November 2018 Māori Law Review

Overlapping claims and Crown engagement – will it lead to sustainable reconciliation? – Briar Peat and Dr Carwyn Jones

Hui-a-Tau Conference 2018 - Te Hunga Roia Māori o Aotearoa

Briar Peat, barrister and solicitor and Dr Carwyn Jones, senior lecturer, Faculty of Law at Victoria University of Wellington

October 2018

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its 30th annual conference at Rotorua in October 2018. The theme of the conference was “Ka kuhu au ki te ture, hei matua mo te pani – I seek refuge in the law, for it is a parent of the oppressed” – Te Kooti Arikirangi Te Turuki. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper is by Briar Peat, solicitor at Chapman Tripp and Carwyn Jones, senior lecturer at Victoria University of Wellington.

Overlapping claims and Crown engagement - will it lead to sustainable reconciliation?

Rukutia, Rukutia
Rukutia ngā pou tāhuhu o te whare nei;
Rukutia ngā poupou o te whare nei;
Rukutia ngā tukutuku o te whare nei;

Rukutia, rukutia,
Kia u, kia mau, kia tū

Meinga ko te aroha ki te whenua te tūāpapa o te whare, ko ōna pakitara ko te aroha ki te tangata, ko te tāhuhu, ko te aroha ki ngā tūpuna.

Rukutia te Mana Atua

Rukutia te Mana Whenua

Rukutia te Mana Moana

Rukutia te Mana Tangata

E ngā mana kei roto i a tātou i te rā nei, tēnā koutou, tēnā tātou.

Nau mai ki tēnei wānanga e aro ana ki te kaupapa here a te Karauna e pā ana ki ngā kerēme īnakinaki me te whakapāpā a te Karauna ki te iwi Māori. Ko te noho tahitanga mō ake tonu atu te hua?

The Treaty of Waitangi settlement process for historical grievances and Crown engagement is fundamental to sustainable reconciliation with te iwi Māori.

This paper analyses the Crown’s policy on overlapping claims as part of the settlement process and the manner in which the Crown engages with te iwi Māori more generally.

It argues that the Crown’s current approach:

  1. to overlapping claims is myopic and (at times) underhand; and
  2. to engagement more generally, demonstrates a poor understanding of tikanga, the relationships between iwi and hapū, and its own role as a Treaty partner.

This paper also suggests alternative approaches which could (and should) be implemented by the Crown (and particularly by the Office for Māori Crown Relations: Te Arawhiti going forward) to address these concerns.

In our view, unless different approaches are implemented, it is difficult to see how reconciliation with te iwi Māori will be sustainable.

Discussion

The overlapping claims policy

An overlapping claim exists where two or more claimant groups make claims over the same area of land that is the subject of historical Treaty claims.[1]

The Crown’s approach to dealing with overlapping claims is described in policy established and published by the Office of Treaty Settlements (“OTS”).

The Crown’s approach does not seek to resolve overlapping claims before settling historical grievances with different claimant groups. The relevant part of the policy states:[2]

The Crown can only settle the claims of the group with which it is negotiating, not other groups with overlapping interests. These groups are able to negotiate their own settlements with the Crown. Nor is it intended that the Crown will resolve the question of which claimant group has the predominant interest in a general area. That is a matter that can only be resolved by those groups themselves.

The effect of the overlapping claims policy is three-fold:

  1. The Crown only settles claims to land with the group which it is negotiating with, virtually ignoring the interests and rights its other Treaty partners may have in accordance with tikanga.
  2. The Crown disengages from dealing with overlapping claims, explicitly taking on the role of a passive spectator (unless the groups can’t make a decision themselves, in which case the Crown makes the decision for them).
  3. The status of iwi and hapū who claim rights to land in accordance with tikanga is not required to be authoritatively resolved before Treaty settlements are entered into.

