Costs - 80% of actual costs granted - Hettig v ANZ Bank - Kaiawhina Trust and Lot 1 Deposited Plan158328 (2015)104 Taitokerau MB 130 (104 TTK 130)
Alienation - Māori Trustee – shares purchased under the conversion fund returned to current owners – Māori Trustee v Ihaia - Omapere Taraire E & Rangihamama X3A (Aggregated) (2014) 88 Taitokerau MB 9 (88 TTK 9)
Alienation - alienation of shares declined - preferred class of alienees - Kingi - Te Maika A5 (2015) 104 Taitokerau MB 103 (104 TTK 103)
Trusts - removal of trustee following conviction - McGregor v Hutchison - Mangamaire B13A Trust (2015) 40 Tākitimu 19 (40 TKT 19)
Māori Reservations – Court declined to set aside Lake Horowhenua as a Māori Reservation - Taueki V McMillan - Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144)
From District Inquiries to Kaupapa Inquiries: a new horizon for the Waitangi Tribunal - Andrew Row
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015]]>
Māori fisheries - criteria for coastline entitlement - Te Ohu Kaimoana Trustee Limited v Te Runanga Nui o Te Aupōuri (2015) 102 Taitokerau MB 1 (102 TTK 1)
Injunction - interim injunction granted - Davies v The Trustees of the Te Tii Waitangi B3 Ahu Whenua Trust - Lot 16 DP 61631 and Lot 18 DP 61631 (2015) 104 Taitokerau MB 139 (104 TTK 139)
Costs – special aid not a shield against a costs award - Trustees of the Horina Nepia & Te Hiwi Piahana Whānau Trust v Ngati Tukorehe Tribal Committee & Tahamata Incorporation (2014) 319 Aotea MB 238 (319 AOT 238)
Costs - unreasonable claim - reduced amount awarded - Huata-Kupa v Tataraakina C Trust - Tataraakina C Trust (2015) 40 Tākitimu MB 207
Costs - reasonable amount awarded for costs incurred - Ngamoki-Cameron - The Proprietors of Mangaroa (2015) 119 Waiariki MB 225 (119 WAR 225)
Charging orders - granted against land for unpaid rates - Kaka v Ruapehu District Council - Ohura South N2E1B (2015) 337 Aotea MB 143
Status of land - insufficient evidence to grant application to change - Wallace - Section 8B No 1 Block IV Waitara Survey District (2015) 337 Aotea MB 61 (337 AOT 61)
Trusts – no relief from trustees' liability to reimburse - Moeahu v Winitana - Waiwhetu Pa No 4 (2014) 319 Aotea MB 166 (319 AOT 166)
Trusts - relief from liability of trustees who acted reasonably and honestly - Deputy Registrar v Trustees of Okahukura 8M2C2C2B Trust (2015) 337 Aotea MB 101 (337 AOT 101)
Trusts - application to replace trustees declined - Milne - Te Kainga O Takenui Whānau Trust (2015) 104 Taitokerau MB 28 (104 TTK 28)
Easements and roadways - non-access easement granted - Top Energy Ltd - Whakataha Z1C (2015) 104 Taitokerau MB 108 (104 TTK 108)
From District Inquiries to Kaupapa Inquiries: a new horizon for the Waitangi Tribunal - Andrew Row
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015]]>
Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation - Haratua 2015
Are We There Yet? The Future of the Treaty of Waitangi: A Review - Max Harris
Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand - Gareth Morgan and Susan Guthrie
Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie - Max Harris
Mareva injunction issued over former trustees – Slade - Parengarenga 3G (2014) 87 Taitokerau MB 46
Chief Judge's powers:
Permanent injunction declined - Haimona v The Trustees of Te Karaka No 1A Ahu Whenua Trust - Te Karaka No 1A Ahu Whenua Trust and Rotoiti 3G1 Blocks (2015) Chief Judge's MB 228
Respondent allowed to claim for management time - Manuirirangi v Parininihi ki Waitotara Incorporation - Waiokura Te Kauae blocks (2014) 319 Aotea MB 247 (319 AOT 247)
Partially granted - Goffe v ANZ Bank New Zealand Limited - Whirinaki 5K 6F (2015) 99 Taitokerau MB 248 (99 TTK 248)
Status of land:
Change from Māori freehold land to general land declined - Gilbert Family Trust - Marokopa 3 Block (2015) 97 Waikato Maniapoto MB 68 (97 WMN 68)
Land deemed General land under Māori Affairs Act 1953 – Coast Law - Allotment 266A3C2 Waimana Parish Block (2014) 103 Waiariki MB 270
Review of trust and removal of trustees - Raukawa v Lux - Te Oitahuna Raukawa Whānau Trust (2015) 116 Waiariki MB 288
Review of trust and removal of trustees - Worsnop v Lux - Honeri Raukawa Whānau Trust (2015) 117 Waiariki MB 3
Removal of trustee - Worsnop v Lux - Ruarakai-Tokomanawa Lands Trust (2015) 117 Waiariki MB 26
Applicant had transferred right to occupy - Tawera v Tawera – Waitangi A1A2 (2014) 39 Tairawhiti MB 45 (39 TRW 45)
Inquiry granted into administration - Powell - Tunapahore 6 (2015) 118 Waiariki MB 150
Removal of trustees - trustee encouraged to resign - Royal v Broughton - Muhunoa 3A1E1 Sub 8A (Kikopiri Marae Māori Reservation) (2014) 325 Aotea MB 250 (325 AOT 250)
Gazette Notice was not confusing or uncertain – Murray - Mahinepua B1 (2014) 87 Taitokerau MB 227 (87 TTK 227)
Whether persons were whāngai and disposition of Māori land on intestacy - Pomare - Peter Here Pomare (2015) 103 Taitokerau MB 95 (103 TTK 95)
Fresh election for committee of management - Whata - The Proprietors of Ruahine Kuharua Incorporation (2015) 120 Waiariki MB 204 (120 WAR 204)
Withdrawal of an application to the Court - Dawson v Dawson - Orohaki 894B Ahu Whenua Trust (2015) 29 Te Waipounamu MB 161
Refusal to waive application fee reversed - Wilson - Oue 2B3 and other blocks (2015) 2015 Chief Judge's MB 215 (2015 CJ 215)
Application for urgent remedies hearing and urgent inquiry declined - Ahitahi/Araukuku Hapū Claim (Wai 552, #2.35)
Life or death, and traditional medicine – primacy of indigenous rights - Hamilton Health Sciences Corporation v DH 2014 ONCJ 603 - Andrew Row
Criminal Justice, the State and Māori - Kim Workman, 2015 J. D. Stout Fellow, will deliver the third of our 2015 seminars on 28 May 2015 at the Faculty of Law, Victoria University of Wellington
Recent developments in co-governance and co-management - Paul Beverley will deliver the second seminar for 2015 on 21 May 2015 at the Faculty of Law, Victoria University of Wellington
Ko te manu e kai ana i te mātauranga - nōnā te ao: overseas postgraduate reflections - Horiana Irwin Easthope and Natalie Coates will deliver the first of our 2015 seminars on 7 May 2015 at the Faculty of Law, Victoria University of Wellington
The Implementation of the Declaration on the Rights of Indigenous Peoples: Implications for Aotearoa/New Zealand - Professor James Anaya, University of Arizona, will deliver this public lecture on 11 June 2015 at Old Government House, Auckland]]>
Download the exposure draft Te Ture Whenua Māori Bill (Haratua 2015) and the Government's consultation proposals about the law reform.
The Government has released an exposure draft Te Ture Whenua Māori Bill and has engaged in consultation with the public on its proposed reforms to the law relating to Māori land.
An independent panel of experts earlier recommended new Māori land legislation to replace Te Ture Whenua Māori Act 1993. The Panel considered that the Māori Land Court's current role in the management and utilisation of Māori land can be scaled back in favour of greater final decision-making by those with governance roles for Māori land. The Panel's recommendation was that decision-making about governance and use of Māori land should be by engaged owners. Safeguards should remain for disposals of Māori land. Further, duties and responsibilities of those with governance roles should be aligned with the general law.
The Government subsequently considered the Panel's views and developed more detailed proposals.
In February 2015 the Minister for Māori Development appointed an external advisory group to help to progress law reform of the governance and management of Māori land.
See (2015) March Māori LR, (2014) April Māori LR and (2013) May Māori LR for further background information about this law reform process.
The law reform proposals continue to stress the balancing of goals to use and develop Māori land safeguarding the retention of Māori land given its significance as a taonga tuku iho (precious treasure handed down). These objectives are supported by the following core policy settings :
The proposed changes will:
- Support and promote the retention and use of Māori land by its owners;
- Empower Māori land owners to pursue their aspirations for the sustainable development of their land;
- Enable Māori land owners to make decisions without needing Māori Land Court approval and encourage owner participation;
- Respect the intrinsic cultural significance of Māori land; and
- Provide an effective alternative to litigation to resolve disputes.
A programme of public consultation, including 23 consultation hui (meetings) will be held in June.
Details of these meetings are available here.
A consultation document describes the reform proposals.
Submissions in response to the consultation proposals were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.
The following information is copied from the explanatory note provided at the front of the exposure draft of the Bill:
Clause by clause analysis
Clause 1 states the title of the Bill.
Clause 2 specifies the commencement date of the Bill.
Part 1 (Preliminary provisions: clauses 3 to 11)—
- specifies the aronga/purpose and principles of the Parts that are to become Te Ture Whenua Māori Bill:
- defines and explains terms used in the Parts that are to become Te Ture Whenua Māori Bill:
- provides for tikanga Māori to be determined by evidence in proceedings.
Part 2 (Whenua Māori/Māori land and whenua tāpui: clauses 12 to 38)—
- defines Māori customary land and Māori freehold land (together, Māori land):
- prohibits the disposition of Māori customary land and restricts the disposition of Māori freehold land:
- empowers the Māori Land Court (the court) to determine whether land is Māori customary land or Māori freehold land:
- provides for how land becomes or ceases to be Māori freehold land:
- allows whenua tāpui to be reserved over private land (which includes all Māori land), Crown land, or other specified land for certain purposes and for the common use and benefit of certain beneficiaries.
Part 3 (Ownership interests in Māori freehold land: clauses 39 to 75)—
- specifies the rights of beneficial owners (owners) of Māori freehold land:
- allows the owners of Māori freehold land to convert to collective ownership:
- specifies how the owners of Māori freehold land make decisions (Schedule 2 sets out a default decision-making process for decisions requiring agreement of owners of Māori freehold land):
- provides for whānau trusts to hold owners’ beneficial interests in Māori freehold land for the benefit of certain whānau members:
- provides for the appointment of kaiwhakamarumaru to manage the property (including Māori freehold land) of persons needing protection.
Part 4 (Dispositions of Māori freehold land and other land: clauses 76 to 133)—
- restricts the disposition of a parcel of Māori freehold land by sale, exchange, or gift or by an action under another enactment:
- allows a parcel of Māori freehold land to—
- have its boundary with another parcel adjusted:
- be partitioned into new parcels:
- be amalgamated with other parcels into a new parcel:
- have its beneficial ownership aggregated with, or separated from, that of other parcels:
- restricts the grant or variation of the following lesser interests over a parcel of Māori freehold land: a lease, licence, profit à prendre, mortgage, charge, or easement:
- allows an occupation lease or licence to be granted over a parcel of Māori freehold land:
- allows a kawenata tiaki whenua to be created over a parcel of Māori freehold land to preserve and protect certain places:
- restricts the disposition of owners’ individual freehold interests in Māori freehold land to certain sales or gifts, exchanges, mortgages, or charges:
- provides for the court to make orders of confirmation for the dispositions that require them.
