solutions have been swamped by the headline grabbers and the opportunists? I know how you feel, Mike.

Good will only goes so far. If Treaty settlements are to be durable, they must be underpinned by principles of justice. All New Zealanders should demand nothing less. Resolution of these claims will require give and take on both sides. It will also require a genuine desire to understand the complexity of the substantive issues and the process for settling historical claims. I’m pleased to say that most New Zealanders I know are ready and willing for this challenge. They want to understand. They want to be part of a process of putting things right. They want to treat people with respect and be treated respectfully by others. They’re well beyond the limits to which Mike’s narrow thinking constrains him. And by quite some margin.

Trans-Pacific Partnership Agreement Claims before the Waitangi Tribunal

The Waitangi Tribunal recently heard arguments as to whether it ought to grant an urgent hearing of claims opposing the Crown signing the Trans-Pacific Partnership Agreement (TPPA). On 7 July 2015 the Chairperson of the Waitangi Tribunal appointed Judge Mike Doogan (Presiding Officer), Tania Simpson, David Cochrane, Sir Doug Kidd, and Sir Tamati Reedy as the panel to inquire into the TPPA claims and to determine, as a preliminary step, whether the claims ought to be granted an urgent hearing. Yesterday, the Tribunal released its decision declining an urgent hearing on the terms sought by the claimants but indicated that there was a good case for the Tribunal to grant urgency or priority to hearing these claims once the text of the TPPA is available.

The claimants include a number of prominent Māori individuals, such as Moana Jackson, Hone Harawira, Angeline Greensill, Papaarangi Reid, and Rikirangi Gage. Subsequent claims relating to the TPPA were lodged by other individuals and organisations, including the New Zealand Maori Council (though it now appears that the Council is dealing with some internal issues in relation to their claim). The claimants’ key concerns are that the Crown’s actions in relation to the TPPA have failed to recognise tino rangatiratanga as guaranteed under the Treaty of Waitangi. Moreover, entering into the TPPA will constrain the Crown’s ability to give effect to its obligations under the Treaty. In short, there is a conflict between Māori rights and the TPPA and the Crown has not meaningfully consulted with Māori in order to understand Māori views or be fully informed of how Māori rights will be affected. The claimants have also expressed concern about the secrecy with which the Crown has approached the TPPA negotiations which has left Māori “unable to exercise their rights under te Tiriti to engage in an informed way in decision-making on the TPPA”. The Statement of Claim alleges that the proposed TPPA will cause the claimants prejudice including loss of Māori intellectual property rights; the ability for foreign states and investors to challenge Crown policies that aim to fulfill Treaty obligations; and constraining access to affordable medicines, and prejudicial effects on Māori forestry rights and ability to exercise kaitiakitanga.

In his memorandum-directions of 14 July 2015, Judge Doogan identified two issues that make it difficult for the Tribunal to determine whether to grant an urgent hearing of these claims. The first is the secrecy of the TPPA negotiations and the fact that the text of the TPPA will not become publicly available until its terms have been agreed by the parties. The second issue is the timing of the TPPA negotiations. TPPA trade ministers met from 28-31 July 2015 in Hawai’i and it was originally envisaged that negotiations could be concluded in late July-early August 2015. The Tribunal resisted recommending that the Crown delay negotiations to enable a Tribunal inquiry to take place but it is clear that the Tribunal would not have been able to substantively inquire into and report on the complex issues involved in these claims within a matter of a few weeks. As it turned out, the TPPA negotiations in Hawai’i could not reach agreement on a number of substantive issues and so it appears the TPPA timeline will inevitably be delayed in any case.

When hearing arguments on the matter of urgency, Tribunal members questioned the Crown about their consultation with Māori and how this could be done effectively given the secrecy surrounding the TPPA negotiations. The lack of transparency has also been an issue of concern for other New Zealanders who remain wary about the TPPA.

Dealing with the practical issues of both timing and secrecy feature prominently in the Tribunal’s decision on the matter of urgency released yesterday. The Tribunal reiterated its concern about the late stage at which the claims were filed when the deficiencies in the Crown process that were alleged were evident much earlier. Confirming its preliminary view, the Tribunal noted:

Even allowing for the fact that an assessment of prejudice is inherently difficult given the secrecy of the TPP negotiations, we are not convinced that there is a proper basis to intervene, or attempt to intervene and exercise what limited recommendatory or inquiry powers we have at this final stage of the TPP negotiations.

However, that was not the end of the matter. The Tribunal remained concerned that Māori would be prejducially affected by New Zealand entering into the TPPA but noted that the secrecy of the TPPA negotiations made it impossible to assess the nature and extent of any prejudice at this stage. The Crown had rejected the suggestion that an independent lawyer be appointed to review the Treaty exception clause in the TPPA which might have gone some way to assuring the claimants that Māori interests are being protected. So, the Tribunal concluded, there are still outstanding issues to be addressed and they can be properly considered as soon as the text of the TPPA is made available. The two key issues that the Tribunal identified are:

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

(b) what Maori 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 Maori).

It may be that if the final stages of the TPPA negotiations are pushed out beyond the 2016 US Presidential election that broader issues could be considered in the inquiry. The Tribunal indicated that it would issue further directions once the TPPA timeframes become clearer, but that in principle, it would appear appropriate for a hearing of these claims to proceed as soon as possible after the text of the TPPA is made available.

Te Ture Whenua Māori Reform

The central piece of legislation governing Māori land, Te Ture Whenua Māori Act 1993, has, over the last couple of years, been the subject of a major review. A discussion document was produced in May 2013 with a final report from an expert panel released in May 2014. After a period of consultation (and also following the 2014 General Election and a change of ministerial portfolios, including the appointment of a new Minister of Māori Development), a ministerial advisory group was appointed in February 2015 to progress the high-level reforms recommended by the expert panel towards the introduction of a bill to replace Te Ture Whenua Māori. At the end of May 2015 a draft bill (or an ‘exposure bill’) was released along with a consultation document. Consultation hui began almost immediately after that and submissions were originally due by 3 July 2015. That deadline was subsequently extended to 7 August 2015.

The Bill is complex and provides a radical overhaul of Māori land law rather than simply being directed at fixing some of the problematic issues of Te Ture Whenua Māori. I do not intend to provide a detailed analysis of the Bill here, but some striking features include:

– the Bill significantly reduces the role of the Māori Land Court, which may be supported by some Māori land owners, but will be of concern to others;

– the purpose of the Bill weakens the emphasis on rentention of Māori land in the hands of its owners that is currently present in the Act; and

– the Bill introduces a raft of new terms and definitions that one imagines will create a period of some uncertainty as the interpretation and application of those terms are tested in the courts.

I would make just a couple of further points in relation to the consulation process. First, the consultation document that was released with the draft bill is pure PR spin. It is not at all helpful in understanding how the bill will change the legislation governing Māori land. In fact, I would go so far as to say that reading the consultation document is actually an obstacle to understanding those changes. Also, it is difficult to see how any useful feedback on a bill that is the size and complexity of this one could be gleaned from consultation hui that took place largely before Māori communities had an opportunity to get to grips with the detail of the bill and have internal discussions about the implications of the proposed changes.

As noted above, submissions now close on 7 August 2015. The Minister has stated that he is aiming to introduce a bill in to Parliament before the end of the year.

UPDATE: The Minister has now announced that he “intends to allow for more time to develop the Ture Whenua Māori Bill within an expanded work programme” with the aim of introducing a bill into the House early next year.