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Public Law - Treaty of Waitangi

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Hoani Te Heu Heu
Orthodox view: Treaty itself cannot be enforced in court. Only has legal weight where it has been incorporated in statutory provisions by Parliament.
Facts: P had passed a statute imposing charge on Maori land which owners argued was a breach of Treaty and continuing to own land. PC even if Crown had breached Treaty, nothing the Courts can do. Guarantee was included in a treaty, and under orthodoxy, treaties are not part of municipal law until P makes them so. Treaty only has legal status insofar as the Crown agrees to give it.
Berkett v Tauranga DC
Trying to claim Crimes Act did not apply to them. But once Parliament adopts a statute, the courts must apply it. Crown is sovereign as a matter of fact - courts do not ask why this is. Authority of courts in NZ exists on the same authority as the Crown.
Constitution Review Panel
Made report with recommendations on our constitution. Developed 5 principles:
1. Treaty can be made legally binding if Parliament puts into statute that it is
2. Waitangi Tribunal was established by Parliament and is empowered to do certain things.
3. Crown has recognised past Treaty breaches and attempted to compensate for these with settlement process - passes legislation to recognise the wrong and say what relationship will be like in the future.
4. NZ has at international level affirmed obligations to Maori and Treaty status. Treaty itself has no intrinsic status but is part of our law in certain ways, relevant when P says so
5. Unclear what the role of the Treaty in our constitution should be. Panel made some wishy washy recommendations and said should have ongoing conversation about it
AG v Ngati Apa
CA said due to common law's recognition of native title to the foreshore and seabed, it was possible for Maori to claim connection and thus title to land. Certain Maori groups near it who maintained use and control might be able to claim legal title. Not a Treaty claim, but common law rights and ownership of native people were recognised as being property rights which continued to exist until taken away by legislation. Ngati Apa claimed under this. Parliament, in response, passed the Foreshore and Seabed Act 2004 - Crown was not owner of all of it that was not already in someone else's title. Extinguished native title claims and property rights. UN Rights Commission said this looked racist, sent special rapporteur to NZ who made a range of recommendations - indicates scope of changes needed if NZ is to meet international obligations and give proper respect to Maori and their rights.
Moana Jackson
Advocates complete restructuring of model of the state and challenges structure of public power and authority in NZ. Sees Crown only giving to Maori what it sees fit. Need more honest and honourable basis. Looking at treaty is a good place to step back from assuming that our current arrangements are in fact justified.
Redress for breaches of Treaty
Litigation through the courts (but depends on Parliament incorporating into law)
Waitangi Tribunal - body to resolve complaints
Direct negotiation with Crown
Laying complaint with international law body
Political avenues of protest - try to get Parliament to resolve the matter in your favour
Treaty of Waitangi Act 1975
Governs Waitangi Tribunal. Recognises Treaty and principles for purpose of setting up Tribunal with powers given to it under the Act. No legal status outside the Act.
Jurisdiction of Waitangi Tribunal
First set up to look at current breaches of the Treaty, but in 1985 jurisdiction extended to cover all and any grievances since 1840. Historical cap put in s 6AA - after 2008, cannot submit historical claims.
What is the Tribunal?
Not a court. Venue for investigating matters of historical and contemporary fact. Makes recommendations rather than binding declarations of law. Claims can only be brought against Crown. Greater flexibility in terms of gathering information - no rules of evidence. Slow process, still looking at inquires lodged before 2008. Can order urgent inquiry if situation having extreme and immediate harm on Maori or if thinks it will be undone by government actions. Can order negotiation of settlement between parties. If mediation does not work, Tribunal starts its inquiry. Researches, makes report. Settlement can occur at any time. Claimants can use recommendations to support argument to Crown.
Section 5 TOW Act
Functions of Tribunal.
Can inquire into and make recommendations on matters in s 6, report on any legislation referred to in s 8. Shall have regard to both version of Treaty. Has exclusive authority for purposes of Act to decide meaning and effect and differences between the two texts. Interpretive role but applies only to its own functions - not determining as a matter of law, but are influential on the courts.
Section 6 TOW Act
Jurisdiction of Tribunal.
Where a Maori individual or a group of Maori claims they are likely to be prejudicially affected (harmed) by something the Crown has done - legislation, regulation, policy, acts or omissions - that was or is inconsistent with the principles of the Treaty, Tribunal must enquire into claim unless ss 6AA or 7 apply. If it finds the claim well founded, can recommend action to fix it. Limits on what Tribunal can look at. Jurisdiction of Tribunal to inquire into certain areas has been paired back by Treaty settlement process - prevent Tribunal from reopening the matter.
Section 6AA TOW Act
Limitation of Tribunal's jurisdiction in relation to historical claims.
Section 7 TOW Act
Tribunal may refuse to inquire into claim - if frivolous, trivial.
Section 8 TOW Act
Jurisdiction of Tribunal to consider proposed legislation - only if Parliament asks them to.