Part 5 (Authority to act in relation to Māori freehold land) has 3 subparts.
Subpart 1 (clauses 134 to 146) allows for the court to appoint an administrative kaiwhakarite to act on behalf of the owners of Māori freehold land for particular purposes. The purposes are set out in clauses 134(1)(a) and 135.
Subpart 2 (clauses 147 to 160) allows for the chief executive to appoint a managing kaiwhakarite to manage Māori freehold land on behalf of its owners in particular circumstances. The circumstances are set out in clause 151. Clause 153 sets out what happens to any income generated from the land by the managing kaiwhakarite.
Subpart 3 (clauses 161 to 189) allows for the owners of certain Māori freehold land to appoint a governance body to manage the land on their behalf. Clause 161(3) specifies the entities eligible to be appointed as a governance body and clause 164 sets out the appointment process. The relationship between a governance body and owners of Māori freehold land is established by a governance agreement. Schedule 3 sets out the requirements for governance agreements. Clause 163 sets out the rights of owners in respect of Māori freehold and other assets managed on their behalf by a governance body. Existing Māori incorporations, ahu whenua trusts, and whenua tōpū trusts will transition to the new regime as set out in Schedule 1.
Part 6 (Operation of governance bodies: clauses 190 to 226) covers—
- the powers, duties, and responsibilities of governance bodies and their kaitiaki (those occupying a position in the body that is comparable with that of a director of a company) (clauses 190 and 191):
- the vesting of an asset base in a governance body on registration of a governance agreement (clauses 193 to 197):
- how governance bodies can change holdings of Māori freehold land managed under a governance agreement (clauses 198 to 203):
- the application of revenues earned by a governance body (clauses 204 to 206):
- the distribution of all or part of an asset base to the owners of Māori freehold land, if the governance body will no longer manage the land on the owners’ behalf (clauses 207 to 211).
Part 7 (Administration of estates: clauses 227 to 244)—
- provides for how beneficial interests in Māori freehold land are distributed when an owner dies without a will:
- provides for how beneficial interests in Māori freehold land that are gifted by will become vested in the beneficiaries of the gift.
Part 8 (Registers, jurisdiction about land, giving notices, and other provisions: clauses 246 to 287) has miscellaneous provisions that—
- require certain documents to be provided to the chief executive or the Registrar-General of Land:
- provide for the chief executive to keep a Māori land register that records matters relating to Māori freehold land and other land, such as beneficial interests in land and information about governance bodies that manage land. Schedule 4 specifies the information that must be kept on the Māori land register:
- provide for matters relating to the register kept by the Registrar-General of Land under the Land Transfer Act 1952:
- prevent Māori freehold land from vesting in the Crown when it has no owner:
- give the court jurisdiction in certain land matters:
- generally prevent a judgment against a debtor from being enforced against Māori land:
- specify how notices are to be given:
- allow regulations to be made.
Part 9 (Dispute resolution: clauses 288 to 302)—
- assists Māori land owners and other parties to quickly and effectively resolve disputes about Māori land in a way that is consistent with the concept of mātauranga takawaenga:
- requires the chief executive to provide a dispute resolution service conducted by a kaitakawaenga:
- enables the court to refer a dispute for resolution under this Part:
- requires litigation parties to refer certain kinds of disputes (other than disputes over points of law) for resolution under this Part before the court will hear the dispute, including disputes over the ownership or possession of any Māori freehold land.
Part 10 (Repeals, revocations, and consequential amendments: clauses 303 to 305)—
- repeals and revokes certain enactments:
- amends certain enactments as a consequence of other provisions.
Part 11 (Preliminary provisions: clauses 306 and 307) contains preliminary provisions for the purposes of the Parts that are to become Te Kooti Whenua Māori Bill.
Part 12 (Māori Land Court: clauses 308 to 345)—
- continues the court in its present form and largely with its present jurisdiction:
- carries over the court’s jurisdiction under the Maori Fisheries Act 2004 and Maori Commercial Aquaculture Claims Settlement Act 2004.
Part 13 (Māori Appellate Court: clauses 346 to 363) continues the Māori Appellate Court in its present form and largely with its present jurisdiction. The Judges of the Māori Land Court for the time being are the Judges of the Māori Appellate Court.
Part 14 (Provisions applying to both courts: clauses 364 to 393) sets out provisions that apply to both courts, including provisions relating to—
- judicial conferences and directions:
- the use of te reo Māori:
- the representation of parties:
- stating cases for the High Court:
- the jurisdiction to issue injunctions:
- costs orders:
- the enforcement of judgments and orders:
- the appointment of receivers.
Part 15 (Appointment of Judges and related provisions: clauses 394 to 406) carries over provisions relating to the appointment of Judges of the court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill, including—
- a requirement to publish the process for appointments:
- restrictions on undertaking other employment or holding other offices:
- a requirement for a protocol relating to the activities of Judges.
Part 16 (Rules, regulations, judgments, restricting right to commence proceedings, etc: clauses 407 to 422) carries over provisions relating to the Rules Committee and the rules of court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill that relate to meritless litigation.
Information provided by Te Puni Kokiri sets out the proposals for consultation and the timetable. Submisssions on the proposal for consultation were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.]]>
Ontario Court of Justice, Canada 2014 ONCJ 603
14 November 2014
Hamilton Health Sciences Corporation v DH
Ontario Court of Justice, Canada 2015 ONCJ 229
24 April 2015 (endorsement)
This case involved a child protection application made by the applicant hospital. The hospital's application arose from an aboriginal mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine and the 2014 decision was amended by the Court after a further application by the parties.
Download Hamilton Health Sciences Corp v DH (2014) and Hamilton Health Sciences Corp v DH (2015).
|Life or death, and traditional medicine – primacy of Indigenous rights|
|Date||14 November 2014 and 24 April 2015|
|Case||Hamilton Health Sciences Corp v DH; Hamilton Health Sciences Corp v DH (2015 endorsement)|
|Citation||2014 ONCJ 603; 2015 ONCJ 229|
|Court||Ontario Court of Justice, Canada|
|Legislation cited||Canadian Charter of Rights and Freedoms, s 1 (Canada); Child and Family Services Act, RSO, c C 11, 1990, s 37, s 40, s 72 (Canada); Constitution Act, 1982, being Schedule B to the Canada Act 1982, s 35 (Canada); Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s 4 (Canada); United Nations Declaration on the Rights of Indigenous Peoples, Art 24|
|Cases cited||R v Van der Peet  2 SCR 507, 1996 CanLII 216 (SCC); Children’s Aid Society of Ottawa v S(C)  OJ No 5060 (Div Ct); Children’s Aid Society of Toronto v P(L) 2010 ONCJ 320; H(T) v Children’s Aid Society of Metropolitan Society of Metropolitan Toronto  OJ No 5607 (CJ); Church v. Church, 2003 CanLII 1942 (ON SC).|
|Overview and result||The applicant hospital made a child protection application given a mother’s refusal to treat her daughter’s cancer with chemotherapy; instead, the mother wanted to use traditional medicine. The Court decided that it was the mother’s aboriginal right, as the child’s substitute decision maker, to use traditional forms of medicine. Subsequent to the Court’s 2014 judgment the family decided to utilise both traditional and Western medicine.|
JJ, an 11 year-old girl from the Six Nations of the Grand River (an indigenous Indian band in Canada) was diagnosed with acute lymphoblastic leukemia. JJ’s initial testing indicated that she had a 90 to 95 per cent chance of being cured with chemotherapy. The specialists at the applicant hospital were not aware of any survivors of acute lymphoblastic leukemia who did not receive chemotherapy treatment. Initially, JJ undertook chemotherapy treatment, however after 12 days of treatment, JJ’s mother, DH, withdrew consent for the continuation of that treatment and proposed to pursue treatment in accordance with traditional medicine.
The applicant hospital took the position that JJ lacked the capacity to make such a life and death decision and it brought a child protection application under the relevant Canadian legislation, s 40(4) of the Child and Family Services Act (“the Act”).
The first question for the Court was whether the Court was the appropriate forum for such a dispute.
The respondent argued that JJ was not a child in need of protection, but rather a child in need of a diagnosis. As such, the case should be heard before the Consent and Capacity Board. Additionally, the respondent argued that JJ’s capacity was never properly assessed, nor was the specialist’s finding of incapacity ever properly articulated to JJ or DH.
The applicant hospital said that it had determined that JJ was not capable of making an informed decision. Further, as DH was JJ’s substitute decision-maker, by deciding to discontinue JJ’s chemotherapy, that decision placed JJ at medical risk and thus JJ was a child in need of a protection.
Justice Edward accepted that the specialists were correct in concluding JJ lacked capacity to make such a life and death decision as to discontinuation of chemotherapy. This was because the specialists said that JJ lacked the ability to understand her diagnosis, its therapy, and the consequences of stopping chemotherapy. Based on Canadian precedent, the Court held that the Court, rather than the Consent and Capacity Board, was the appropriate forum.
In applying s 40(4) of the Act, the Court stated that the real issue was whether there were reasonable and probable grounds to believe that JJ was a child in need of protection. The Court noted that the only applicable part of the s 37(2) definition section of “child in need of protection” was s 37(2)(e) which states that:
“the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.
The applicant hospital held that JJ was a child in need of protection in light of this definition.
The evidence was that DH, when discontinuing her daughter’s chemotherapy treatment, expressed her strong faith in her native culture and believed that pursuing traditional medicine would help to heal JJ. Additionally, the family comprised committed traditional longhouse believers who integrated their culture in their day-to-day living. As Edward J summarised, “their longhouse adherence is who they are and their belief that traditional medicines work is an integral part of their life”, not just an “11th-hour epiphany employed to take her daughter out of the rigors of chemotherapy”.
Justice Edward said, to assess the claim, the Court needed to consider the application of s 35(1) of the Constitution Act 1982 that states, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby reorganized and affirmed.”
Therefore, Edward J was required to assess whether DH’s decision to pursue traditional medicine, as JJ’s substitute decision-maker, was in fact an aboriginal right to be recognised and affirmed.
Before answering this question, Edward J affirmed the following statement of Lamer J in the Supreme Court case of R v Van der Peet, 2 SCR 507 at :
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
Justice Edward held, based on R v Van der Peet, that what was required is a practice, custom or tradition that is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practice, customs and traditions of pre-contact times. His Honour held that in this case, the use of traditional medicines by Six Nations peoples was practiced prior to European contact and that it continues to form an integral part of who the Six Nations are today. As a result, Edward J held that it was an aboriginal right.
In a powerful conclusion, Edward J confirmed:
 ... [DH]’s decision to pursue traditional medicine for her daughter [JJ] is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.
As Edward J recognised in Hamilton Health Sciences Corporation v DH, the case involved the difference between life and death. However, in the end deference was given to the mother’s aboriginal right to use traditional medicine in the treatment of her daughter’s cancer. Importantly, Edward J recognised that it was inappropriate in moulding the scope of recognition of an aboriginal right, or upholding its application, to base that on a “Western medical paradigm”.
There has been a massive amount of media and legal interest in this case; while some purport it is a triumph of indigenous rights, others have claimed it was wrongly decided in light of binding precedent. While I do not purport to be an expert on Canadian constitutional law, some brief comments are made here before I go on to outline the 2015 addendum that Edward J issued to augment his 2014 judgment.
