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 :

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.

Year 170: 365 days in the life of the Treaty relationship

With the recent announcement that the Māori flag will be flown at some official sites on Waitangi Day, it seems that attention is turning toward 6 February and the commemoration of the signing of the Treaty of Waitangi a little earlier than usual.

Each year, those commemorations remind us of the agreement between Māori rangatira and the British Crown which established the formal relationship on which our nation could be built. It seems appropriate to me that 6 February should also be an opportunity, not only to recall the foundation of that relationship, but also to take stock of how well that relationship has been nurtured during the 365 days since the nation last focused on Waitangi.

During the last year we have seen a number of high profile issues which have had significant Treaty dimensions – the question of whether or not there should be separate Māori representation on Auckland’s new supercity council, whether it ought to be Whanganui or Wanganui, finding a national Māori flag to fly on Waitangi Day, the review of the Foreshore and Seabed Act, the Māori Television bid for broadcasting rights to the Rugby World Cup, the measures in the amended Emmissions Trading Scheme which aim to address settled Treaty claims. And then of course there was that email from Hone Harawira. Some of these issues clearly have more significant implications for our law, government, and public life than others, but each tells us something about the health of the Treaty relationship in its 170th year. Between now and Waitangi Day 2010, I’ll post on each of these issues and examine them in light of the Treaty of Waitangi, its provisions, and the relationship it established.