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.

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.

Year 175

The past twelve months represent the 175th year in the life of the Treaty of Waitangi. There has been movement on a number of fronts over the last year that has ultimately suggested some very interesting directions in which the Treaty partnership is growing.

Although I recently argued that we should not limit ourselves to thinking about the Treaty as being only relevant to the settlement of historical claims, a number of interesting developments have arisen out of that context over the last year.

One of most significant developments in the Treaty settlement space was the enactment of legislation to give effect to aspects of the Tūhoe settlement. The Tūhoe Claims Settlement Act 2014 and the Te Urewera Act 2014 were both enacted in July last year. There are a number of notable aspects to this settlement, not least the new governance arrangements for Te Urewera. Further details about the key elements of this settlement can be found in the Māori Law Review’s special issue on the subject.

The Waitangi Tribunal Te Urewera report is itself an important part of the context of the Tūhoe settlement and the fifth part of that report, focusing on issues relating to Lake Waikaremoana, was released in December. This was one of a number of significant Tribunal reports released towards the end of 2014. Others were the reports on:

The report on Stage 1 of the Te Paparahi o te Raki Inquiry undertook a detailed analysis of the meaning of He Whakaputanga (the 1835 Declaration of Independence) and Te Tiriti, as it would have been understood by those in the North in 1840. As I noted at the time of the report’s release, the Tribunal’s central finding was that the rangatira who signed the Treaty of Waitangi in February 1840 did not cede their sovereignty by doing so.

The Tribunal’s report on the Māori Community Development Act review, Whaia te Mana Motuhake / In Pursuit of Mana Motuhake, takes up the discussion of tino rangatiratanga in a 20th and 21st century context and also connects the Treaty to a wider discussion of international indigenous rights. If Te Paparahi o te Raki was the Tribunal’s most comprehensive consideration of the issue of sovereignty and the Treaty’s relationship with He Whakaputanga, then Whaia te Mana Motuhake is its most comprehensive engagement with international indigenous rights, giving particular consideration to the relationship between the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In this report the Tribunal identifies specific articles of the UNDRIP that support various Treaty principles and assist our understanding of how those Treaty principles ought to apply.

Indigenous rights at an international level were in the spotlight at the UN this year with the World Conference on Indigenous Peoples (WCIP) being held as a High Level Plenary Meeting of the General Assembly in New York in September 2014. As I noted in a previous post, one of the key elements of the WCIP was the adoption by the General Assembly of an outcome document that commits member states and UN bodies to develop mechanisms for the practical implementation of the rights of indigenous peoples. As the Tribunal’s approach in Whaia te Mana Motuhake illustrates, these international developments are becoming increasingly important to understanding the application of the Treaty and the nature of the Treaty relationship.

While the New Zealand Māori Council was central to the Tribunal’s report Whaia Te Mana Motuhake (both as claimant and, at least in part, as the subject of the claim), the Council was also continuing to pursue issues around water rights and, in particular, giving expression to Māori water rights. The Council has recently proposed a framework for water policy that includes the establishment of an independent commission that would:

  • monitor the water take levels, set water prices and allocate water use rights through a mechanism to be determined by it
  • deal with all water bodies including aquifers and geothermal
  • use funds to reclaim water consents; undertake research; monitor water use; foster water storage and reticulation projects; and implement pollution reduction and environmental restoration programs
  • allocate a proportion of revenues to Māori in recognition of the Māori proprietary interest and taking account of previous non-recognition. The funds allocated to Māori shall be applied for the particular needs of Māori in relation to water supplies for marae, papakainga, and general Māori housing, to engage Māori in the restoration of customary waterways and to enable Māori to develop commercial operations utilising water.

It appears that water is going to very much be part of a continuing conversation between Treaty partners as we mark the 175th anniversary of the signing of the Treaty at Waitangi and move into the 176th year in the life of the Treaty partnership.

Year 174

At this time of year, I like to reflect on the 12 months gone by and take stock of the Treaty relationship. The 174th year of the Treaty of Waitangi saw several important government reviews that address matters directly relevant to the Treaty relationship. It was another busy year in terms of Treaty settlements and some major pieces of settlement legislation were introduced. A well-publicised decision in the Supreme Court re-strengthened Treaty principles. And the New Zealand legal system shows signs of beginning to operate in a more bicultural way.
The year in reviews
2013 seemed to be a year in which a number of important elements of the Treaty relationship were under review in some way or other. 
The Constitution Conversation
Perhaps most significantly, the Constitutional Advisory Panel’s report was released. The Panel’s terms of reference specifically directed it to considertwo areas that specifically relate to Māori:
  • The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); 
  • and Māori electoral representation.