Some academics have criticised that the case ignored the Supreme Court of Canada case of B(R) v Children’s Aid Society of Metropolitan Toronto  1 SCR 315. That case involved an infant who required a life-saving blood transfusion; however, the Jehovah’s Witness parents refused such treatment. The Supreme Court of Canada held that relevant provisions of the Child Welfare Act 1980 (now the Child and Family Services Act) imposed a reasonable limit on parents’ religious beliefs and parents’ right to raise their child in accordance with those beliefs under the Canadian Charter of Rights and Freedoms (“Canadian Charter”).
Justice Edward was right to state that s 35 of the Constitution Act is not subject to s 1 of the Canadian Charter, which is the Charter’s “reasonable limits clause”. While s 35 is outside of that framework, this does not mean that the aboriginal rights affirmed and recognised by s 35 are absolute.
The Canadian Supreme Court in R v Sparrow recognised a two-step “justificatory scheme” whereby the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s 35(1).
The first question is whether the legislation in question has the effect of interfering with an existing aboriginal right. This first question involves asking whether the “limitation is unreasonable”, whether it imposes “undue hardship” and whether it denies “the holders of the right their preferred means of exercising that right”.
If a prima facie infringement is found, the second step requires the government to prove justification for any limitations. The inquiry involves considerations such as: whether there is a valid legislative objective; that the legislative objective is implemented consistently with the honour of the Crown in dealing with aboriginal peoples; whether there is minimal impairment of the aboriginal right; and whether there has been consultation with aboriginal people.
As to the first step of finding whether there is a prima facie breach one may argue that the limitation imposed by the Child and Family Services Act is not unreasonable; instead, it promotes a fundamental objective of promoting the welfare and best interests of the child. This objective is not only a cornerstone of many jurisdictions' child welfare laws, but is also an objective affirmed as fundamentally important by art 3(1) of the United Nations Convention on the Rights of the Child. Thus, it could be argued that there was no prima facie infringement of the right.
As to the second step, even if there was a prima facie infringement, it might be argued that such an infringement is justifiable. Another commentator, Joshua Shaw, has provided a analysis of whether it is justifiable. Shaw argues that the infringement could be justified for various reasons: first, the Act has a valid legislative objective of promoting the wellbeing and biological integrity of children; secondly, the Act is not implemented in a manner that arbitrarily takes children from their homes, thus violating the honour of the Crown and the Crown’s fiduciary relationship to the aboriginal people; thirdly, it is minimally impairing, since aboriginal heritage would play a significant component later in the best interests test.
One criticism of Shaw’s analysis is that it places so much weight on the Western medical paradigm in the justificatory analysis of any justified limitation of the aboriginal right to use traditional medicine that, in effect, it places the Western paradigm in a privileged and, ultimately, superior space. A question remains whether a medical technique being proven to work according to the Western medical paradigm is the right standard for limiting a child’s aboriginal right to use traditional medicine. One of the dangers is that a child’s aboriginal right to practice traditional medicine is only exercisable insofar as it fits the Western medical paradigm – this significantly curtails the right.
Regardless of the outcome of the justificatory scheme introduced by the Supreme Court of Canada in R v Sparrow, it is concerning that Edward J made no mention of this case. It is therefore arguable that the case was decided per incuriam (through lack of care). Instead of claiming that DH’s aboriginal right was absolute as it was not subject to s 1 of the Canadian Charter, Edward J was required to undertake a more careful and nuanced analysis under the test created in R v Sparrow. While Edward J can be commended for championing aboriginal rights, he did so in such a way that was contrary to binding authority.
Application to New Zealand
Section 20 of the New Zealand Bill of Rights Act 1990 affirms the rights of minority groups to practice their culture and to profess and practice their religion. However, s 4(1)(b) of the Care of Children Act 2004 (COCA) makes the “welfare and best interests” of the child the paramount consideration when making all orders under the Act.
Section 31 of the COCA allows for an eligible person to apply to the court for an order placing a child under the guardianship of the court or appointing any named person to be the agent of the court, either generally or for any particular purpose.
In light of the New Zealand statutory context, and as illuminated in cases dealing with medical procedures and children of Jehovah’s Witnesses, it is the author’s view that the result reached in Hamilton Health Sciences Corporation v DH may not be possible in New Zealand.
The case of Auckland District Health Board v Z (2007) 25 FRNZ 596 (HC) involved Jehovah’s Witness parents and their ill daughter. While Baragwanath J recognised a parent’s power as to decision-making in relation to a child’s medical treatment, his Honour noted that the COCA “emphasises that the welfare and best interests of the child are the sole focus of the consideration by the Court which may override parental rights” (at ). Additionally, as recognised in another case involving Jehovah’s Witnesses, Auckland District Health Board v E  NZHC 2154, although parents have a right under s 15 of the New Zealand Bill of Rights to manifest their religion, under s 4 of the COCA, that right does not allow acts or omissions likely to place the child’s life, health or welfare at risk (at ).
If Māori parents refused consent for their child to undergo chemotherapy (in circumstances similar to JJ’s) in favour of more traditional medicine (rongoā Māori), a New Zealand court may override their wishes. A court may conclude that while Māori guardians have a right under s 20 of the New Zealand Bill of Rights Act to practice their culture and use rongoā Māori, that right does not extend to permitting acts or omissions likely to place a child’s life, health or welfare at risk. Again, such an analysis risks placing the Western conception of “life, health or welfare” in a superior position to Māori conceptions of hauora (wellness).
On 24 April 2015, Justice Edward took the rare step of releasing an addendum to his decision in Hamilton Health Sciences Corp v DH (labelled an “endorsement”). The judge agreed to an application by parties to the case to add two paragraphs to his earlier judgment to clarify its meaning.
In his addendum decision Edward J made a number of points, including: first, the recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount; secondly any aboriginal right to use traditional medicine must be respected in any analysis of the best interests of the child; thirdly, the concept of the best interests of the child being paramount is consistent with the recognition of an aboriginal right to use traditional medicine; and fourthly, recognizing aboriginal rights correctly considers the principle of reconciliation between Indigenous and non-Indigenous Canadians.
In terms of JJ, after the original judgment the Government of Ontario became involved. Further, JJ’s health team was expanded to include a senior pediatric oncologist and a traditional Haudenosaunee Chief who is also a practitioner of traditional medicine. In March 2015, after a period of remission, JJ’s cancer returned and her family decided to continue using traditional medicine and to resume chemotherapy.
The Court’s April 2015 endorsement decision concludes with the following (at ):
The joint submission, that has been read into the record, notes how the province and the family collaboratively worked to form a health care team to bring the best both had to offer to address J.J.’s ongoing treatment. This approach recognizes the province’s acceptance of the family’s right to practice traditional medicine and the family’s acceptance western medicine will most certainly help their daughter. It is simply a recognition of what is in J.J.’s best interest. Such an approach bodes well for the future. It is also an approach that is reflected in Article 24 of the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, which states in part:
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices . . . Indigenous individuals also have the right to access, without any discrimination, to all social and health services.
Trusts - variation - Appellate Court decision upheld - The Te Aute Trust Board v Hauraki  NZCA 532
Recovery of land - Trustees in the section 14 block XIII Tautuku Trust v Cairns - Part Section 3 Block XIII Tautuku Survey District (2015) 29 Te Waipounamu 48 (29 TWP 48)
Recovery of land – injunction to accompany recovery order – Henry v Wood - Part Whakanekeneke 1B (2014) 85 Taitokerau MB 175
Alienation - gifts - gift declined for contravening kaupapa of Act - Smith - Hauai 2D8 (2015) 99 Taitokerau MB 200
Partition – orders to give effect to a hybrid partition - Heta - Taiharuru 4C3B (2015) 99 Taitokerau MB 164
Partition - dismissed - insufficient support and benefit - Te Ngahue v the Proprietors of Whetumatarau B45B2 (Pohutu Station) (2015) 47 Tairawhiti MB 81
Partition - order granted by a narrow margin - Reo v Reo - Whangaruru Whakaturia ID9B1 and other blocks (2015) 100 Taitokerau MB 156
Partition - final orders after survey - Chase-Seymour - Paenoa Te Akau (2015) 114 Waiariki MB 195
Partition and establishment of ahu whenua trust - Horan - Hiwarau C (2015) 118 Waiariki MB 25 (118 WAR 25)
Land exchange - costs and change of status - Whooley - Ngaiotonga 1B1 and 2B1 and Lots 1 - 2, and 3 DP383105 (2015) 99 Taitokerau MB 138
Trusts - application for review of the Parehuia June Durie Kaitiaki Trust - Deputy Registrar v Graham - Parehuia June Durie Kaitiaki Trust (2015) 334 Aotea MB 201
Trusts - breach of trustee duties - Marks v Orbell – Rowallan Block XIII Sections 1 and 5 (2015) 28 Te Waipounamu MB 37
Trusts - application to enforce obligations of trust against the trustees of Purekawa A Trust - Whare v Trustees of Pukerewa A Trust – Pukerewa A Block (2015) 95 Waikato Maniapoto MB 105
Māori Incorporations – no investigation warranted – Floyd v The Proprietors of Hauhungaroa 2C Block Incorporation Committee of Management - Hauhungaroa 2C Incorporation (2014) 325 Aotea MB 42 (325 AOT 42)
Waitangi Tribunal procedure - Tribunal revokes priority hearing on prisoner voting - Directions of the Deputy Chairperson Rescinding Grant of Priority in the Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim (2015 Wai 2472, #2.5.11)
Are We There Yet? The Future of the Treaty of Waitangi: A Review - Max Harris
Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand - Gareth Morgan and Susan Guthrie
Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie - Max Harris
Download the Māori Law Review April 2015 (577 KB PDF).
Are We There Yet? The Future of the Treaty of Waitangi
Gareth Morgan and Susan Guthrie
Phantom House Books 2015 (ISBN0987666681)
Reviewed by Max Harris, Examination Fellow, All Souls College, Oxford.
Gareth Morgan and Susan Guthrie’s book, Are We There Yet? The Future of the Treaty of Waitangi, has already sparked significant debate since its release in January 2015. A series of op-eds published by Morgan in the New Zealand Herald, and based on the book, led to two strong articles in reply by Māori lawyer Joshua Hitchcock. Morgan’s speaking engagements at Ratana on 22 January and at Orewa on 4 February (the latter alongside Dr Don Brash) also attracted significant media attention.
But amidst all the heat and excitement that has surrounded Morgan, there have been few careful efforts to examine the arguments he and co-author Susan Guthrie make in their book. This review attempts that task. Part One of this review reconstructs three major Treaty-related arguments in the book, and highlights missteps in each of these arguments. Part Two of this review tackles head on the claim that the Treaty of Waitangi should not be the basis for Aotearoa New Zealand’s constitutional development. In a substantive digression away from the book, I start to sketch how the Treaty could meaningfully undergird the future of Māori–Pākehā relations while also providing a foundation for values that could apply to other groups and various policy contexts. Part Three analyses the style and approach of the book. I note that Are We There Yet? is admirable in its accessibility, although it is characterised by some errors. I then sum up the contribution that Morgan and Guthrie have made to legal and constitutional debate in Aotearoa New Zealand.
Not everything in this review, and not everything in the book, is about law, narrowly construed. What follows takes a broad view of law, perhaps influenced by tikanga and kaupapa Māori – which includes values, relationships, and cultural factors.
Morgan and Guthrie’s book is somewhat strangely structured for a book purporting to be about the future of the Treaty of Waitangi. The Treaty is hardly mentioned in the first six chapters (out of twelve in total), and there are long diversions on subjects such as devolution in education. One possible explanation is that this was originally designed as a book about race relations, but was reframed as a Treaty book, in part because 2015 is the 175th anniversary of the signing of the Treaty.
