Trans-Pacific Partnership and Māori Rights

The Foreign Affairs, Defence and Trade Select Committee is currently undertaking an examination of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). I made a submission to the Committee, focusing on the impact on Māori rights (see also the Māori and Te Tiriti paper that is part of the ‘Expert Paper Series’ on the TPP). The substance of my submission is reproduced below.

Submission

  1. I oppose New Zealand’s ratification and implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) because it erodes the rights of New Zealanders in return for, at best, negligible economic gain.
  2. I am particularly concerned about the effect of the CPTPP on Māori rights and my submission focuses on those issues.

Māori rights and the CPTPP

  1. The CPTPP addresses a number of areas of law and policy, including intellectual property rights and environmental regulation, which Māori maintain are currently inconsistent with the principles of the Treaty of Waitangi. By extending the interests of foreign parties, who do not have Treaty obligations, into these areas, the CPTPP places further obstacles to Treaty rights being properly recognized.
  2. To give one example, the Waitangi Tribunal reported in 2011 on the Wai 262 claims addressing law and policy across a range of government activity, including environmental management and intellectual property rights – matters covered by the CPTPP. That report found the current law and policy settings in these areas were inconsistent with Treaty principles and made specific recommendations for reform that would address those inconsistencies. Nearly seven years later, the government has not yet formally responded to the Tribunal’s recommendations. Getting movement in these areas can only become more difficult once the CPTPP is ratified.
  3. I would urge the Committee to ascertain whether any government agencies have undertaken any form of stock-take on the issues raised by the Wai 262 report and how these matters are likely to be affected by the CPTPP.

The Treaty of Waitangi exception

  1. The Treaty of Waitangi exception that is included in the CPTPP is insufficient to protect Māori rights.
  2. It protects actions which are “favourable to Māori” but it is not clear that the exception would permit the New Zealand government to put in place measures which were designed to give effect to Treaty of Waitangi rights but applied more generally. For example, would the New Zealand government be open to challenge from oil companies if it instituted a blanket ban on fracking based on Treaty rights?
  3. The exception relies on the New Zealand government to recognise something as a Treaty right in the first place. As we have seen with issues such as the foreshore and seabed and freshwater rights, the government is often slow to recognise Treaty rights. This also raises points to the issue that something which is not recognised as a Treaty right by one government but then recognised as such by a subsequent government may fall outside of the Treaty exception in the CPTPP because it may be seen as being “arbitrary”.

Consultation with Māori

  1. Consultation with Māori in relation to the CPTPP has been extremely limited and certainly not of the standard required by the UN Declaration on the Rights of Indigenous Peoples.
  2. Māori ought to have been consulted particularly on issues relating to how our rights would be affected by the CPTPP and how we would like to see our rights protected.
  3. Relying on discussions in relation to previous free trade agreements is not adequate as the content and scope of previous agreements is not identical to the CPTPP.

Waitangi Tribunal’s Report on the Trans-Pacific Partnership Agreement

  1. In 2016, the Waitangi Tribunal reported on the Treaty of Waitangi exception in the Trans-Pacific Partnership Agreement or TPPA (now reproduced in the CPTPP). Although the Tribunal found that the exception offered a reasonable degree of protection to Māori interests, the report also highlighted serious concerns in relation to Investor-State Dispute Settlement (ISDS), stating (at p 50):

“We are not in a position to reach firm conclusions on the extent to which ISDS under the 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.”

  1. The Tribunal further noted (at p 51):

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

  1. 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 (see p 57). There was agreement amongst the expert witnesses that such a protocol should include:
  1. a commitment to invoke the Treaty exception if there is an ISDS case concerning Māori;
  2. a policy to lead expert Māori evidence where the Treaty exception may be invoked;
  3. amicus curiae briefs for Māori to be encouraged;
  4. a policy commitment to regular dialogue and consultation over the course of an ISDS case if it raises issues of concern to Māori;
  5. in a case where the Treaty exception clause may be raised, Māori representation could be included as part of the New Zealand team;
  6. a commitment to select an arbitrator with knowledge of Treaty principles and tikanga (and investment arbitration); and
  7. 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).