Consequently, where land subject to overlapping claims is transferred by way of legislation:

  1. the question of which claimant group has a predominant interest and rights in accordance with tikanga is (in most cases) unresolved; and
  2. iwi and hapū are deprived of a forum in which they can seek an authoritative determination.

To grant such determination would constitute interference by the Court in parliamentary proceedings.

Ngāti Whātua Ōrākei v Attorney-General

Only very recently, in Ngāti Whātua Ōrākei v Attorney-General has the Supreme Court been able to indicate when the Crown’s decisions, regarding the transfer of land subject to overlapping claims as part of proposed Treaty of Waitangi settlements, can be judicially reviewed.[3]

The result of the decision is that the Crown may have to take more care to consider the relative rights of iwi and hapū when making decisions affecting Māori. For the OTS, this will require a reconsideration of its approach to Treaty settlements.[4]

In the case, Ngāti Whātua Ōrākei appealed a decision of the Court of Appeal affirming orders of the High Court striking out its application for declaratory relief as to rights and interests in central Auckland.[5]

The declarations were sought by Ngāti Whātua Ōrākei after the Minister of Treaty of Waitangi Negotiations advised that he intended to transfer some Crown-owned properties in central Auckland to Ngāti Paoa and the Marutūāhu iwi, in part-settlement of their historical grievances.[6]

Ngāti Whātua Ōrākei asserted that the transfer by the Crown of these properties, in respect of which it claims mana whenua, is:

  1. contrary to tikanga recognised in New Zealand law;[7] and
  2. a breach of the Treaty settlement already entered into between Ngāti Whātua Ōrākei and the Crown.[8]

In addition, Ngāti Whātua Ōrākei claimed the Crown’s overlapping claims policy is “wrong in law”.[9]

While the transfer of the properties to Ngāti Paoa were to originally be implemented by administrative action (which could be subject to a challenge by Ngāti Whātua Ōrākei), after Ngāti Whātua Ōrākei filed its initial claim in the High Court, the Minister announced that all the transfers would be made by way of legislation.[10]

The respondents then applied to strike out Ngāti Whātua Ōrākei’s claims on the basis that, since the properties are to be vested by legislation, Ngāti Whātua Ōrākei’s interests are not currently affected and so a claim to judicial review cannot be founded before the enactment of legislation removes them.[11]  The respondents further contended that judicial review, in the circumstances, would constitute interference by the Court with proceedings in Parliament.[12]

The respondents were successful in the High Court and the Court of Appeal.

In the Supreme Court, the majority allowed the appeal in part, finding that most of Ngāti Whātua Ōrākei’s claims included public law decisions as to the nature and scope of its rights (as opposed to a challenge to the legislative proposal). Such decisions can be the subject of challenge without interference with parliamentary proceedings.[13]

The majority also cautioned that it would be “overbroad” to suggest that the fact a decision which might be the subject of legislation will always suffice to take advice leading up to that decision out of the reach of supervision by the courts.[14] To do so would be to ignore the function of the courts to make declarations as to rights.[15]

Only two declarations sought by Ngāti Whātua Ōrākei were struck out, due to those declarations being characterised as a challenge to the decision to legislate to transfer the properties.[16]  These declarations would be problematic in terms of the principle of parliamentary non-interference.[17]

Chief Justice Elias, in the minority, would have allowed the appeal in its entirety.[18]

The Chief Justice explained that the Crown's stance set a precedent for the transfer of further land in central Auckland to other iwi in the future in settlement of historical Treaty claims, without reference to Ngāti Whātua Ōrākei and without its approval.[19]  Such a stance was concerning for Ngāti Whātua Ōrākei and would, in the hapū’s view, breach tikanga and erode their mana whenua.[20]

Further, if the proceeding could not be maintained, Ngāti Whātua Ōrākei would be deprived of a forum in which to seek to have its rights authoritatively established.[21]

The Chief Justice went on to note that the suggestion it is inappropriate to determine existing rights or to declare what the existing law is where the executive has indicated it intends to ask Parliament to change the law would encroach upon the legislative function would be an "unwarranted extension" of proper principle.[22]