The points made about the Treaty, positive and negative, are not always succinctly stated in the book – instead Morgan and Guthrie tend to circle around certain Treaty-related arguments, or to make significant passing comments. (Their arguments about political philosophy, ethnicity, and social policy generally are actually more clearly laid out.) This makes it necessary to do some reconstruction to understand the claims that Morgan and Guthrie make about the Treaty of Waitangi. The reconstruction reveals three key theses: about the nature of the Treaty relationship, the tension between Articles 2 and 3 of the Treaty, and how the Treaty has been used and interpreted since 1840.
The first major argument about the Treaty made by Morgan and Guthrie is that it should be understood as a compact between “Māori and other New Zealanders” (163), rather than between the Crown and Māori. This is the “only logical conclusion” if the Treaty is to be “relevant today” (163). Morgan and Guthrie’s reasoning for this position is a little contorted. They say that “the Treaty relationship is between society” and Māori, because Parliament represents society. They then state that since “one can’t be in a relationship with oneself”, the relationship must be “between Māori and non-Māori” (163–164).
There are lots of subtle leaps that Morgan and Guthrie make to reach this conclusion. They are assuming that the Crown, as the Treaty partner, means Parliament; they are then also assuming that Parliament can be equated to society. While the first move (Crown = the Crown in Parliament, comprising the House of Representatives and the Sovereign) might be defensible or a part of an explanation in constitutional terms, the second (Parliament = society) requires more argument than Morgan and Guthrie provide. And it is not entirely clear why society as a whole cannot have a particular relationship, or specific obligations, to a group that is part of society. It is hard to know why Morgan and Guthrie are so averse to the Treaty being seen as a compact between the Crown (as the Executive) and hapū and iwi, or the Crown and Māori. This is the interpretation most obvious from looking at the text of the Treaty, and it fits with understandings of how constitutional documents create relationships between the government and particular groups. Perhaps it is because understanding the Treaty in this orthodox way, as placing obligations on the Crown as the executive arm of the State, gives the Treaty quasi-constitutional force, a position Morgan and Guthrie want to reject. Whatever the reason, what is clear is that Morgan and Guthrie don’t set out the nature of the Treaty relationship convincingly. They also err in asserting that it is “simply a matter of political convenience” that Treaty settlements are negotiated with iwi. Morgan and Guthrie are here not giving sufficient weight to the text and context of the Treaty, and the fact that the Treaty refers to chiefs and tribes – a problem that crops up at different points in their book. (It is surprising, and telling, that the full text of the Treaty does not appear in the book, though it is sometimes quoted in part.)
The second Treaty-related argument that Morgan and Guthrie return to at different points in the book, and that Morgan has made forthrightly in his New Zealand Herald columns, is that there is an inherent tension between Articles 2 and 3 of the Treaty. Morgan and Guthrie say that “Article 3 grants equal citizenship to Māori and non-Māori alike”, an assurance of “political equality” (178). They then note that the notion of having equal opportunities to influence decisions “is clearly inconsistent with opportunities reserved only for Māori groups” (178). They later express this conflict as one between “group rights … and individual rights” (179). Earlier in the book, they also offer some theoretical reasons for concern about group-differentiated rights: Morgan and Guthrie claim that power-sharing “risks causing” division and may incentivise difference (128). It is these claims that Morgan and Guthrie seem to lean on when arguing that unique political rights for Māori undercut political equality.
The authors are not clear about their preferred solution to this alleged conflict. They believe that Article 2’s explicit guarantees of “natural resources and Māori cultural treasures” should be upheld. However, other Māori claims based on Article 2 “should be removed from the Waitangi Tribunal and heard elsewhere”, possibly in citizens’ assemblies (185), where they can be debated openly. Morgan and Guthrie seem to be generally opposed to unique political rights, but interestingly in their final chapter, they suggest that as a “risk mitigation plan”, “active measures to build social connections between” Māori and others might be a way to “compensate for the incentive to emphasise” difference (329).
There are numerous problems with this argument. First, the general focus on the Treaty being contradictory and inconsistent in the book (Morgan and Guthrie talk of “the opaqueness and uncertainty around the meaning of the Treaty” at 181) reflects a long-running narrative in writing about the Treaty. But it ignores more recent work (including Ned Fletcher’s landmark, recently-published doctoral thesis, “A Praiseworthy Device for Amusing and Pacifying Savages: What the Framers Meant by the English Text of the Treaty of Waitangi”) which suggests that it is possible to synthesise and unify the various articles of the Treaty, and the Māori and English texts. It is not easy to summarise this recent work here, but in essence a modern view of the Treaty is emerging that the Treaty as a whole can be seen in a coherent way as providing qualified authority to the Crown, conditional on the assurance of rangatiratanga for Māori. It is disappointing that Morgan and Guthrie do not engage with this perspective.
Secondly, more importantly, Morgan and Guthrie are quick to conclude that Article 2 and Article 3 are in conflict. In reaching this conclusion, they appear to subscribe to a very cramped view of what “political equality” is under Article 3. (There is little focus on the text of Article 3, which assures Māori protection, and says that they will have the same rights and duties of citizenship as individuals in England.) There is much political philosophy work showing that equality does not involve treating people the same, and may involve encouraging and supporting difference; Morgan and Guthrie do not consider this view of political equality, which may have required them to revise their opinion that Articles 2 and 3 are necessarily inconsistent.
Thirdly, Morgan and Guthrie’s view that the Treaty only entitles Māori to authority over natural resources and cultural treasures, and not other items, is odd. There is some ambiguity over the scope of what they mean by “natural resources and cultural treasures”: does this include historically-owned land? This ambiguity aside, Morgan and Guthrie try to offer a logical or conceptual argument for their distinction: they say that when it comes to natural resources and taonga, the relationship “is not political … but private” (224) – and the negotiations “are more like discussions between joint owners”. But this misconstrues the Treaty, at best, and at worst simply ignores the Māori version of the Treaty. The Māori version of the Treaty speaks, after all, about “te tino rangatiratanga”, which extends beyond private property and mere ownership interests. To reduce Māori Treaty rights to certain ownership entitlements is therefore to read down the Treaty. At one point, Morgan and Guthrie commend a Richard Hill quotation that talks of how “the endemic Crown refusal to recognise any meaningful role for rangatiratanga in the body politic is a keynote lesson that has not yet been learnt” (240). But Morgan and Guthrie are themselves failing to learn this lesson by refusing to recognise a meaningful role for rangatiratanga.
Fourthly, Morgan and Guthrie provide no firm evidence that power-sharing arrangements actually undermine social cohesion. The evidence they provide in chapter 5, which is not New Zealand-specific, only points to the risks of division, but these risks are then given significant weight by Morgan and Guthrie in later argument. It is equally plausible – and Will Kymlicka’s work in Multicultural Citizenship bears this out – that power-sharing arrangements or group-differentiated rights might improve, rather than undermine, social cohesion by expressly including groups such as Māori in a polity that has historically excluded them.
Fifthly and finally, even if it is accepted that there is a conflict between Articles 2 and 3, Morgan and Guthrie imply that equality under Article 3 should trump any Māori claim to unique political and other rights. But they need to provide further argument for that position: there is nothing in the Treaty to indicate that Article 3 is superior to Article 2 even if a conflict were established.
The third major Treaty-related claim marshalled by Morgan and Guthrie is that the way the Treaty is being used and interpreted by the Waitangi Tribunal and others is misguided. The authors note that although the Treaty is “a political document”, lawyers have played a major role in interpreting the Treaty (165). And non-Māori have been neglected in the interpretation of the Treaty, say Morgan and Guthrie. The Tribunal has also misstepped, according to the authors, in articulating the Treaty principle of a right to development, which is characterised as something “close to … an automatic right to business assistance for Māori enterprises” (210). To address these problems, Morgan and Guthrie propose limiting the Tribunal’s mandate so that it may investigate only Treaty grievances relating to natural resources or cultural treasures. They call for an extension of the Tribunal’s powers so that it may hear from non-Māori. Further, they argue that the Tribunal needs to “lift the quality of its reporting to the public” and be more accessible in the language it uses (332).
Here Morgan and Guthrie may be on slightly firmer ground – but again they simplify Treaty matters. It is hardly accurate to call the Treaty purely “a political document”, when, apart from its constitutional status, the Treaty does influence statutory interpretation, is regularly invoked in case law, and has a strong legal effect through its principles. Moreover, Morgan and Guthrie’s complaint that non-Māori are excluded from the Tribunal process might not be accurate in terms of the Tribunal’s ability to hear from third parties and is only problematic if one accepts the authors' earlier contention that the Treaty is a partnership between Māori and other members of society, as opposed to a compact between Māori and the Crown. (It is worth noting that the Wai 262 inquiry into mātauranga Māori (Māori knowledge) in respect of indigenous flora and fauna involved a week of hearing time allocated to third parties, including many non-claimants.) Once this view of the Treaty is punctured, as has been done above, Morgan and Guthrie’s objection also falls away. Morgan and Guthrie may be right that the Tribunal could benefit from condensing its reports. But the Tribunal has attempted to improve accessibility: the Wai 262 report Ko Aotearoa Tēnei contained a summary volume with a subsidised price, for example. Morgan and Guthrie also overlook the relevance of the United Nations Declaration on the Rights of Indigenous Peoples when discussing the development principle in this chapter. They mention the Declaration when examining consultation later in the book (but unfortunately refer to the Declaration there as the “Declaration of [sic] the Rights of Indigenous People [sic]”). In general, Are We There Yet?’s analysis of the use of the Treaty has some merit in providing an overview of historical flashpoints and conceptual issues. But, as with other aspects of the book, there is a lack of fine-grained investigation of how the Treaty or the Tribunal actually operate, and Morgan and Guthrie base their arguments on a very particular (and peculiar) view of the Treaty.
The other Treaty-related line of reasoning in Morgan and Guthrie’s book that deserves separate analysis is the view that the Treaty is an undesirable framework for future political and constitutional debate. Morgan and Guthrie acknowledge that the Treaty is a significant document. But they say that the contradiction between Articles 2 and 3 makes the Treaty an inauspicious basis for constitutional development. They also claim that issues of inequality, poverty, and race relations require broader conversations. The Treaty cannot build upon “a common interest”, in the same way that “pan-ethnic class-based activism” does, according to Morgan and Guthrie (188).
I have already given a partial answer to this concern above, in explaining that the contradiction between Articles 2 and 3 is more apparent than real. However, the best way to respond to Morgan and Guthrie’s assertion that the Treaty would not be a useful framework for political debate is to begin to show how the Treaty might be used – as a guide to race relations and as a way to seed further constitutional values. I therefore want to sketch out here how the Treaty might be understood in that manner. This is an ambitious project, and one that cannot be completed in this review alone. But I want to at least start and spark the debate on the types of values that might be drawn out of the Treaty, and I hope that this debate might be continued elsewhere. The enterprise prompts us to pay careful attention to the text of the Treaty, something that is not often done. (For this purpose, I have drawn on the modern English translation of the Māori text of the Treaty, rendered by Sir Hugh Kawharu and relied on previously by the Court of Appeal and Waitangi Tribunal, available online here: http://www.nzhistory.net.nz/files/documents/treaty-kawharau-footnotes.pdf.)