Orakei Report
Nagti Whatua objected to developments on land, brought claim to Tribunal which held land had been taken from them in breach of Treaty. Recommended return to Maori. Neither version of Treaty is superior, but put more weight on Maori version under contra proferentum. Treaty was guaranteeing to Maori the Crown would take steps to protect their interests. Recognised Maori rights to ownership of land. Must look not only to text, but to the principles - broad view. Treaty not intended as a finite contract, but as a broad foundation for developing social contrite. Principles impose duties. Partnership - each partner act reasonably and in utmost good faith towards each other.
The Lands Case
SOE Act set up privatisation model. Shareholding Minister could shift assets into an SOE, which could then be sold to private owners. Maori had issue with this - land that had been wrongfully acquired in breach of Treaty would be unavailable for settlement. After Tribunal issued interim report, Govt. responded by adding 2 new clauses. Put in place protection for land that already had claims over it. Maori sought pre-emptive claim if Ministers used power under Act it would be unlawful and a breach of s 9 SOE Act (treaty principles). If transferred land that might later be subject to Treaty claim, would breach TOW, unlawful under s 9. Cooke P held this is an overarching requirement on those using the Act. Gave Crown 3 weeks to determine machinery to allow land to be transferred to SOEs in a way that will protect any future Maori claims over it for the Maori Council to then analyse. Court can only do this due to s 9. If Minister does something to breach Treaty principles, courts can declare that acts are unlawful.
S 9 SOE Act
Nothing in this Act shall permit the Crown to act in a way that is inconsistent with the principles of the Treaty.
Principles of Treaty as identified by Cooke P in the Lands Case
Partnership - acting reasonably and in good faith
Active protection of Maori
Redress for past breaches
Make informed decisions to discharge duty - but does not have to consult
But Crown has right to govern - does not have to do what Maori want
Effect of the lands case
Legally enforceable obligation only exists by virtue of s 9. Crown may be under moral obligation not to breach Treaty principles, but legal obligation only exists because Crown has put it into the law. Crown said it would pass a series of statutory amendments to provide safeguards for the transfer of land to SOEs. Maori Council accepted this solution.
Claw back provisions
Changes made to legislation that meant although all land could be transferred to SOE irrespective of Maori claims over it, land would remain subject to SOE Act and where Tribunal recommended return of land to Maori, Crown must resume ownership of land and give it to Maori. TOW Act also amended to give Tribunal binding recommendation powers in this area.
Coal case
Crown wanted to transfer land and right to mine coal from land to SOE. Tainui concerned because thought Coal Corp with right to mind might sell land to another private owner who would also mine the land. If land given to Coal Corp and sold and Tribunal found was wrongfully taken and recommended return, claw back provisions would apply.
CA held they would also apply to all interests in the land including mining rights. Crown would have to buy title and pay out miner for rights if return ordered by Tribunal.
Radio Frequencies Case
Not a case under SOE. Involved privatisation of radio stations. Government was selling used frequencies to the higher bidder - NZ Maori Council went to Court to stop process on basis that no provision had been made to ensure Te Reo was put on the airwaves. Crown failing in obligation to protect language. CA upheld interim injunction stopping tender process until Tribunal reported. Its report was thus a mandatory consideration for the government. Minister promised to look at the impact on Treaty, so had to wait for report despite no reference to Treaty principles in the relevant statute. Tribunal said if sold to highest price without considering Maori, would be a breach of Treaty. Minister considered this, but decided to go ahead anyway. CA held he could do this - followed correct process and considered the correct things under Treaty obligation, but Crown is sovereign and could make policy that is best for NZ as a whole having considered impact on language. All court will do is ensure it has been considered.
Broadcasting Assets case
Transfer of assets from SOE. TVNZ set up as SOE but govt retained all of the broadcasting. Under SOE model, TVNZ told to act commercially to make profit and compete with the other channels - put in place without considering the Treaty. Govt. then wanted to transfer assets to SOE. No safeguards to help advancement of Te Reo. Crown needs to promote it through broadcasting otherwise will breach article 2 and s 9 SOE Act. Govt put forward proposals such as more funding for Maori TV and discussing setting up Maori channel in future but no immediate guarantee. Court can only look at final stage and see if transfer breaches Treaty. CA held assets can be transferred with govt's promises to mainstream in future as they are enough to meet Treaty requirements. No generally enforceable obligation on govt not to make decisions inconsistent with Treaty.
Privy Council in Broadcasting Assets Case
PC said nature of obligation depends on circumstances, and cannot hold govt. to deploy resources it does not have. Minister an still instruct TVNZ on other ways to promote Te Reo and transfer does not take away Crown's ability to use assets, unlike with land. Obligations met, and Crown has final say on policy. Undertaking for the future was enough to allow transfer. Assurance made by Solicitor-General to do certain things creates legitimate expectation that Crown will act in accordance with promise - if it does not, JR.