The Panel has recommended that the Government:
  • 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.
 As I noted at the time the Panels report was released, I am not sure that this really takes us much further in the constitutional conversation, though I believe the Panel was always going to be constrained in its recommendations because of its narrow terms of reference and its politicized origins.
Note that the far more wide-ranging work being undertaken by Matike Mai Aotearoa – the independent working group on constitutional transformation that is being led by Moana Jackson and Margaret Mutu is continuing. This group has conducted over 200 hui around the country between 2012-2013 and is beginning a round of feedback hui with a meeting at Waitangi today.
Te Ture Whenua
Te Ture Whenua Māori Act 1993, which is the key piece of legislation that regulates Māori land, was also the subject of a government review this year. A four-person panel sought feedback in April 2013 on five key propositions:

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 manageror 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.

When originally established, the panel was due to report to Government by December 2012. These timelines were extended, but there have been no public announcements on this matter since submissions closed over six months ago.
The  New Zealand Māori Council
The Government also initiated a review of the Māori Community Development Act last year. This is a significant piece of legislation in the context of the Treaty relationship because it is the Act that governs the New Zealand Māori Council and the Māori Wardens. A discussion paper was released in August 2013 presenting two broad options for the future of the New Zealand Māori Council:
  • 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. 
The paper also sought feedback on the structure of the New Zealand Māori Council and the roles and responsibilities of Māori Wardens and proposals to re-establish Community Officers. Members of the New Zealand Māori Council filed a claim with the Waitangi Tribunal alleging that the process that the Crown had adopted for reviewing this important piece of legislation was in breach of the principles of the Treaty. In December 2013, the Waitangi Tribunal agreed to convene an urgent hearing to hear some aspects of the New Zealand Māori Councils claim.
  
Treaty settlements
Not only has this been another busy year for groups involved in Treaty settlements, but there have also been some major developments in this area. The number of agreements signed and the progress of settlement legislation through Parliament gives a clear indication of the work taking place in this sector. In a summary written for the Māori Law Review of settlement legislation before the House in 2013, I noted:

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 iwis 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.

The arrangements in relation to Te Urewera are amongst the most notable developments in the Treaty settlement arena. As described in the Māori Law Review summary of the Te Urewera-Tuhoe Bill, the key mechanisms are as follows:

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.

Water and State-Owned Enterprises
One of the more high-profile Treaty-related developments of 2013 came near the start of the year when in February the Supreme Court issued its decision in New Zealand Māori Council v Attorney-General and dismissed the Māori Councils appeal in relation to the proposed partial privatisation of Mighty River Power. This meant that the Government could proceed with the sale of shares in Mighty River Power, but the decision also reinforced Treaty principles.  As I noted at the time:

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 Appeals 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, Parliaments 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.

Consequently, the Supreme Court determined that decisions in relation to the sale of shares in Mixed Ownership Model companies can be challenged on the basis of inconsistency with the principles of the Treaty of Waitangi.  This is, I think, an important re-strengthening of Treaty principles.
Nevertheless, the Court went on to conclude that, because there was no material impairment to the Crowns ability to recognise Māori rights or provide redress, the sale of shares would not be inconsistent with Treaty principles. 
However, I would venture to suggest that this is not the last we have heard about rights to water.
Steps towards a bicultural legal system?
The past 12 months have also seen some positive developments in the way that the New Zealand legal system engages with the Māori world.
In December 2013, five candidates were admitted as barristers and solicitors of the High Court in a ceremony that was, for the first time, conducted in te reo Māori.
Another first was the enactment of a bilingual statute. The Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013 gives effect to an agreement between the Crown and the descendants of the rangatira Mokomoko for the Crown to obtain both statutory recognition to the free pardon granted to Mokomoko in 1992 and a declaration that the character, mana and reputation of Mokomoko and his uri (descendants) are restored. Mokomoko was a rangatira of Whakatōhea who was wrongly convicted of murder and executed in 1866. He was subsequently pardoned in 1992.
As I noted in the Māori Law Review report on the Bill:

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.

And this was also in a year in which two important books were published that speak directly to the bicultural dimensions of our legal system. The first is Te Mātāpunenga: A Compendiumof References to the Concepts and Institutions of Māori Customary Law. The second is He Papakupu Reo Ture: A Dictionary of Māori Legal Terms. Both are significant resources that are set to make an important contribution to the way in which New Zealand law approaches Māori issues.

This may only be tentative first steps and have arguably been a long time coming, but, in the 174th year of the life of the Treaty of Waitangi, they are encouraging signs nonetheless.