The preamble, main articles, and closing text of the Treaty offer a meaningful set of navigating lights for Māori–government relations. Article One ensures Crown governance, which could be expressed as sovereignty (if it is accepted that sovereignty need not be indivisible and can be qualified). Article Two ensures ongoing powers of chieftainship or tino rangatiranga for Māori, through tribal and other bodies, which guarantees self-determination as well as ownership of key resources. (The strength of Article Two is often overlooked: even the watered-down English version secures for Māori the “full exclusive and undisturbed” possession of resources.) Article Three then underscores the need for equality between Māori and non-Māori. The preamble reminds us that race relations must occur within a framework of law; the further text that follows Article Three indicates that the spirit of the Treaty is significant, too, and that a generous, purposive approach to the Treaty’s protections ought to be applied. All this makes clear that the Treaty can be an important constitutional document for Māori–Crown relations.
But I want to go beyond this and suggest that the Treaty offers a way of thinking about constitutional values more broadly, for all individuals and groups in Aotearoa New Zealand. Whilst the Treaty was written for specific parties, the ethos underpinning the Treaty provides a promising way of thinking about public policy and law, not just for the Treaty partners. This reading of the Treaty gives the document ongoing mana or esteemed status in the twenty-first century, and helps to resolve numerous constitutional puzzles, such as the tension between biculturalism and multiculturalism.
The preamble contains three concepts that are of importance for Aotearoa New Zealand in 2015. It speaks of “Peace and Good Order”, “just Rights and Property” (this only in the English version), and the need to avoid lawlessness. These can be converted into four values: peace and order, human rights, respect for property, and the rule of law. Such values were important at the time of the founding of this country, but remain significant today. How exactly they might be interpreted is a matter partly for debate.
Article One can be said to articulate a principle of good governance: the Crown was entrusted with governance powers on the assumption that they would use them wisely and for the benefit of all.
Article Two is directed towards self-determination, a value that has particular meaning for Māori, but which could be interpreted as an important priority for all individuals and groups in Aotearoa New Zealand.
Article Three is concerned with equality, a value that is not only relevant in the Māori–Crown relationship.
Finally, the closing text following Article Three embodies respect for deliberation and agreement as values: it records the fact that the Treaty has been considered and reflected upon, and that promises have been exchanged by the parties. It highlights, arguably, the ongoing utility of deliberation and agreement in the New Zealand polity.
Taken together, then, the Treaty could be viewed as a wellspring of at least nine constitutional values:
There are of course some who might say that there are additional important constitutional values not listed above. Others might contend that what the Treaty says about the Māori–Crown relationship is irrelevant to broader relationships in New Zealand. However, the values listed above represent values of general appeal and broad application, and can be traced directly back to the Treaty. They highlight that the Treaty can be protective of both biculturalism and multiculturalism. This exercise, then, whilst cursory, undermines Morgan and Guthrie’s suggestion that the Treaty is an inappropriate framework for constitutional development. Undoubtedly further analysis is necessary, and I welcome corrections to the list above or alternative suggestions. But I have hoped to show that at least it is possible that the Treaty could be a vehicle for values underpinning New Zealand’s constitutional future.
I have said very little thus far about the parts of the book not concerned with the Treaty, partly because this review has aimed to concentrate on the Treaty and partly because the book claims to be about the Treaty. However, it is worth noting that the book does offer a useful overview of some of the key accounts in political philosophy of the role of the State. Whilst Morgan and Guthrie do not fully justify why they have chosen the theorists they examine, they provide accessible summaries of the work of Amartya Sen and Robert Putnam in chapter 1 (although Morgan and Guthrie suggest that Sen and Putnam are opposed to group rights, when according to my reading of these authors, they never make this argument directly). Morgan and Guthrie also outline modern debates about ethnicity in chapter 2 (drawing especially on the work of Will Kymlicka and Paul Spoonley), applying these to New Zealand in chapter 4. And Morgan and Guthrie tackle in chapter 3 the very important question of whether public services should be culturally tailored – although their answers are somewhat inconclusive. The authors’ attempt to engage with literature about minority rights and power-sharing in chapter 5 is admirable, although (as I have already noted) their evidence is limited and they arguably attribute too much significance to their somewhat narrow literature review. Then chapters 10 and 11 offer interesting reflections on wellbeing and inequality in New Zealand, and on education and devolution. However, these passages feel a little out of place in a book supposedly about the Treaty, and it is notable that Morgan and Guthrie focus very little on historical disadvantage faced by Māori, an omission that allows them to make the specious claim that Māori suffer disadvantage that is comparable to other social groups (a claim undermined by Morgan and Guthrie’s own evidence, including the graph on page 290 which shows that there were significantly more Māori not in work, education, or training as of September 2011 compared to Pasifika and Asian New Zealanders).
The style and approach of the book are generally to be commended. These are nuanced, delicate issues, and for the most part Morgan and Guthrie convey sophisticated ideas in accessible language. There are occasional basic errors and the index is a little incomplete. All in all, however, Morgan and Guthrie do well to translate legal and policy documents into readable prose. They also deal deftly with evidence, and share some useful statistics, including the fact that 59% of all New Zealanders asked in a 2008 survey thought that the Treaty of Waitangi was important.
What, then, can we say about the book in the final analysis? We should not be too quick to praise every contribution to Treaty debates for ‘generating discussion’: after all, Don Brash’s Orewa speech generated discussion – and discussion that proceeds on inaccurate premises does more harm than good. But Morgan and Guthrie’s book – despite some inaccuracies, for example in its account of the nature of the Treaty relationship – makes a good faith attempt to engage with Treaty and Māori issues, is mostly accurate, and is likely to kick-start debate in a productive manner, for example on the issue of how the Treaty might be a vehicle for constitutional values, an issue I have begun to examine in the preceding analysis. We can only now encourage more voices to enter the debate, including a greater number of Māori voices, as we move beyond historical Treaty settlements and into an era where the Treaty may well assume increasing constitutional significance.
Gareth Morgan and Susan Guthrie wrote an article in response to this review. In that article they explain why they contend that New Zealand needs to move beyond a legalistic approach to applying the Treaty of Waitangi. Read the article: Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand (2015) April Māori LR.
Max Harris provided his brief response to the main points advanced by Morgan and Guthrie here. See Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie (2015) April Māori LR.]]>
Gareth Morgan and Susan Guthrie have written an article for the Māori Law Review in response to that review. They explain why they contend that New Zealand needs to move beyond a legalistic approach to applying the Treaty of Waitangi.
It has become commonplace for the legal fraternity to dominate discussions about how the Treaty of Waitangi should be applied in New Zealand. In 1975 the government of the day decided to create an arms-length court-like institution – the Waitangi Tribunal – to hear Māori contemporary grievances (in 1985 the Tribunal’s mandate was extended to historical grievances). That decision gave the legal fraternity an important role in applying the Treaty in contemporary New Zealand. The chair of the Tribunal has to be an experienced barrister and solicitor and judges of the Māori Land Court, while not members of the Tribunal, may also be appointed to preside over an inquiry. Lawyers are inevitably used to present and argue against claims, and the settlements that are agreed with the tribes are enshrined in legislation, the drafting of which again requires legal expertise.
So it is easy to see why many in the legal profession see the Treaty as a legal issue and many legal academics see the Treaty solely through the lens of their profession. We recently wrote a book “Are we there yet? the future of the Treaty of Waitangi”. While about the Treaty, to see this book as being about law, however broadly construed, is a mistake. This book sits firmly within the far wider ambit of the social sciences and the Treaty is a legitimate subject within the social sciences tradition.
The social sciences include the academic disciplines of philosophy, political theory, economics, social psychology, sociology, and anthropology and many others. As a collective, the social science disciplines try to understand human social behaviour – how and why people organise themselves into a ‘society’, how people act collectively, what outcomes follow, what drives social change.
Laws that govern societies are a product of social organisation – the laws are made by social institutions and have force only so long as those institutions are accepted as being legitimate by the people who make up that society. Unarguably law is a part of social ‘science’ too, to the extent it grapples with the issue of how best to give force to collective will within specific institutional contexts. But legal processes and precedents are by no means the be-all and end of how societies organise themselves, the legal lens is a very limiting one.
Take the Treaty of Waitangi. The Treaty is only of day-to-day relevance to lawyers because reference to it is made in the legislation passed by the social institution known as Parliament. The reference to the Treaty could be removed at any point, by a simple majority in Parliament When it comes to the Treaty the real power lies with the public who vote for and are represented by Parliament. So the bigger issue becomes why does New Zealand society choose to include the Treaty in its public life – as reflected in the existence of the Tribunal and the Treaty references in legislation? Is that the right thing to do? What are the consequences of that decision, and what might change in the future?
To answer these questions it is necessary first to have a basic theoretical understanding of social organisation and collective life. In order to understand and assess the way the Treaty is being applied in New Zealand it is necessary to have a view on the most fundamental issues: what does a good society look like, how can diversity to be understood and accommodated in public life, and what does the evidence suggest we should do? These are fundamental questions facing any society and it is not possible to sensibly critique the application of the Treaty in New Zealand without first having an understanding of them.
How can the general public make sense of how the Treaty has been applied in New Zealand if they have not first been given a framework for understanding their society in the first place?
The approach of setting the Treaty within a broad social context is consistent with how many of the New Zealand public understand the Treaty. Among many Māori and interested Pākehā the Treaty is commonly accepted as having created a “partnership”, it acts as a guide to how Māori and Pākehā should behave towards one another. In other words, to many of the New Zealand public, it provides the basis for their society in the broadest sense. It is totally appropriate that they be given the tools to understand their society before then grappling with how the Treaty is being applied within it.
In “Are we there yet? the future of the Treaty of Waitangi” we began the substantive arguments in the book with the question “what constitutes a good society?” This is the obvious starting point – providing a benchmark for all the decisions made by a society (including those relating to the Treaty). The decisions we made at this beginning point are crucial for understanding the rest of the book.
This issue of what constitutes a good society is one contested by both legal theorists and philosophers. Often the word ‘just’ is used in place of ‘good’ so the question legal theorists and philosophers attempt to address is typically “what is a just society?” (instead of “a good society” but the idea is the same).
The respective disciplines each deal with the issue in their own way but there is some cross-over. In philosophy the field was dominated by John Rawls for decades and his ideas seemed to resonate with legal theorists. Rawls was of the view that a society was just if its institutions (which include laws) met a strictly defined concept of fairness (in a nutshell, would they be supported by a public who were unaware of the place they would occupy in society). We did not do a lengthy review of legal theorists’ ideas about justice but those theorists we looked at did refer to the ideas of Rawls.
In contrast, we opted to adopt the views about what makes a ‘good’ society put forward by Nobel prize winning philosopher and economist Amartya Sen (for example in “The idea of justice”). Sen is of the view that it is not enough to have well-designed institutions. At the end of the day the opportunities facing people and their capacity to exercise choice are what matter. It is on that basis – the opportunity and choice provided to its people – that we are to judge a society. Institutions are just only to the extent they increase opportunities and facilitate choice.
It is no accident that we chose Sen – we are both economists and have admired his work for decades. And we are not the only ones. Sen’s ideas underpin the social and economic development agenda of the United Nations. In other words, when it comes to the real world where societies – including post-conflict ones – have to make substantive decisions about institutions and laws, the world looks to Sen. We make no apologies for doing the same.
The implications of adopting Sen’s concept of justice are too many to adequately summarise here. Suffice it to say that it follows that if the goal is to deliver a more just society one should look at what people themselves say matters to them (covered in Chapters 2 to 4 of our book); one should be aware of the outcomes people are experiencing (Chapters 10 and 11); and one should be aware of arrangements that could deliver greater choice (Chapters 5 and 6). Once readers have this knowledge they are in a position to decide whether the decisions being made in the name of the Treaty are likely to lead to a more just society.