Water case
Partial privatisation of water - govt keep 51% of assets. Give to Mighty River Power to run under MOM model. Govt looking at ways to distribute water use that will allow people to own and transfer it to others. Maori is part of discussion - have customary interests that look a lot like ownership. Rights must be protected under article 2 and exist under common law. Crown giving consent to MRP to make electricity without considering Maori interests could be a failure to actively protect, giving rise to redress. Will Crown be able to adequately redress Maori with 49% privately owned. Tribunal found it would breach as indeed redress. HC held Crown's decision was not reviewable. SC held selling off did not breach Treaty principles, but also said that the decision was reviewable for consistency with principles. Maori have impact in how water is used currently, and Crown undertaken to protect interests in future. This was not a material impairment on ability to perform treaty obligations. Retain substantial capacity to provide redress unlike in Lands case, and land that dams are on is subject to claw back provisions. Can revisit issue when water permits end (limited to 35 years). Selling off 49% was not inconsistent, and is not a material impairment to redress due to Crown's assurances and willingness in future to protect Maori interests.
Huakina Development Trust v Waikato Valley Authority
Rights of people to use water for irrigation, fishing etc. Statute in question said allocation decisions must be made in the interests of the public generally. HC held though there was no direct statutory incorporation of the principles, due to vagueness of phrase, it could include Maori values. The treaty is essential to NZ society, so decision maker should take Maori values in water into account. If evidence of values exists in relation to particular water, it is part of the interests of the public generally. Room to incorporate Maori values in same ways as international law obligations.
Moral obligation
Treaty is a moral bind on government to act as good Treaty partner. But Crown is sovereign and may act in a way that Maori oppose.
When does the Treaty become legally binding?
1. Direct statutory incorporation (s 9 SOE Act)
2. Through the history of a decision-maker's dealings (Radio Frequencies Case)
3. Indirect statutory incorporation (Huakino)
Need to apply the principles and view them in the context. Nature of the decision, importance of rights and impact on them, importance to NZ as a whole, urgency, who decision-maker is, factors for the decision-maker to take into account etc.
Treaty Settlement Process
Many claims being brought to Tribunal by mid-1980s. Crown under no obligation to pay attention to what Tribunal said, but where breaches were found, this was a stain on the honour of the Crown. Showed government had failed, and triggered principle of redress. In practice, Crown could not ignore recommendations as there was political pressure to resolve. Also was a concern that the courts might enforce redress, overruling Hoani, if the Crown did not act. Political decision to have the process accepted by successive governments.
Settlement of Treaty claims
Process applying to historical claims is formally separate to Tribunal - although Tribunal's reports are important in negotiations. Iwi or hapu settle with the Crown. Negotiations carried out between claimant group and Office of Treaty Settlements. Claimant group must provide evidence that resources taken in breach, have to prove continuing harm. Once breach and harm proved (as long as mandate established) negotiations carried out between claimants and OTS to determine appropriate response. Tribunal recommendations can be helpful as evidence.
Mandating process for Treaty settlements
Group must prove to Crown it has authority to negotiate settlement on behalf of those it represents, and it is structured in an accountable way and has suitable management processes in place to deal with settlement should it happen. If these are not met, Crown will not negotiate.
Suitable redress
When settlement package reached following negotiations, goes back to people that claimant group represent to vote on it.
1. Part of settlement is Crown recognising that it wronged Maori and is sorry for this
2. Will also be cultural redress (claimants gets rights in resource as recognition of tino rangatiratanga)
3. And some sort of financial or economic redress (never amounts to what was taken, but gives group some commercial basis to go forward).
Act of P then passed to give settlement for of law. It is then full and final and cannot be raised again. Political process. Govt's own initiative - not a legal requirement but recognised it needs to do this as a good treaty partner.
Te Arawa Settlement Case
Forest land that was taken from Maori. Crown intended to sell to private owners. NZ Maori Council successfully argued Court could look at proposal under SOE Act and see if it was lawful. Govt then agreed to negotiate settlement with Maori, incorporated into 1989 deed. Final settlement with Te Arawa was written up in deed and then Crown gave them the option to buy more forestland off Crown, with money from trees going to Crown. Deed would then become Act. 1989 deed and Act said Tribunal had to order return of land and money from the trees on the land before it happened - next deed with Te Arawa was not following this. Other Maori thought unfair. Deed has no legal status and when Act made, actions will be lawful. Judiciary cannot stop legislation going to the House. Issues relating to settlement deed non-justiciable. Deeply political area not for the courts. However, Crown actions in regards to settlement can be challenged in Tribunal. If conflict as to who has claim, or issues of mandate, could be a breach of Treaty. Tribunal can then made recommendations.
Te Urewera Park Settlement
Tuhoe iwi never signed Treaty, bad relationship with Crown. Resisted any form of settlement negotiations with Crown, but eventually agreed to settle. Issue over National Park that had been confiscated. As form of cultural redress, Tuhoe warned to be recognised as owners of the park. Would still retain characteristics but iwi would own. Govt did not go through with it, thought public would react badly. Fictional compromise: park became its own person and no one can own it. Pragmatic political solution.
Whanganui River Settlement
River will be treated as its own person. No one will own it because it cannot be owned. Fight over it is then taken away. Will oversee the entity as a person who's interests will be protected.