High Court decision in Mighty River Power case

Justice Ronald Young has issued his decision in the High Court litigation brought by the New Zealand Māori Council to challenge the Government’s decision to proceed with the sale of shares in Mighty River Power (New Zealand Māori Council v Attorney-General, available on the Courts of NZ website).  Justice Young found that none of the decisions taken by the Crown to advance the sale of those shares were reviewable, that is, those decisions could not be reviewed by the courts.  Furthermore, Justice Young concluded that even if the decisions were reviewable, none of the grounds for review that were argued by the Māori Council would succeed.
The New Zealand Māori Council (joined by the Waikato River and Dams Claims Trust and the Pouakani Claims Trust) sought to challenge three key decisions made by the Crown:

(a)  the direction by the Cabinet to the Governor-General to bring into force by Order in Council the State-Owned Enterprises Amendment Act 2012. This has the effect of changing the status of Mighty River Power (‘MRP’) from an State-Owned Enterprise (SOE’) to a Mixed Ownership Model (‘MOM’) company; 

(b)  amending the constitution of MRP (and later the other SOE companies) which currently requires 100 per cent of the shares to be held by the Crown through the relevant Minister, to permit 49 per cent ownership by private persons; and 

(c)  offering for sale and selling up to 49 per cent of the shares in MRP.

The Māori Council contended that, with respect to each decision, the Crown must act in a manner that is not inconsistent with the principles of the Treaty of Waitangi.  This argument was premised on the decisions being subject to the Treaty principles provision in either s 9 of the SOE Act or s 45Q of the Public Finance Amendment Act.  According to this argument, ministerial action would be inconsistent with the Treaty if the Crown did not first implement protective mechanisms to provide for redress and protect Māori proprietary rights to water and geothermal resources before making any of the three decisions.
In the alternative, the Māori Council argued that:
  • there was inadequate consultation in relation to these decisions, which was inconsistent with the principles of the Treaty;
  • the Crown made an error of law by taking into account the idea that “no-one owns the water” when deciding whether its actions were consistent with Treaty principles;
  • the Crown’s failure to wait for the completion of both stages of the Waitangi Tribunal inquiry was unreasonable;
  • it was an error of fact or law to conclude that a sale of 49 per cent of the shares of MRP would not be inconsistent with Treaty principles;
  • the intention to proceed with the sale of shares was a breach of a legitimate expectation held by Māori that the Crown would act with utmost good faith and actively protect Māori interests; and that
  • the Crown had breached the requirements of natural justice by proceeding with the sale of shares before Māori claims to the water and geothermal resources could be properly heard.
  • The Waikato River and Dams Claims Trust also argued that the Crown’s decision to proceed with the sale of shares in MRP is a breach of s64(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

 However, Justice Young determined that the Crown’s argument was correct.  He found that the decision to bring into the State-Owned Enterprises Amendment Act into force, the ‘commencement decision’, was not subject to the Treaty provisions in either the SOE Act or the Public Finance Amendment Act.  The Crown argued that Parliament has enacted the State-Owned Enterprises Amendment Act, delegating the decision to bring it into force to the Executive but there is no discretion for the Executive to consider the policy decisions that underlie making MRP a MOM company.  Those policy matters have already been determined by Parliament, including the nature of the protection of Treaty principles that are required.  Justice Young notes that “Parliament’s intention in passing the SOE Amendment Act and the Public Finance Amendment Act was to ensure that those companies that are subject to the new MOM regime are not subject to the s 9 SOE Act Treaty compliance requirement but to the s 45Q Treaty compliance requirement”.  As an interesting side-note, Justice Young also points out that
“The Public Finance Amendment Act 2012 provides that MOM companies will be subject to a Treaty inconsistency rule (at s 45Q) but one which has narrower application than s 9 of the SOE Act.”
This is confirmation that the protection provided by s 9 of the SOE Act were not completely transferred to the new MOM companies, despite Government Ministers’ claims that the legislation would address Māori concerns by including a provision that reflected “the concepts of the existing section 9 of the SOEs Act”.
As regards to the decisions to amend the constitution of MRP (a precondition to the sale of the shares) and to offer up to 49 per cent of the shares for sale, Justice Young found that these decisions were not reviewable because they were the exercise of common law powers and not statutory powers.  This was a direct application of the principle from the 1996 Court of Appeal decision relating to the sale of shares in Radio New Zealand.
Justice Young also rejected the Māori Council’s argument that the sale of shares in MRP would materially affect the Crown’s ability to recognize Treaty rights and provide redress.  On this point, Justice Young comes to a different conclusion to the Waitangi Tribunal, which had determined that in relation to the shares plus concept, the Crown’s ability to recognize Māori rights would be compromised.  Justice Young thought that the shares plus concept would be unworkable and did not accept the Māori Council’s submission that if the Crown was to reject the shares plus option, it had an obligation as a reasonable Treaty partner to come up with an alternative scheme.
Predictably, the Government has welcomed the decision, while it is being reported that the Māori Council is preparing an appeal.

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’.