One of the conclusions we came to is that the tradition in New Zealand of interpreting the Treaty more or less entirely through a legal lens, while necessary and extremely helpful in the past, is becoming increasingly problematic. Grievances over Māori property rights not being respected have dominated Treaty settlements in the past. These issues lent themselves very easily to a legalistic treatment. But the era of ‘easy wins’ is now over.
Now the country faces the more challenging issue of Māori claims that the Treaty of Waitangi and its principles requires the sharing of public power and authority over public resources (the ‘consultation’ and ‘development’ agendas). These issues lie at the very core of any society. They amount to deciding whether or not a society should be ‘democratic’ and on what basis people should have access to public resources. The issues the country faces are analogous to deciding what should count in forming the ‘public will’ and what institutions should give effect to it. It is not the sort of thing lawyers can answer – their authority and legitimacy depends on there first being a consensus about the public will and what institutions should give effect to it. The role of lawyers in the Treaty space is totally conditional.
How to respond to the consultation and development aspirations of Māori can only ever be a decision made by New Zealand society as a whole. The process that will lead to it can only ever be public debate and consensus-formation. The legal fraternity, on these issues of consultation and development, can only credibly sit by and wait for the public to decide.
A related conclusion we came to was that the New Zealand public would do well to look at the international literature on constitutional design – not confine itself to the narrow legalistic interpretation of the Treaty which has emerged over past decades in New Zealand. We do not say that the Treaty is irrelevant for New Zealand’s constitutional debates – far from it – we say New Zealand must not be bound by legalistic interpretations of it and blind to other knowledge that could usefully be applied when designing a constitution.
We had two goals in publishing “Are we there yet? the future of the Treaty of Waitangi” One was to stimulate debate as New Zealand heads into tricky territory, namely having to grapple with Māori aspirations relating to the sharing of power and public resources. Our second goal was to provide the public with a common framework from which to assess the options available to them.
We accepted that by framing the issues within the social science tradition – not as legal issues - we were challenging ‘business as usual’ in New Zealand and, in particular, throwing down a gauntlet to the legal profession. So we expected and welcome criticism from that quarter. However we do expect our views to be accurately reported before then being critiqued. Unfortunately in several areas Max Harris’ review of "Are we there yet?” doesn’t accurately report our views or indeed, the content of the book we have written.
It is not true, for example, that we fail to consider many competing ideas about political equality. In Chapter 5 we discuss at length current international thinking about democracy and equality, we describe the debate within political science over the merits of granting group rights and look at the pros and cons presented by both sides. So the claim from Harris that:
There is much political philosophy work showing that equality does not involve treating people the same, and may involve encouraging and supporting difference; Morgan and Guthrie do not consider this view of political equality…
has no basis in fact. We table at length the competing ideas in this area, including but not limited to those of Will Kymlicka who Harris refers to. We look at the pros and cons of each side in the group rights debate. Moreover we point out the one thing that all political theorists agree on – irrespective of their views on group rights per se – namely, that defining protected groups on the basis of descent (as New Zealand does currently) is a grave mistake. So not only do we consider all points of view, we accurately report a consensus view on an issue of direct relevance to New Zealand. We are left thinking that Mr Harris did no more than skim read the book.
Harris also misrepresents us by claiming we believe Article 2 of the Treaty of Waitangi is limited to natural resources and cultural treasures.
Morgan and Guthrie’s view [is] that the Treaty only entitles Māori to authority over natural resources and cultural treasures…
Here he makes a fundamental mistake. He does not take our suggestions as to how best to progress Māori aspirations, suggestions based on pragmatism, at face value but mistakes them for a particular view on the meaning of the Treaty’s Article 2.
Our view is actually this: “at a minimum Article 2 relates to natural resources and cultural treasures and what more it means is a hotly contested topic.” We make suggestions as to how this hotly contested topic – which amounts to aspirations for Māori to have unique political rights – could be usefully debated by the public.
Our view is that Māori aspirations to power sharing must be debated, it’s important, but using the Treaty to progress that debate faces an uphill battle because of the presence of Article 3. Far better in our view to have the debate using a broader framework based on international political thought.
Harris’ mistake, confusing our suggestions on how to move forward as a particular interpretation of Article 2, reflects precisely the weakness inherent in the ‘business as usual”, legalistic, approach to applying the Treaty. Under the legalistic approach progress is only achieved when, indeed if, endless debate about the meaning of the words used in the Treaty leads to consensus. Pragmatism and reasonableness applied to a debate about group rights could, on the other hand, first of all get us to a consensus about Māori aspirations and, secondly get us there quickly. Harris has fallen into the legal trap of requiring a ‘point of view’ from us on Article 2, and then critiquing it. He has to infer ‘a view’, he is simply cannot conceive debating our recommendations without first assessing ‘where we stand’ on Article 2. We find this disappointingly simplistic.
This misrepresentation of our point of view is so important that we quote directly at length from Chapter 7 and the Introduction:
Article 2 in the Maori-language version reserved for the chiefs their chiefly authority (‘te tino rangatiratanga’) over their land and ‘taonga’ (treasured things) unless they chose to sell (and they could only sell to the Crown). The English version promised undisturbed ownership (‘possession’) and specified more resources than land (it included fisheries and forests and other ‘property’). So far, so good.
However, with its references to ‘chiefly authority’ and ‘treasured things’, rather than ‘possession’ and ‘property’, the Maori-language Treaty had a subtly different meaning to the English version of the Treaty. This introduced two areas of contention. Was the Treaty protecting the chiefly authority that remained after forfeiting control over internal and external security, or was it just protecting the chiefly authority that was exercised in the economic sphere (the normal private right Westerners exercise over any property they own)? And was it just physical property that was covered or all sorts of other treasures too?
You wouldn’t think it would matter too much. But over time two things happened. Maori lost vast tracts of land and other resources, and the role of the Crown expanded into areas of life unimaginable in 1840. So, whereas once the chiefs might have expected to have authority over the economic production in their hapu, losing land and other resources meant they lost that control. As the role of the Crown expanded into areas like education, health and social security, a main function of the hapu – to teach, care for and employ its members – came head to head with government programmes. In time the chiefs lost effective authority over that too. And as Maori opted to migrate to the cities in large numbers after World War 2, this loss of chiefly authority over the day–to-day life of hapu members escalated.
Maori grievances since the 19th century have typically been expressed with reference to Article 2….However, things get problematic when the claim is made that Article 2 applies in areas unrelated to natural resources and taonga. Then there is potentially an inherent dilemma between Articles 2 and 3….
One way to resolve this conflict is to isolate areas of public policy that can be confidently said to only affect Maori, and give authority over these to Maori.[i] But in 21st century New Zealand what, beyond those relating to resources with a Maori interest and cultural treasures, would those decisions be?
Other countries have got around this inherent conflict between group rights (as expressed in Article 2) and individual rights (as expressed in Article 3) by demarcating physical areas as indigenous self-determining territories and allowing indigenous people to live and govern themselves there. However, in New Zealand the Maori population is not as geographically concentrated so we can’t directly uplift this model to New Zealand.” (Chpt 7)
Maori aspirations to have more autonomy, more power and more assistance must be taken seriously and debated on their merits. However, it is foolhardy to try to progress these aspirations using the Treaty and ignoring the international literature on constitutional design… An endless and ultimately unresolved dispute lies ahead of us if Maori continue along this course. It would be far better for Maori to table their political grievances directly – as aspirations for autonomy, power and economic assistance – and debate each aspiration on its merits. (Introduction)
How on earth Harris can conclude we didn’t address tino rangatiratanga in the book defeats us. There are other factual errors in Harris’ review too. For example, he claims we
also err in asserting that it is “simply a matter of political convenience” that Treaty settlements are negotiated with iwi. Morgan and Guthrie are here not giving sufficient weight to the text and context of the Treaty, and the fact that the Treaty refers to chiefs and tribes.
Harris needs to learn his history. In fact the operative social unit in 1840 when the Treaty was signed was the smaller social group known as hapu. Hapu were led by rangatira or chiefs and it was hapu chiefs who signed the Treaty. Iwi simply didn’t exist as an operative social group at the time. It was impractical in the 1980s onwards for any government to settle with each and every hapu (they were too numerous) so the decision was made to group claimants according to common ancestry (not social relevance) and thus iwi gained their prominent status as tribal claimants. Settlement with iwi was absolutely and utterly a matter of political convenience, a fact that Māori do not dispute.
We welcome public debate about the Treaty and its role in contemporary New Zealand. However for that debate to be useful it is important that different points of view be fairly represented.
Max Harris has provided his brief response to the main points advanced by Morgan and Guthrie here. See Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie.
[i] The historical potential for Maori to be self-governing was explored extensively in the Waitangi Tribunal report on the Combined Central North Island Regional claim: Report Summary https://forms.justice.govt.nz/search/WT/reports/reportSummary.html?reportId=wt_DOC_68569572 [Accessed January 2014].]]>
Here, Max Harris provides his brief response to the main points advanced by Morgan and Guthrie.
It is helpful and illuminating to have Gareth Morgan and Susan Guthrie’s further contribution in the Māori Law Review to the debate about the future of the Treaty of Waitangi in New Zealand. I do not intend to write a lengthy response to the points they make about my review of their book, for three reasons.
Morgan and Guthrie claim that I have fallen into a “legal trap” of wanting to know “where [Morgan and Guthrie] stand” on the meaning of Article 2 of the Treaty of Waitangi, without debating their recommendations. They say that this “reflects precisely the weakness inherent in the ‘business as usual’, legalistic approach to applying the Treaty”. They also make the point earlier in their article that it is a mistake to see the Treaty only “as being about law, however broadly construed”: “the Treaty”, they write, “is a legitimate subject within the social sciences tradition”.
I entirely agree with Morgan and Guthrie that the Treaty is not only about law, nor only for lawyers; it is a constitutional document that is relevant to politics, culture, and other fields of New Zealand life. This is an important point, and Morgan and Guthrie make some useful comments about why political philosophy and other disciplines are relevant to the Treaty, as I noted in Part Three of my review. (I did not spend more time discussing these matters in the review because I felt, perhaps wrongly, that Māori Law Review readers would be most interested in the implications of the book for law, construed very broadly.)
What I am less sure about is whether I have fallen into a particular “legal trap”. I agree with Morgan and Guthrie that there is some core meaning of Article 2 of the Treaty, and that there must be public debate about how that core meaning is applied. The real fault-line between us is, I think, in the views we have about what that core meaning is. For Morgan and Guthrie, as they say in their article, “at a minimum Article 2 relates to natural resources and cultural treasures and what more it means is a hotly contested topic”. For myself, I think drawing a ring around natural resources and cultural treasures is arbitrary and unprincipled, and I prefer to take an approach to Article 2 that puts ‘te tino rangatiratanga’ at its centre.
It would be interesting to hear further Māori perspectives on this issue, since this debate is far from an academic or legalistic one for Māori in particular – and affects how we should judge what amounts to past and future violations of the Treaty.
Morgan and Guthrie say, second, that I have misrepresented their arguments or misunderstood history. They say that I am wrong to claim that they did not consider notions of political equality that understand equality as involving encouraging and supporting difference.
I maintain my preliminary view (which others may disagree with) that they pay insufficient attention to these more complex definitions of equality. Whilst Morgan and Guthrie do quote Will Kymlicka on group rights, for example, they do not examine his broader work on equality. I think this leads Morgan and Guthrie to being too abrupt in assuming a conflict between Article 3 and Māori claims for power-sharing based on Article 2. In their review, they say, for example, “Māori aspirations to power sharing must be debated … but using the Treaty to progress that debate faces an uphill battle because of the presence of Article 3.”