17.    No such protocol has been announced and so Māori rights remain as much at risk under the CPTPP as they were under the TPPA. The New Zealand Government has done nothing to address the concerns raised by Māori or to even act on the findings and recommendations of the Waitangi Tribunal to fully protect Māori rights.

Recommendation

18. I recommend that the Committee find that the ratification and implementation of the CPTPP is not in the national interest because it erodes the rights of New Zealanders in return for, at best, negligible economic gain.

Whakatōhea Mandate Report

On 17 April, the Waitangi Tribunal released the pre-publication version of The Whakatohea Mandate Report. 

I wrote a brief comment on some aspects of the Tribunal’s findings that originally appeared on the Radio New Zealand website 0n 18 April 2018:

If the Crown is going to get its Treaty negotiations right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.

Yesterday, the Waitangi Tribunal released the Whakatōhea Mandate Inquiry Report. In this report, the Tribunal determined that the Crown had indeed breached Treaty principles in its settlement negotiations with Whakatōhea, in particular, finding that the Crown’s recognition of mandate “was not fair, reasonable, and made in good faith”.

This is not the first time that Crown policy and practice relating to the recognition of a mandate to negotiate the settlement of historical Treaty claims has been challenged.

Mandating is an important part of the Treaty settlement process. It is vital that those who say they have the authority to negotiate the settlement of the historical claims of their community do, in fact, hold that mandate from their people. The Crown acknowledges this and has established processes for determining whether or not to recognise the mandate of a group seeking to enter into negotiations. So, why is the Crown still doing things here which are not fair, reasonable, or undertaken in good faith?

This particular issue relating to mandate stems from a broader flaw in the Crown’s approach to Treaty settlements, that is, a failure to properly engage with Māori legal traditions in this process. In the Whakatōhea Mandate Inquiry Report, the Tribunal identified one of the problems with the Crown’s approach was that there was insufficient weight placed upon the objections of a number of smaller hapū. Despite the fact that there were well-known and long-standing differences of opinion about settlement negotiations within Whakatōhea, and that the hapū of Whakatōhea had explicitly stated that the process for settling their claims needed to be driven by hapū, the Crown chose to look at the support of individual members rather than the support (or otherwise) of the various hapū.

The Crown could hardly have been unaware of the problems with this approach. The Tribunal raised similar criticisms of Crown process in the Ngāpuhi Mandate Inquiry Report in 2015. The Tribunal has made recommendations to the Crown, across a number of reports, about how to address flaws in the mandating process. For example, it has recommended that the Crown take a more active role in monitoring the mandating strategy; that it must be impartial in its dealings with different Māori groups and preserve not damage relationships between them; and that it ought to ascertain the support, not only of individuals, but of hapū.

Although, in each of the various mandate reports, the Tribunal has focused on addressing the particular flaws in each case, there is an overarching issue: a failure to prioritise Māori legal traditions. If the Crown had given greater attention to the tikanga of, for example, Whakatōhea and Ngāpuhi, it might well have behaved differently in both these negotiations. The ongoing relationships between different communities within the settling groups would certainly have been given greater priority. Instead, often political or administrative expedience has driven Crown actions. In relation to Whakatōhea, the Tribunal took the view that “the Crown has focused too much on the goal of achieving a speedy settlement, including meeting arbitrary deadlines for key milestones, to the detriment of Whakatōhea.”

In the Ngāpuhi Mandate Inquiry Report, the Tribunal offered the following concluding observations:

“…it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused.”

Tikanga and Māori legal traditions must be central to the settlement process. If the Crown recognises this then it can avoid creating further grievances through issues such as the problematic mandate process identified in the Whakatōhea negotiations. That will provide the foundation for durable settlements that contribute to the goals of reconciliation and make good on the promise of the Treaty partnership.

UN committee encourages constitutional protections for Māori rights

On 29 March, the United Nations Committee on Economic, Social, and Cultural Rights adopted its concluding observations on the implementation of economic, social and cultural rights in New Zealand.

I wrote a short comment on the Committee’s report, originally published on The Spinoff on 12 April 2018:

Concerns were expressed last week by the United Nations Committee on Economic, Social and Cultural Rights – a panel of experts established to monitor the implementation of rights recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR) – that New Zealand still isn’t pulling its weight.