So long as the Court does not seek to preclude parliamentary consideration, Elias CJ could not see that any determination of present rights constitutes an interference with proceedings in Parliament.[23]

Elias CJ also stated that, until Parliament changes the law, the courts must be open to citizens who seeks to have their existing legal interests and rights determined:

I do not accept that the prospect of legislative implementation is a talisman effective against court determination of rights where the courts do not seek to prevent parliamentary consideration.[24]

In relation to the Crown’s overlapping claims policy, Elias CJ noted:

Nor did we hear any justification of the reasonableness of [the Crown’s] published general policy on overlapping claims. Such policy may well constitute practice amenable to judicial review as indeed may be the case with the wider system of settlements conducted by the Office of Treaty Settlements.[25]

Elias CJ ultimately concluded:

There remains a continuing Treaty relationship which means Ngāti Whātua Ōrākei has a continuing interest in how the Crown conducts itself. The approach taken by the Crown sets a pattern I would not at this stage of the proceeding prevent Ngāti Whātua Ōrākei from challenging.[26]

Wider application

It should be noted that the Crown’s overlapping claims policy has a wider application than central Auckland. Since the early 2000s, the Waitangi Tribunal has received urgent applications from iwi and hapū who say that a settlement to which the Crown is about to agree unacceptably infringes upon their legitimate interests.[27]  Relief has also been sought (but not granted) in the courts.

More recently, in the Pare Hauraki Collective Redress Deed, the Crown recognised the 12 iwi of the Hauraki region have interests in Tauranga Moana, particularly in Te Puna – Katikati.[28]

Prior to the Deed being signed, Ngāi Te Rangi strongly opposed the recognition of Pare Hauraki’s interests in Tauranga Moana, on the grounds that Ngāi Te Rangi has mana whenua over land in accordance with tikanga which would be adversely affected by the Crown granting certain rights of first refusal to Pare Hauraki under the collective settlement.

The issue is yet to be resolved. The Crown and Pare Hauraki proceeded with executing the Deed, but amended the document to:

  1. remove Matakana Island from Hauraki’s rights and interests; and
  2. acknowledge that the Hauraki Collective and the Tauranga Moana Collective would discuss, through a tikanga-based process, how Tauranga Moana is to be protected and enhanced.[29]

The Crown has not yet indicated whether it will be involved in that process.

Ngāi Te Rangi became an intervener in the appeal to the Supreme Court in support of Ngāti Whātua Ōrākei.[30]  Ngāti Kuri of Te Tai Tokerau followed suit, claiming its interests in relation to land would be adversely affected by comparable Crown proposals for settlements of historical claims by other iwi under the Crown’s  overlapping claims policy.[31]

Te Whakakitenga o Waikato Incorporated, the representative tribal authority of Waikato-Tainui (with overlapping claims in the Auckland isthmus) also supported the position taken by Ngāti Whātua Ōrākei. In an application for joinder in the High Court proceedings, the incorporation made the point that the Supreme Court determination “has a significant wider importance in terms of both the Treaty relationship between the Crown and iwi and hapū and the constitutional relationship between the courts, the executive and the legislature in Aotearoa”.[32]

Ngāti Paoa also withdrew from the case and supported Ngāti Whātua Ōrākei in its appeal after engaging in a robust tikanga process.[33] That process acknowledged each group’s interests in a mana-enhancing way.

The response of iwi, hapū and the Supreme Court to Ngāti Whātua Orākei’s case accentuates the myopic and (at times) dubious approach taken by the Crown to overlapping claims. The sustainability of Treaty settlements reached in accordance with the policy is questionable.

Crown engagement generally

Poor Crown engagement is not limited to the Crown’s overlapping claims policy.