To put my position simply: I do not think the use of the Treaty to progress that debate “faces an uphill battle”, because I believe a more nuanced understanding of equality (in Article 3) might see power-sharing (via Article 2) as entirely consistent with the achievement of equality.
Finally, Morgan and Guthrie say (a little sharply, perhaps!) that I “need to learn [my] history”, and that iwi “simply didn’t exist as an operative social group at the time”, meaning that it is “simply a matter of political convenience” that Treaty settlements are negotiated with iwi today.
I do not think the historical position is as black-and-white as Morgan and Guthrie suggest (my understanding is that iwi began to assume increased importance over the course of the nineteenth century), but I am happy to stand corrected. My point, which I could have made more clearly, was merely that it was not inconsistent with the Treaty’s emphasis on rangatira in Article 2 for settlements to occur with iwi today. To say that these settlements are just a matter of “political convenience” seemed, and still seems, to me to be too strong a claim.
This back-and-forth has been useful, I think, in allowing Morgan and Guthrie – and myself – to clarify and sharpen our arguments. My hope is that such arguments can now spur further debate on the Treaty of Waitangi, the New Zealand constitution, and New Zealand society today and in the future.]]>
Arbitration - special leave to appeal Whakarewarewa dispute - Ngāti Hurungaterangi v Ngāti Wāhiao  NZCA 592
Strike-out application – Mixed Ownership Model companies – sale of private land - Chetham v Mighty River Power Ltd  NZHC 3202
Injunctions - interim injunction granted - Hill v Smith - Motatau 2 Section 21B1B1 and Motatau 2 Section 21B1B2 (2015) 99 Taitokerau MB 98
Chief Judge's powers - application to amend Taukihepa order refused - Wright v Ngamoki-Cameron - Aperahama Hutoitoi (2015) Chief Judge's MB 108
Determination as to whether land is held in a fiduciary capacity declined - Reweti v Tautari - Lot 1 Depositied Plan 150873 and lot 2 Deposited Plan 150873 being part Waikoukou No 406 (2015) 96 Taitokerau MB 231
Status of land - change from Māori freehold land to general land - Swanson - Waotu South C No 6B (2014) 110 Waiariki MB 187
Trusts - appointment of advisory trustees declined for Māori reservation land - Todd - Mahinepua B1 (2015) 98 Taitokerau MB 257
Trusts - court appointment of trustee and ownership of a building on trust land - Gray - Mohaka A4 Trust Māori Land Court (2014) 36 Takitimu MB 254
Trusts - establishment of an ahu whenua trust over 10 Okahu land blocks - Far North District Council - Okahu 2B2B2 (2015) 97 Taitokerau MB 234
Trusts - ahu whenua trust approved - Napia - Waihou A No 2A No1 (2015) 97 Taitokerau MB 212
Trusts - termination of whānau trust - Millanta v Millanta-Lowrey - Ngaki Tukaki Millanta Whānau Trust (2015) 333 Aotea MB 38
Succession - amendment to order declined - Smallman - Te Rangi Kaiamokura (2015) 2015 Chief Judge's MB 188 (2015 CJ 188)
Procedure - without notice application to seal part of an order under appeal - Barnes v Adlam - Matata Parish 39A 2A Ahu Whenua Trust (2015) 112 Waiariki MB 296
Māori interests in natural resource management - 2014 in review by Thaddeus Ryan and Annie O'Conner
Review of Te Ture Whenua Māori Act 1993 – advisory group appointed
Download the Māori Law Review March 2015 (638 KB PDF).]]>
As in previous years, in 2014 the Courts made a number of decisions concerning the recognition of Māori interests under the Resource Management Act 1991 ("RMA") and in related processes.
This article summarises key court decisions from 2014 (and the start of 2015), considers some novel features of Treaty settlement legislation that are of interest in terms of the management of natural resources, and sets out ongoing topics likely to be considered through 2015 and into 2016.
The treatment by the Courts of evidence and evidential thresholds in respect of the relationship of Māori with land and the existence and location of wāhi tapu continues to be a key theme.
Pirirakau Inc Society v Bay of Plenty Regional Council (appeal against Heybridge Developments)  NZHC 2544
Download Pirirakau Inc Society v Bay of Plenty Regional Council  NZHC 2544 here.
Our review of 2013 case law considered the Environment Court's decision in Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269. (See (2014) March Māori LR.)
A 2007 Bay of Plenty Regional Council decision declined consent to subdivide Heybridge's 44-hectare site for reasons including that earthworks would adversely affect the relationship of Pirirakau (a hapū of Ngāti Ranginui) with Tahataharoa (a wider area of ancestral land which includes the site believed by Pirirakau to be the burial place of Tutereinga, their eponymous ancestor). That decision had been appealed first to the Environment Court, and then to the High Court, which had in turn remitted the case back to the Environment Court for further consideration.
Section 6(e) of the RMA requires decision-makers to recognise and provide for "the relationship of Māori and their culture and traditions with their ancestral lands, water sites, wāhi tapu and other taonga" as a matter of national importance.
The appeals concerned the evidential threshold that Pirirakau needed to pass in order to demonstrate that it had a relationship with Tahataharoa that triggered section 6(e), thereby requiring the Court to recognise and provide for that relationship in its decision on the resource consent applications.
In Heybridge, the Environment Court had concluded that there is "no authority for the blanket proposition that a relationship under s6(e) could not be based on an honest belief" and that there was sufficient evidence based on Pirirakau's honest belief and oral traditions to establish a relationship with the site in terms of section 6(e).
However, based on a statement for Pirirakau at the 2013 hearing that the burial site could be anywhere within the wider Tahataharoa area, a majority of the members of the Environment Court held that the development could proceed, as there was a sufficiently low probability of the burial site being disturbed.
The decision to grant consent was subsequently appealed to the High Court. The appeal turned on the treatment of the 2013 statement for Pirirakau and its influence on the Environment Court's decision to grant consent. In allowing the appeal and refusing consent, the High Court found that:
Whether the subsequent Environment Court decision (which is yet to be made) will be the last in this long chain of cases remains to be seen.
Hamilton (for Te Uri Karaka Hapu) v Far North District Council  NZEnvC 12
Download Hamilton (for Te Uri Karaka Hapu) v Far North District Council  NZEnvC 12 here.
In contrast to the Court's treatment of evidence in respect of the relationship of Māori with ancestral land in Heybridge and Pirirakau, in Hamilton the Court found that the evidence was not sufficient to determine the precise location of a wāhi tapu.
Mr Hamilton (on behalf of the hapū) appealed against resource consents granted for the construction of a single house on a sandspit and wetland near Russell. Mr Hamilton argued that the Opanui wāhi tapu (the existence of which was accepted by all sides) was located on or included the development site, and that the development would have unacceptable effects on the wāhi tapu.
A resource consent application could potentially be refused on the basis that it would have adverse effects on a wāhi tapu, particularly in light of section 6(e) of the RMA.
After considering the evidence presented, the Court concluded that it was not clear whether the Opanui wāhi tapu was located on the development site, or was instead located somewhere else nearby.
The Court reiterated that the general essential approach to making a finding of fact also applied in respect of determining the existence and location of a wāhi tapu. Applying the Environment Court decision in Winstone Aggregates and the 2011 High Court decision in Heybridge, the Court upheld the grant of resource consents on the basis that there was insufficient probative evidence to establish on the balance of probabilities that there was a wāhi tapu on the development site that would likely be adversely affected by the proposed development. The honest belief of Mr Hamilton as to the location of the wāhi tapu was not sufficient.
Te Tumu Landowners Group and Others v Tauranga City Council  NZEnvC 38
Download Te Tumu Landowners Group and Others v Tauranga City Council  NZEnvC 38 here.
In Te Tumu, the Court considered evidence in respect of the relationship of Māori with ancestral lands and wāhi tapu in the context of planning overlays. Planning overlays can in turn be an important factor in the consideration of applications for resource consent.
The Court was asked to determine whether an area of land at the mouth of the Kaituna River should have planning overlays as a Significant Māori Area ("SMA") and / or an Archaeological Management Area ("AMA"); and if so what the extent of the overlay(s) should be.
The issue turned largely on the location and extent of the Te Tumu Fighting Pa (1832 – 1836) which was of significance to Bay of Plenty Māori.
The Court was satisfied on the evidence as to the general location of the pā and its surrounding area. The Court was also satisfied that the area met both the SMA and AMA thresholds. In particular, the area remained relatively intact – it was not necessary that the area should be pristine or undeveloped. The site may have been subject to change, but remained significant to Bay of Plenty hapū and iwi, and was also of archaeological significance. There was no reason why an area could not be given both overlays.
As an "interim" step the Court concluded that the two overlays should cover the same area. Further studies in the context of potential development of the land could lead to the areas being refined in future.
The Court indicated that the inclusion of the area in reserves or parks would enable the Council to meet its obligations to Māori under Part 2 of the RMA (and in particular section 6(e)), but that this was a consideration for the Council.
The Court also held that it would not be appropriate for an SMA or AMA to be identified with a "dot" or star in the District Plan – unless the area was so small that it could not be spatially represented on the plan maps. SMAs and AMAs are intended to be "areas" and should be marked as such.
Mahanga E Tu Incorporated v Hawkes Bay Regional Council  NZEnvC 83
Download Mahanga E Tu Incorporated v Hawkes Bay Regional Council  NZEnvC 83 here.
This was an appeal against the granting of resource consent for a proposed residential subdivision at Mahanga Beach, based on the Council's alleged failure to give effect to part 2 of the RMA (including section 6(e)).
Mahanga E Tu argued that the development impinged upon Māori cultural values. This was based on concerns regarding the effect of the proposed earthworks on a stream that runs through the subject site; the effect on the nearby Pāpaka urupā, and the fact that the site was historically occupied by Māori.
The Court found that, as there were no works proposed actually in the bed of, or within the banks of the stream, there was no need to resolve the issue of significance of the stream to local Māori. The urupā was, however, an important consideration for the Court. Expert evidence was given suggesting that the urupā may have extended into the legal boundaries of the subject site, but there was no consensus on this point and the exact location could not be confirmed.
Regardless of the location of the urupā, the Court noted that the subject site had clearly been historically occupied by Māori, and as a result Ngāi Tū had an ancestral relationship and association with the subject site for the purposes of section 6(e).
In this case, though, the Court held that the conditions of consent imposing "accidental discovery" protocols in respect of wāhi tapu and archaeological remains were sufficient to address any potential adverse effects on the wāhi tapu and the relationship of Māori to the site, thereby satisfying the requirements of section 6(e) (and Part 2 of the RMA more broadly).
Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council and Takamore Trustees  NZCA 23
Download Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council and Takamore Trustees  NZCA 23 here.
In Waikanae Christian Holiday Park, the Court of Appeal dealt with wāhi tapu in a different context – the registration by the Māori Heritage Council of a wāhi tapu area under the New Zealand Historic Places Act 1993 ("HPA"). The registration of a wāhi tapu area can be a relevant factor in RMA decision-making and plan making processes. As discussed below, the HPA has now been replaced by the Heritage New Zealand Pouhere Taonga Act 2014.
The Māori Heritage Council had received an application from the Takamore Trustees to significantly extend an already registered wāhi tapu area. The Council determined that there was sufficient evidence to formally initiate a review of the wāhi tapu area's boundaries. The Holiday Park was subsequently notified of the application as landowners of the area affected and invited to make submissions on the application.
