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
Injunction – 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
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
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)
Withdrawal of an application to the Court - Dawson v Dawson - Orohaki 894B Ahu Whenua Trust (2015) 29 Te Waipounamu MB 161
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
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
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
Upcoming seminars include criminal justice, the State and Māori - delivered on 28 May by 2015 J.D. Stout Fellow Kim Workman]]>
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.
Equity and trusts - private law obligations not owed; standing to bring claims - Proprietors of Wakatū v Attorney-General  NZCA 628
Judicial Review – Appeal – registration of wāhi tapu – extension of boundary - Waikanae Christian Holiday Park Incorporated v New Zealand Historic Places Trust Maori Heritage Council  NZCA 23
Procedure - leave to appeal refused - Rangitukunoa v Koning  NZCA 24
Takutai moana - procedure - amended application - further notification - Re Tipene  NZHC 169
Status of land - change from general land to Māori freehold land - Owhetu Block Charitable Trust - Lot 1 Deposited Plan 427145 (2015) 98 Taitokerau MB 242
Ownership determination - rightful owner of transferred shares - Trustees of the Horina Nepia & Te Hiwi Piahana Whānau Trust v Ngāti Tukorehe Tribal Committee & Tahamatā Incorporation (2014)314 Aotea MB 159
Injunction - interim injunction preventing a grant of a lease declined - Paerau - Te Komiti 1B2B2 Ahu Whenua Trust (2015) 95 Taitokerau MB 280
Injunction – no equitable relief where applicant arbitrarily refused to engage in processes – Trustees of Maungatautari 4G Section IV Block v Maungatautari Ecological Island Trust - Maungatautari 4G Section IV Block (2014) 90 Waikato Maniapoto MB 291
Injunction – no evidence of actual or potential breach of trustee duties – Smith v The Māori Trustee - Waipaoa 5A2 Block (2014) 44 Tairāwhiti MB 104
Costs - award made for a reasonable contribution to the costs actually and reasonably incurred - Smith v The Proprietors of Mangaroa and other blocks (2015) 113 Waiariki MB 1
Trusts - approval of a majority of trustees granting a lease and a mortgage - Tane – Te Tii (Waitangi) B3 (2015) 95 Taitokerau MB 261
Professor Alan Dudley Ward - by Dr D M Loveridge
Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land - Anna Brenstrum
Download the Māori Law Review February 2015 (574 KB PDF).]]>
What follows is an outline of these contributions, not a comprehensive bibliography or an exhaustive appraisal of his work. The first will no doubt be compiled before long: the second will take much longer, as part of an ongoing evaluation of the Treaty settlement process and its outcomes.
Alan was born in Gisborne in 1935 and raised in Tūranga/Poverty Bay, where many of his family still reside. In the 1950s he began his academic career at the University of New Zealand in Wellington, and received and graduated Master of Arts with first-class honours from Victoria in 1958. His thesis was entitled “The History of the East Coast Maori Trust”. As a piece of research and analysis it still holds up well today. After several years in other pursuits, Alan moved on to the Australian National University, where in 1967 he completed a PhD on relationships between the Crown and Māori during the latter half of the 19th century. Entitled “Towards one New Zealand: the government and the Maori people, 1861–93”, his thesis is best known today as the study which was subsequently expanded in his landmark book A Show of Justice: Racial ‘Amalgamation’ in Nineteenth Century New Zealand (1974). A Show of Justice was described by the late Dame Judith Binney in her review for the New Zealand Journal of History as “undoubtedly the best book on nineteenth-century New Zealand racial policies” then available, consisting of “judicious and carefully documented evidence from which Alan Ward’s cogent and unequivocating conclusions derive”. The latter description can be applied to all of Alan’s historical output, and a good argument can be made that A Show of Justice is still the best single-volume work on the subject of race relations in NZ during the 19th century. It continues to occupy a prominent position on the bookshelves of all those interested in the subject, and is probably the historical source most often consulted by those working in the field of Treaty settlements. In all likelihood this book has been cited in every major report on historical claims issued by the Waitangi Tribunal – I can’t find one where it hasn’t.
On completion of his PhD Alan was appointed as a lecturer at La Trobe University in Melbourne, where he taught until 1987. During this period he expanded his fields of interest and expertise into the Pacific. As well as lecturing in history at the University of Papua New Guinea in 1971, from 1973 he acted as consultant to the Commission of Inquiry into Land Matters in Papua New Guinea. After research in New Caledonia in the late 1970s he became Director of Rural Lands in Vanuatu 1981-82 – an appointment which ended in an early resignation after forthright criticisms of government policy. From 1987 until his retirement in 1996 Alan Ward was a Professor of History at the University of Newcastle, subsequently becoming Professor Emeritus.