In September 2015, Prime Minister John Key announced the creation of an ocean sanctuary in New Zealand’s exclusive economic zone around the Kermadec Islands to preserve it in its natural state. The Kermadec Ocean Sanctuary Bill was introduced in early 2016.

If implemented in legislation, the proposal will erode the fishing rights granted to Māori under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

Iwi Māori were not fully consulted before the announcement. When declarations were sought by Te Ohu Kaimoana in the High Court as to the existing rights of Māori to the Kermadecs, the Attorney-General sought, and was granted a temporary stay of the proceeding.[34]

The Crown’s approach to the Kermadecs demonstrates a poor understanding of its role as a Treaty partner. To not consult Māori and seek consent before announcing and introducing the Bill was a breach of the Crown’s duty to act in good faith and in accordance with tikanga.

Another example which demonstrates the Crown’s poor understanding of tikanga is the policy of dealing with large natural groups of iwi and hapū, rather than negotiating settlement along hapū lines in Treaty settlements.

The Crown believes there are major benefits in conducting comprehensive negotiations with larger natural groupings. These benefits included creating efficient settlements which allow the Crown to “deal” with overlapping claims.[35]  A key justification for the policy was (and still is) to ensure the Treaty settlement process is expedient.

The large natural grouping policy and focus on expedience demonstrates a poor understanding of relationships between iwi and hapū and the tikanga which underlies those relationships. Māori social organisation has traditionally been determined and recognised through hapū lines, not iwi or confederations of hapū.

One particularly significant effect of the Crown’s approaches is that Treaty settlements become commercial “deals” between the Crown and Māori as opposed to being a process to settle legitimate historical grievances and establishing or maintaining a Treaty partnership.

An alternative approach
Overlapping claims

In order for reconciliation to be sustainable, when it comes to overlapping claims, the Crown cannot remain passive. It must recognise its obligation as a Treaty partner to better accommodate the resolution of cross-claims and actively engage in a manner that:

  1. includes groups not negotiating directly with the Crown;
  2. is fair and impartial; and
  3. is underpinned by the specific tikanga of the iwi and hapū involved, prior to making a settlement offer.

While it would be impossible to outline a specific process based on tikanga which must be followed in relation to each overlapping claim (to do so would be ignorant of tikanga itself – kei ia hapū tōna ake tikanga), we think the following framework would be acceptable to most (if not all) iwi and hapū (so long as each group's own tikanga is followed under the framework):

  1. where an overlapping claim arises, the group negotiating directly with the Crown must call a hui with the other groups affected to wānanga the overlapping claim and determine who has the predominant interest;
  2. the Crown must be invited to and attend the hui, but must act as a facilitator and remain fair and impartial;
  3. the hui must take place on the marae;
  4. the hui must continue, with each group hosting a hui until the overlapping claim is resolved and a pathway forward is agreed.

In acting in a manner that is fair and impartial, the Crown must be careful to act as a participant, not an arbitrator in the hui. To do so would undermine the right of iwi and hapū to self determination and (most likely) undermine the tikanga of the groups involved.

As an active participant, the Crown might suggest ways and provide means by which resolutions to overlapping claim disputes can be achieved, but would not control the process.

An approach where the Crown actively engages but which is underpinned by tikanga is the most likely to ensure a durable settlement.

Engagement generally

In engagement more generally, the Crown should:

  1. develop policies which show a true understanding of tikanga and are underpinned by Māori cultural preferences; and
  2. must act in accordance with those policies itself.

Key principles such as whanaungatanga, mana, tapu and noa, utu, and manaakitanga should guide Crown engagement with Māori.

The Crown should also recognise that if it is to discharge the Crown’s fiduciary and Treaty duties to Māori, then it must discharge them equitably to all Māori.

Office for Māori Crown Relations: Te Arawhiti

Cabinet has recently approved the final scope of the Māori Crown Relations portfolio and agreed to establish an agency to oversee the Government’s work with Māori in the post-settlement era.