The ICESCR covers a range of fundamental human rights such as labour rights, rights to education, adequate living conditions, housing, and health. As a party to the ICESCR, New Zealand formally reports to the committee every five years. Alongside the government report, this process also provides the opportunity for the Human Rights Commission and NGOs to submit reports to the committee. Following consideration of the submitted reports, including oral presentations and questions from committee members, the committee releases its ‘concluding observations’.

The committee’s concluding observations on New Zealand’s recent report included positive comments about work undertaken by government to protect migrant workers from exploitation, secure health rights for Pasifika, and advance gender equality in public life. The committee also welcomed the government’s commitment to prioritising matters such as reducing child poverty, increasing the minimum wage, overhauling both mental health and education systems, and more effectively addressing the housing crisis in New Zealand.
However, the committee also identified a number of areas of concern. These included issues relating to equality between men and women (in employment and other contexts), matters relating to conditions of work, the minimum wage, unemployment and underemployment, concerns about the unaffordability of housing in New Zealand, mental health and addiction services that are insufficiently responsive, and the prevalence of domestic and gender-based violence. In many of these areas, the committee expressed particular concerns about the disparities that persist between Māori and Pasifika and other population groups.

An overarching concern expressed by the committee is that economic, social and cultural rights are not fully incorporated into New Zealand law and do not have effective enforcement mechanisms or remedies. The committee specifically pointed to the lack of enforceability of Māori rights under the Treaty of Waitangi and recommended that the New Zealand government ‘take immediate steps’ to work with Māori in developing the constitutional role of the Treaty of Waitangi, including addressing the proposals put forward in the 2016 Matike Mai Aotearoa report. The committee expressed concern that Waitangi Tribunal recommendations are not binding and are frequently ignored. The committee determined that the government should ensure that it acts on all recommendations from the tribunal, ‘including in its landmark report Ko Aotearoa Tēnei’.

The recommendations for constitutional protection and other mechanisms to ensure enforceability of rights are of particular concern to the committee because if rights are not enforceable, then they really just exist subject to political whim, and so they cannot really be said to be effectively protected at all. Which is why similar concerns about the lack of constitutional recognition of Māori rights have previously been expressed by other UN entities (see, for example, reports on the state of Indigenous rights in New Zealand written by successive special rapporteurs on the Rights of Indigenous Peoples here and here).
It is notable that the committee identified the recommendations made in the report of Matike Mai Aotearoa – the Independent Working Group on Constitutional Transformation – as an essential part of constitutional development and the effective protection of human rights here in Aotearoa. Matike Mai Aotearoa was formed under the auspices of the National Iwi Chairs Forum. Professor Margaret Mutu was appointed to chair the group and Moana Jackson was invited to be its convenor. Further members were nominated by iwi and other organisations or co-opted for particular expertise or experiences. The terms of reference given to the groups were:

“To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.”

The group held over 250 hui between 2012-2015 and gathered feedback on Māori constitutional aspirations. The working group produced a report in 2016, which identified six different constitutional models. These models are intended to indicate the range of possibilities that may be deployed to give effect to the values in tikanga and the Tiriti relationship. These models, described at a relatively high-level, aim to recognise the integrity and independence of both rangatiratanga and kāwanatanga and provide options for further discussion.

To date, the government has not really engaged with the Matike Mai report. It would be great to see the government participate in a constitutional discussion that begins from the basic premise of the Matike Mai report, that New Zealand’s constitutional arrangements ought to be underpinned by tikanga and Te Tiriti.

It is also significant that the committee made specific reference to the Waitangi Tribunal’s report, Ko Aotearoa Tēnei. Released in 2011, Ko Aotearoa Tēnei is the Waitangi Tribunal’s report on claims in the long running Wai262 inquiry that related to mātauranga Māori and New Zealand law and policy affecting Māori culture and identity. Although the Tribunal explicitly stated that the inquiry was not addressing constitutional issues, the broad ranging nature of the subject matter meant that the Tribunal was dealing with Māori participation in decision-making across the whole of government – from intellectual property to environmental management to rongoā Māori to international treaty-making. Across the range of policy areas that were considered, the key for the Tribunal was to ensure Māori are able to exercise genuine decision-making authority and that government agencies are required to deal with the Māori interests in a way that is consistent, transparent and accountable. These are important characteristics for the kind of protection and enforcement mechanisms with which the committee is concerned. If, for example, the Tribunal’s recommendations that aimed at ensuring that Māori have a more substantial and more direct role in New Zealand’s international treaty negotiations had been adopted, it is likely that the Trans Pacific Partnership agreement would have included more certain and effective protections for Māori rights.