Although the Pacific beckoned, Alan maintained an ongoing interest in 19th century New Zealand history, and produced a number of insightful articles, beginning with contributions to the first two issues of the New Zealand Journal of History in 1967. His “Origins of the Anglo-Maori Wars. A Reconsideration” was particularly notable, as was his “Law and Law-enforcement on the New Zealand Frontier, 1840-1893”. Numerous other articles and reviews followed, such as his “Documenting Maori History: The Arrest of Te Kooti Rikirangi te Turuki, 1889”.
With the passage of the Treaty of Waitangi Amendment Act 1985, the Waitangi Tribunal moved into a new era of operations. The Crown’s actions and omissions in its dealings with Māori from 1840 onwards came under close scrutiny. Within two years the first large-scale historical inquiry was underway, with the Ngai Tahu claims in the South Island. Someone suffering from a severe case of common sense decided that Alan Ward should be closely involved in this process, and in July 1987 he signed the first of what would prove to be almost two decade’s worth of contracts with the Tribunal for the provision of historical advice and the preparation of historical evidence. For the Ngai Tahu inquiry his role was to review the historical evidence presented by the Crown and the claimants – as he described it,
[T]o study and comment on the evidence adduced as to its historical reliability and completeness, to draw attention to deficiencies and omissions, to draw attention to alternative interpretations, and to assist the Tribunal to summarise and evaluate the data.
This task required the assembly and supervision of sizeable team of historians to assist in the arduous exercise. His 1989 “Report on the Historical Evidence: The Ngai Tahu Claim” generated much debate and argument among the various historians involved, but also provided the Tribunal with an excellent foundation for their final report on the claim, which appeared in 1991. Many commentators consider this to have been one of the best historical reports produced by the Waitangi Tribunal, with the Hauraki report a close second. It is no coincidence that Alan played an important role in the production of the latter as well, in that case as one of the principal report writers.
In the aftermath of the Ngai Tahu inquiry, Alan produced the first of several incisive commentaries on the role of history and historians in the Treaty process, and on the process in general. His “History and Historians Before the Waitangi Tribunal: Some Reflections on the Ngai Tahu Claim” (1990) was later followed by “Historical Method and Waitangi Tribunal Claims” (1996). The article on “Maori Land Law and the Tribunal Claims Process” coauthored with Andrew Eruiti in 2001 demonstrated his continuing interest in the way in which historians approached ‘Tribunal history’.
Many observers in the early 1990s were quite appalled by the apparent magnitude of the gulf which lay between the Treaty claims pouring into the Tribunal and their settlement. How best to organise inquiries, hearings and evidence so as to expedite the process of researching and hearing claims was a burning issue. Alan played a central role in putting this process into a manageable (or, at least, more manageable) form. His first such foray was his involvement, from 1992, with the Crown/Congress Joint Working Party (CCJWP). One part of this experiment in cooperation between the Crown and the Māori Congress over railway land settlements was the production of historical reports on various areas. These largely relied on readily-accessible sources to outline the main issues which might need to be addressed for settlements. Alan once again assembled and supervised a team of historians, and also had a hand in writing the series of reports which they produced in 1992-1993, covering (among other places) Wellington, Whanganui, the Main Trunk Railway district, Central and South Auckland and the Ngāti Kahungunu rohe.
The next step was the Rangahaua Whānui project. The idea here, as with the CCJWP, was to expedite research into claims, but this was a much more ambitious exercise. Alan played a central role in its design, assisted by a mentor group of historians, and supervised its execution. During the mid-1990s a large number of overview reports were commissioned, within two series. The first were “national theme” reports, of which 15 were produced. These dealt with subjects arising in most inquiries, such as “surplus lands”, Crown pre-emption, reserves and Public Works takings. A number of additional reports on 20th century Māori land administration were later commissioned by the Crown Forestry Rental Trust (CFRT). The second series were outlines of the historical experience of Māori in 11 Districts in the North and South Islands, with an emphasis on the effect of various Crown policies and particularly on land alienation. Had the necessary time and resources been made available, a good deal more could usefully have been done, but Rangahaua Whānui was nonetheless a very successful and productive exercise in its own right, not least in the opportunities which it gave to the historians involved to exercise their skills in this new forum. Although the District reports have largely been superseded by the voluminous evidence produced for claims, and by the Tribunal’s subsequent reports, many of the National Theme reports are still standard sources for their subject areas.
The Rangahaua Whanui reports paved the way for Alan’s National Overview, which appeared in three volumes in 1997 after a year of concerted effort on his part. This was much more than a summary or condensation of the Rangahaua Whānui material. Additional research was carried out to bridge some of the remaining gaps, and Alan then carried out a critical examination of each national theme (Vol. 2), and an appraisal of the principal “Treaty issues arising” for each District (Vol. 2). On top of this he added a discussion of “Optional Strategies for Dealing with Historical Treaty Claims” (Vol.1).