The basic framework that has been outlined for the Office of Māori Crown Relations - Te Arawhiti appears to signal a definite shift in the way government intends to approach and to develop the Māori–Crown relationship.

The negotiation and settlement of historical breaches of the Treaty of Waitangi/Te Tiriti o Waitangi now seem to be more clearly viewed as part of an ongoing Treaty partnership. The Office of Treaty Settlements, the Settlement Commitments Unit and the Marine and Coastal Area (Takutai Moana) Team will be consolidated with the current Crown–Māori Relations Unit.

It has always been something of a façade to suggest Treaty settlements are simply about providing redress for historical breach. There are some key aspects of settlements that bear a direct link to historical breaches of Treaty principles. But Treaty settlements also provide for a range of mechanisms that establish partnerships with government agencies, setting out protocols for how those agencies will work with iwi, which simply implement the kind of good faith interaction that is inherent in the Treaty partnership, independent of any past breach.

Framing those matters in the context of historical claims and settlements not only results in uneven outcomes for iwi across the country but positions these matters as transactional commitments to be adhered to like the terms of a contract, as opposed to steps that may be taken to support the strategic development of a flourishing Treaty partnership. The new organisational structure appears to recognise this.

Among the matters on which Te Arawhiti is to provide strategic leadership is “the constitutional and institutional arrangements supporting partnerships between the Crown and Māori”. This is imperative. If the Government is genuinely committed to perfecting the Treaty partnership, this must include some consideration of constitutional reform.[36]  Again, the framework announced for Te Arawhiti points to an important shift in focus.

Establishment of the new agency is a positive step in the direction of improving engagement with te iwi Māori, however the Crown will need to implement the changes outlined above and directly engage with tikanga for Treaty settlements and the Māori Crown relationship to endure.

Conclusion

The Crown’s current approach to Treaty settlements, through its overlapping claims policy and engagement more generally will not lead to sustainable reconciliation with te iwi Māori.

The Crown must change its approach if it wants Treaty settlements and its relationship with te iwi Māori to endure. The new Office for Māori Crown Relations: Te Arawhiti is an opportunity to improve engagement. That opportunity should not be taken lightly.

Heoi anō rā e ngā rangatira, hapaitia te ara tika pūmau ai te rangatiratanga mō ngā uri whakatipu. Rukutia, rukutia, kia ū, kia mau, kia tū.

Notes

[1] Office of Treaty Settlements Healing the past, building a future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (June 2018) at 53.

[2] Above n 1 at 53.

[3] Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84.

[4] Chapman Tripp, Landmark case will reshape way Government deals with iwi interests, 20 September 2018.

[5] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [69].

[6] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [69].

[7] Takamore v Clarke [2013] 2 NZLR 733 at [94].

[8] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [69].

[9] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [69].

[10] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [70].

[11] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [70].

[12] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [70].

[13] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [48].

[14] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [46].

[15] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [46].

[16] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [66].

[17] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [65].

[18] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [128].

[19] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [71].

[20] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [71].

[21] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [71].

[22] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [104].

[23] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [115].

[24] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [124].

[25] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [124].

[26] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [127].

[27] Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007).

[28] Pare Hauraki Collective Redress Deed, at clause 22.1.

[29] Pare Hauraki Collective Redress Deed, above n 28. at clause 22.5.

[30] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [72].

[31] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [72].

[32] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [73].

[33] Ngāti Whātua Ōrākei Trust v Attorney-General, above n 3, at [63].

[34] Te Ohu Kaimoana Trustee Limited v Attorney-General [2016] NZHC 1798.

[35] Office of Treaty Settlements, above n 1, at 39.

[36] The report of Matike Mai Aotearoa (The Indepdendent Working Group on Constitutional Transformation) could provide some useful direction for the consideration of constitutional matters. See ‘He Whakaaro Here Whakaumu mō Aotearoa’ (2016) http://www.converge.org.nz/pma/MatikeMaiAotearoaReport.pdf