The committee’s recommendations may well be timely. On Saturday, Kelvin Davis kicked off a series of consultation hui to inform the setting of the scope and priorities for the new Crown/Māori Relations portfolio. The observations made by the Committee on Economic, Social and Cultural Rights provides important guidance on developing that relationship in ways which better recognise and protect Māori rights. Let’s encourage the minister to take that guidance on board.

Crown/Māori Relations

The Minister for Crown/Māori Relations, Kelvin Davis, is in the middle of a series of consultation hui that is aimed at gathering feedback on the directions and priorities of the government in the new Crown/Māori Relations portfolio.

Here is a short piece I wrote on the possibilities of this portfolio just ahead of Waitangi Day this year, originally published in The DomPost and on stuff.co.nz :

At this time of year, as we move from the celebrations at Rātana pā to the commemorations of the Treaty signing at Waitangi, the Crown/Māori relationship is inevitably in the spotlight. But there are signs that this year may mark a shift in how the Government views the Treaty partnership – away from seeing it through a lens of historical grievance, claims and contestation.

“Currently, the Crown/Māori relationship is anchored to the negotiating table,” said Prime Minister Jacinda Ardern in her address to the Federation of Māori Authorities conference in November. “My vision is that we as a country realise the promise of the Treaty… I don’t want this Government to rest until Māori and non-Māori are true partners in Aotearoa. Now, that isn’t just about recognising historic rights or settling historic wrongs, it is about the quality of lives that people live.”

Governor-General Dame Patsy Reddy echoed these comments in the Speech from the Throne at the State Opening of Parliament: “It is time to start considering what the Treaty relationship might look like after historical grievances are settled. To consider how we, as a nation, can move forward in ways that honour the original Treaty promise.”
One person who will be giving this particular thought is Kelvin Davis, in the newly created role of Minister of Crown/Māori Relations. But what is this new portfolio all about? And will it make a tangible difference?

The basic concept of a Crown/Māori Relations portfolio does seem like an idea whose time has come. There has been considerable focus on the settlement of historical Treaty breaches over the past 25 years. Though many aspects of Crown settlement policy remain highly problematic, this process is necessary to provide remedy and renew the Treaty relationship.

Despite its flaws, it has provided the context in which some innovative co-governance mechanisms have been developed and many constructive relationships established between iwi and government agencies.

But inclusive and effective management of natural resources and mutually beneficial relationships between Māori and government shouldn’t be dependent on the existence of historical breaches of the Treaty. The partnership created by the Treaty was always intended to be much broader than that.

For example, many settlements provide for iwi to have greater input in the delivery of social services to their members. This is a future-focused expression of partnership. It is not redress for historical Treaty breaches, though the impetus might stem from the consequences of historical breaches. It is also relevant to addressing the socioeconomic circumstances of Māori in urban areas, perhaps living outside of their iwi’s traditional territory.

There is no reason to insist on viewing initiatives like this through the lens of iwi claims of Treaty breach or historical reparations. This is not only limiting, but self-defeating. If we take the Treaty partnership seriously, these things should be business as usual for Aotearoa in the 21st century.
This new portfolio clearly creates opportunities for more consistent, more sophisticated, and more effective participation of Māori in public life. According to Ardern, “Te Tiriti o Waitangi must be at the heart of the Crown/Māori relationship. This portfolio represents the opportunity to grow and strengthen this relationship as our country moves into the post-settlement era.”

We will have to wait to see whether the new Government’s actions match the rhetoric.
The proof of the pudding is, as ever, in the eating. But the establishment of the Crown/Māori Relations portfolio should be seen as a positive step. This is a chance to make real, beneficial changes for Māori and for the country as a whole.
The task of getting the policies and practices right in order to fulfil this potential may seem daunting to the new minister and his officials. But they should take heart from the fact we have, in the Treaty, a framework for a respectful and productive partnership as applicable to Crown/Māori relations in the 21st century as it was in 1840.

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.