Having received written submissions on the application (including from the Holiday Park), and considering a further expert report it commissioned, and the report of Council staff, the Council resolved to grant the extension to the wāhi tapu area sought by the Trustees.
The Holiday Park sought judicial review of the Council's decision, arguing that the process it followed had been flawed. The High Court refused the application for judicial review. On appeal the Court of Appeal upheld the High Court's decision in all respects, and found that the process followed by the Council had been appropriate.
Of particular interest was the Court's finding that the effect of registration on the landowner and in particular on land value is not a relevant consideration for the Council when determining applications under the HPA. The Court referred to the HPA's "single focus … to promote the identification, protection and conservation of the historical and cultural heritage in New Zealand."
The HPA has now been replaced by the Heritage New Zealand Pouhere Taonga Act 2014. The 2014 Act largely follows the provisions of the 1993 Act in respect of wāhi tapu area applications, and continues the Council and its roles and functions.
However, the Council is now required to "recognise the interests of the owner of the land" when making decisions. It is yet to be seen how the Courts will interpret that requirement, but it does seem that the intention is that consequences of registration for a landowner – including land value - will now need to be part of the Council's overall decision-making balance.
KPF Investments Ltd v Marlborough District Council  NZEnvC 152
Download KPF Investments Ltd v Marlborough District Council  NZEnvC 152 here.
In KPF Investments, the Environment Court refused resource consents for a salmon farming operation in part because of cultural effects of concern to tangata whenua.
KPF applied for resource consent in order to convert a section of an existing mussel farm for the farming of salmon. The site in question is located at the entrance to Port Ligar in the Pelorus Sound. Ngāti Koata opposed the application.
The Court recognised the role of tangata whenua as kaitiaki, and took into account the concerns held by Ngāti Koata that the effect the proposed salmon farm would have on the sea floor would be culturally offensive and would harm the mauri of the water. When considered alongside the four previously approved New Zealand King Salmon salmon farms in the area, the Court found that the addition of a fifth farm would have grave adverse effects on the values and mana moana of Ngāti Koata.
This consideration, as well the likely adverse effects on the Area of Outstanding Landscape Value in which the site sits, led the Court to the conclusion that consent should be refused, including on the basis that it would not be in accordance with section 6(e) of the RMA.
In applying section 6(e), the Court set out that the pertinent question "is not whether the court considers the subject matter is offensive or objectionable but whether the tangata whenua claiming to be affected are being reasonable in the circumstances when they say a proposed activity is offensive to their values."
Whangaroa Maritime Recreational Park Steering Group v Northland Regional Council  NZEnvC 92
Download Whangaroa Maritime Recreational Park Steering Group v Northland Regional Council  NZEnvC 92 here.
In another marine farm consent application case, the Whangaroa Maritime Recreational Steering Group opposed the granting of consent on a number of grounds.
The Court found that the potential positive effects on employment and economy in the area were significant considerations. This was particularly so in light of Northland's employment rate, which is currently the lowest in New Zealand. The Court's decision highlighted the agreement between the applicant and the Ririwha Ahu Whenua Trust (which administers Stephenson Island on behalf of approximately 500 beneficial owners) to operate the marine farm as a 50/50 joint venture. The Court accepted the Trust's evidence that it would benefit from the proposal by gaining specialised knowledge in marine farming and by providing the Trust the financial support necessary to carry out the ecological restoration projects required of it as kaitiaki of the Island.
The Court also considered the relevant plan provisions, finding that the proposal was consistent with policies that required recognition of the role of tangata whenua as kaitiaki, incorporation of mātauranga Māori into decision-making on resource consent applications and the avoidance of adverse effects on cultural heritage and sites of special significance to Māori. The Court concluded that, overall, any negative effects were not significant enough to justify refusal of consent when weighed against the benefit the proposal would bring to the Northland community.
Ngāti Mākino Heritage Trust v Bay of Plenty Regional Council  NZEnvC 25
Download Ngāti Mākino Heritage Trust v Bay of Plenty Regional Council  NZEnvC 25 here.
This decision related to several outstanding concerns of Ngāti Mākino regarding the freshwater provisions of the proposed Bay of Plenty Regional Policy Statement ("RPS"). The Environment Court summarised the outstanding concerns at issue in this case as "the desire for the RPS to more precisely articulate the recognition of Māori values and participation in providing directions for the management of fresh water".
The Court found that the Waitahanui River is a taonga of Ngāti Mākino and that particular sensitivity must be had to this relationship in preparing documents which affect the river. However, the Court noted that the question of what the most appropriate mechanisms are to recognise Ngāti Mākino's relationship with the Waitahanui River should be addressed by the Regional Water Plan, rather than the RPS. In terms of the RPS, the Court stated that its role was to ensure that the RPS properly recognises the role of Māori in both the development of policy at the plan level and in water allocation. A number of amendments were made to the RPS by the Court to achieve these outcomes.
Ellis v Minister of Education  NZEnvC 109
Download Ellis v Minister of Education  NZEnvC 109 here.
This decision concerned an appeal against a decision to confirm a Notice of Requirement for a designation by the Minister of Education ("the Minister") to enable the construction of a kura kaupapa and a wharekura at Koatu Point on the Hokianga Harbour.
This was opposed by Ms Ellis, who argued (among other things) that there had been a lack of consultation by the Ministry, in breach of section 8 of the RMA, and that any consultation that did occur had not properly followed tikanga. Section 8 of the RMA sits within Part 2, and provides:
"In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)."
The Environment Court found that the Minister did not have a specific obligation to carry out consultation in regard to a Notice of Requirement. In any event, the Court considered that consultation had in fact occurred with what the Ministry called the "Kura Community", and that further consultation would have had little to no effect due to the intense nature of the opposition by a small section of the community.
Turning to Part 2 of the RMA, particularly section 8, the Court agreed with the Ministry's submission that the provision of education to students in te reo Māori would in fact serve the cultural well-being of the community and would be entirely consistent with the Crown's Treaty obligations. The Court found there could be no basis for cancelling the Notice of Requirement.
The Grace decisions
In 2014 the Māori Land Court and the Environment Court heard related cases dealing with the attempted acquisition by the NZ Transport Agency of land in Waikanae owned by the author Patricia Grace.
In Grace - Ngarara West A25B2A (2014) 317 Aotea MB 268 (317 AOT 268) the Māori Land Court considered Mrs Grace's application to have her land set aside as a Māori reservation for the benefit of the descendants of Wi Parata. Having considered the evidence, the Court recommended that the Chief Executive of Te Puni Kokiri set apart Mrs Grace's land as a Māori reservation as a place of cultural and historical significance and a wāhi tapu in accordance with tikanga Māori.
Shortly thereafter, the Environment Court in Grace v Minister for Land Information  NZEnvC 82 considered whether the land could be acquired under the Public Works Act 1981. If the Māori Land Court's recommendation that the land be set aside as a Māori reservation was implemented, that would of itself automatically prevent the acquisition of the land.
The Environment Court held that, in any event:
Both Grace decisions are considered in detail in the September 2014 issue of the Māori Law Review ((2014) September Māori LR).
As was noted in the December 2014 issue of the Māori Law Review ((2014) December Māori LR), there have been a number of significant Treaty settlement developments over the past year. Some examples of settlement legislation passed in 2014 that are of particular interest from a natural resource management perspective are set out below:
In September 2014 the Crown filed a report with the Waitangi Tribunal (in the context of the Tribunal's WAI 2358: National Freshwater and Geothermal Resources Inquiry) on the Crown’s Freshwater Reform Programme. The Report set out an overview of the Crown's future work programme in respect of its freshwater reforms. The Report noted that the Crown recognises that iwi/hapū have rights and interests in freshwater resources, and that developing options for Treaty-consistent frameworks to provide for the recognition of those rights and interests in water is a key focus for the Crown.
On 20 March 2015 the Crown filed a memorandum of counsel with the Tribunal following the meeting between Ministers and the Iwi Leaders Group at Waitangi on 5 February 2015. The memorandum records that in 2015 the Crown (working together with the Iwi Leaders Group) will focus on developing policy options for enhancing management within freshwater quantity and quality limits, including improving the regime for freshwater allocation and use. The memorandum indicates that policy options would be released for consultation in February 2016.
In January 2015, the Minister for the Environment Hon. Nick Smith outlined a reform agenda for the RMA. Though still light on detail, indications are that the reforms will be broad-ranging. Of particular interest to Māori will be any amendments to Part 2 of the RMA, which sets out the purpose and principles of the Act and includes specific provisions relating to Māori.
Regional Councils will be busy implementing the National Policy Statement for Freshwater Management 2014 which took effect in August 2014. Under the NPS, Regional Councils are required to develop freshwater objectives for all waterbodies in their region. The NPS also requires all local authorities to take reasonable steps to involve iwi and hapū in the management of fresh water, including in identifying tangata whenua values and interests in fresh water which are then to be reflected decision-making regarding fresh water.
See the March 2013 and March 2014 issues of the Māori Law Review for the 2012 and 2013 reviews of Māori interests in natural resource management ((2013) March Māori LR 9-13; (2014) March Māori LR).]]>
The Minister for Māori Development has appointed an advisory group to help to progress law reform of the governance and management of Māori land.
In March 2014 the panel of experts reviewing Te Ture Whenua Māori Act 1993 released its final report and recommendations.
The final report of the Panel confirmed its preliminary view, raised in its 2013 discussion document, that the Māori Land Court's current role in the management and utilisation of Māori land can be scaled back in favour of greater final decision-making by those with governance roles for Māori land. Mediation was recommended as a first step in addressing disputes.
The Government announced that it would prepare a bill to reform the governance and management of Māori land based on the Panel's findings.
See our earlier article summarising the Panel's final report and the 2014 announcement by Government about law reform (2014) April Māori LR.
In August 2014 Te Puni Kōkiri consulted on steps to develop a new bill to reform the law. A copy of the presentation used for that purpose is here.
The Minister's 2015 advisory group comprises:
Brief biographical profiles of the advisory group members are available here.
Terms of reference for the advisory group are available here.
The Minister's announcement reads:
Māori Development Minister, Hon Te Ururoa Flavell is pleased to announce the appointment of a Ministerial Advisory Group to progress the introduction of new Māori land legislation this year.
The Bill will replace Te Ture Whenua Māori Act 1993.
“I am committed to ensuring that the final details of this Bill are informed by the practical experience of people involved closely with Māori land matters and that Māori are engaged throughout the process,” says Mr Flavell.
More than 1.4 million hectares (around five percent of New Zealand’s land mass) is Māori-owned land. Around 80 percent of that land is considered under-utilised and the current legislation is regarded as a major barrier to its optimum use.
“Our intention is to empower Māori at the regional and national level to advance their aspirations and development of their land within a more supportive framework.”
The Ministerial Advisory Group appointments are Kingi Smiler (Chair), Matanuku Mahuika, Traci Houpapa, Spencer Webster, Linda Te Aho, Sacha McMeeking and Dr Tanira Kingi.
For information on the Advisory Group’s terms of reference and for profiles of its members, go to www.tpk.govt.nz/en/a-matou-kaupapa/crown-iwi-hapu-whanau-maori-relations/consultation/review-of-te-ture-whenua-maori-act-1993/
Mr Flavell expects the bill will also create a streamlined land administration system that puts the Māori landowner first.
“I am committed to ensuring that Crown agencies also support Māori land owners with better utilisation of their land. I plan to have discussions with Ministers about the most effective and efficient way to advance, and expand the services to Māori land owners,” says Mr Flavell.