The appearance of the National Overview coincided, and in large measure laid the groundwork for research for, the introduction of the “casebook method” by the Tribunal as its model for hearing claims. This involved (among other things) the production of all the principal customary and historical evidence for a specified district before formal hearings of claim began. The casebook model has been followed since the mid-1990s, and abetted by very large increases in the resources available, made possible the relatively rapid progress which has occurred in hearing and settling claims since that point. After completing the National Overview, Alan produced his Unsettled History: Treaty Claims in New Zealand Today (1999). This book is principally an overview of the National Overview, as far as the underlying research goes, but also offers a very readable look at the historical context of the Treaty claims process and its development to that point. In the same year, in the New Year Honours List, Alan received the New Zealand Order of Merit “For services to New Zealand History”. He also delivered the Waitangi Rua Rautau lecture at Parliament in February, on “A Social Democrat’s Perspective on the Treaty of Waitangi”, and in May “An Unsettled History” was the subject of the Stout Annual Lecture which he gave at Victoria University of Wellington.
To the surprise of many of his friends and colleagues, Alan was not appointed to the Waitangi Tribunal at this juncture. It is difficult to imagine a more appropriate person to hold such a position, and the rapid escalation in the number and pace of inquiries at the turn of the century surely meant that his unique expertise could have been put to very good use. During the following decade he remained involved with the Tribunal in various ways, assisting with the writing of various reports. He later provided the Office of Treaty Settlements with critical appraisals of draft Historical Accounts for a number of settlements. He also carried out a number of research commissions for the Tribunal, claimant groups and the Crown. These included a series of reports on Māori customary interests around Cook Strait, and one on “the pressures of modernity on customary land tenure” which drew on Alan’s knowledge of developments elsewhere in the Pacific. Later he prepared a brief of evidence on Crown and Māori understandings of the Declaration of Independence and the Treaty for Stage One of the Northland Inquiry, and another for the High Court in relation to the case of Proprietors of Wakatū Incorporation & Others v Attorney General. In addition to evidential material, Alan continued to produce scholarly articles such as a study of Crown-Kingitanga relations in the lead up to the Waikato War, and was heavily involved with the writing of the 19th century chapters of Tangata Whenua: An Illustrated History. The last appeared within weeks of this death.
Alan Ward played a central role in the development of the system for hearing and settling Treaty claims which has emerged over the last quarter-century. His contribution was also unique in many ways. None of the other historians involved has had a comparable influence on that process, and on the historians involved in it. One contribution which Alan will not be making, unfortunately, is one that I was very much looking forward to reading – his own appraisal, once all the large historical inquiries and the main Treaty settlements were completed, of how well the whole thing has worked, and what could have been done better. Part two of Unsettled Histories would undoubtedly have been a very interesting and illuminating read.
Dr. D.M. Loveridge
Historical Consultant, Wellington
 As reflected in Michael Macky’s report “Trust Company Management by Wi Pere and William Rees” (2002, Wai 814 #F11).
 Review of “A Show of Justice” by Judith Binney, in NZJH 9#2 (1975) pp. 194-197.
 For an insightful summary of his early career see Peter Hempenstall, “Tasman Epiphanies: The ‘Participant History’ of Alan Ward” (Journal of New Zealand Studies 4/5 2006 pp. 65-80).
 “Unpublished Parliamentary Papers: A Comment on Untapped Source Material on New Zealand History” (New Zealand Journal of History 1#1 April 1967, pp. 93-94 Notes), and “The Origins of the Anglo-Maori Wars. A Reconsideration” (New Zealand Journal of History 1#2 1967, pp.148-170).
 New Zealand Journal of History 5#2 (1971), pp.128-149.
 New Zealand Journal of History 14 #1 (1980), pp.25-44.
 As he describes it in “A Report on the Historical Evidence: The Ngai Tahu Claim” (1989, Wai 27 #T1 p. 1).
 The Ngai Tahu Report (1991, Wai 27).
 The Hauraki Report (2006, Wai 686).
 New Zealand Journal of History, 24#2 (1990) pp.150-67.
 Alan Ward, ʻHistorical Method and Waitangi Tribunal Claimsʼ, in Miles Fairburn and W.H. Oliver, eds, The Certainty of Doubt: Tributes to Peter Munz, Wellington, 1996.
 On which see Alan Ward, “Interpreting the Treaty of Waitangi: The Maori Resurgenceʼ, The Contemporary Pacific, 3, 1 (Spring 1991), pp.85-114.
 I have never seen a comprehensive bibliography of the CCJWP’s reports, but many of them were subsequently submitted to various Tribunal inquiries e.g. Alan Ward, Robyn Anderson, Suzanne Cross, Michael Harman. “CCJWP Report on Whanganui Land; research report commissioned by the Crown/Congress Joint Working Party, 1993” (Wai 145 #A44 Wellington Tenths Inquiry).
