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.

World Conference on Indigenous Peoples

In September, I attended the UN World Conference on Indigenous Peoples in New York.

Technically, this was not a true World Conference, but rather a High Level Plenary Meeting of the General Assembly. Although this might sound like a small procedural point, it actually had significant implications for matters such as the way in which the conference programme was developed and who was able to participate. The overall effect was that the conference was more tightly controlled by the General Assembly (i.e. states) than it would have been if it was a true World Conference.

Nevertheless, Indigenous Peoples from around the world took the opportunity to engage states and the UN on important issues relating to the protection and promotion of Indigenous Peoples’ rights.

A key part of the conference was the adoption by the General Assembly of an outcome document that is designed to be a formal commitment by the General Assembly to develop mechanisms for the practical implementation of the rights of Indigenous Peoples. To my mind, some of the most important provisions in the outcome document are the directions that the General Assembly has given to the Secretary-General to develop a system-wide plan for achieving the objectives of the UN Declaration on the Rights of Indigenous Peoples. The Outcome Document also includes provisions aimed at other parts of the UN system, such as the Human Rights Council, as well as recognition of the important contribution that comes from Indigenous Peoples’ full participation in all aspects of public life.

Further details about the issues addressed are available in the report on the conference proceedings from the Aotearoa delegates who participated as part of the Pacific caucus at the World Conference (see Report UN WCIP 24sep14_final )