 See http://www.justice.govt.nz/tribunals/waitangi-tribunal/publications/rangahaua-whanui-national-theme-reports. Three more such reports on Māori land administration in the twentieth century were produced in a supplementary project funded by CFRT.
 See D.M. Loveridge, intro., Twentieth Century Māori Land Administration Research Programme (Wellington: CFRT, 1998).
 See http://www.justice.govt.nz/tribunals/waitangi-tribunal/publications/rangahaua-whanui-district-reports. Fourteen reports were published, but two reports were written for three of the districts (Auckland, Rohe Potae and Northern South Island).
 Alan noted in his National Overview introduction Vol. 1 p. XVI that “Because of staff and funding limitations at the time the project was launched, wholly new reports were not commissioned on raupatu, the Native Land Court in the nineteenth century, and native committees, given the amount of research already available or emerging from claims research, or in view of work being done in other agencies”.
 Wellington, GP Publications, 1997 (3 Vols).
 For an short overview of the overview, see Alan’s 1999 Stout Annual Lecture (Victoria University of Wellington, 24 May 1999 “An Unsettled History”), which was published in New Zealand Studies, 9#2 (1999), pp. 30-37 http://ojs.victoria.ac.nz/jnzs/article/view/322/246.
 “Maori Customary Interests in the Port Nicholson District, 1820s to 1840s: An Overview” (research report commissioned by the Waitangi Tribunal, 1998; Wai 145 #M1 Wellington Tenths Inquiry); “Te Atiawa in Te Tau Ihu” (research report commissioned by CFRT on behalf of claimants 2000; Wai 785 #D4 Northern South Island Inquiry); and “Brief of Evidence of Professor Alan Ward”; (research report commissioned by Te Rununga o Ngati Toa Rangatira in association with CFRT 2003; Wai 785 #P9 Northern South Island Inquiry).
 “Ngati Pikiao Lands: Loss of Tribal Ownership and Control” (research report commissioned by Waitangi Tribunal 2001 Wai 1200 #A9 CNI Inquiry).
 “Brief of Evidence of Professor Alan Ward”; Report on Crown and Maori Understandings of He Whakaputanga (The Declaration of Independence) and Te Tiriti, commissioned by the Crown Law Office, (2009 Wai 1040 #A19 Northland Inquiry Stage 1).
 “‘A Savage War of Peace’?: Motives for Government Policies Towards the Kingitanga, 1857-1863”,pp. 67-109 in Richard Boast and R.S. Hill, eds., Raupatu: The Confiscation of Maori Land (Wellington: Victoria UP, 2009).
 Atholl Anderson, Judith Binney and Aroha Harris (Wellington: Bridget Williams Books, 2014).]]>
Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land
The Māori Law Review is pleased to publish Anna Brenstrum's prize winning essay on the dispute between Patricia Grace and the New Zealand Transport Agency (NZTA) over the compulsory acquisition of her ancestral land.
We are very pleased to publish in this edition of the Māori Law Review the winning entry from the 2014 Sir Edward Taihakurei Durie Student Essay Competition. The competition is held annually and sponsored by the Māori Law Review. It asks students to write on an important legal development from the previous year affecting Māori and is judged by a panel of the Māori Law Review’s consulting editors. This is the third year that the competition has been run and the standard of entries remains high.
The winning entry for 2014 is entitled ‘Not giving ground: Patricia Grace’s successful opposition to compulsory acquisition of her ancestral land’ and was written by Anna Brenstrum.
Ms Brenstrum is an undergraduate student at the University of Otago. She is currently in her fourth year of study towards a Bachelor of Laws with Honours and a Bachelor of Arts majoring in History. Anna’s interest in Māori legal issues was spurred by a Māori Land Law course taught by Associate Professor Jacinta Ruru. An essay on the land disputes between Patricia Grace and the New Zealand Transport Agency that Ms Brenstrum wrote for that course provided the basis for the essay she entered in the competition.
Ms Brenstrum’s essay addresses the application of public works legislation in the context of two cases that dealt with the issues relating to Ms Grace’s land in parallel proceedings: Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268 in the Māori Land Court; and Grace v Minister of Land Information  NZEnvC 82 in the Environment Court. As discussed in Ms Brenstrum’s essay, these cases are significant because they show the relationship between Te Ture Whenua Māori Act 1993 and the Public Works Act 1981 and also reinforces the importance of the retention of land as a fundamental principle of Te Ture Whenua Māori Act 1993.
Last year, the dispute between Patricia Grace and the New Zealand Transport Agency (NZTA) over the compulsory acquisition of her ancestral land on the Kapiti Coast captured the attention of legal experts and the public alike.
In March 2014 the Māori Land Court recommended that a Māori reservation be created over Grace’s Māori freehold land despite opposition to the application from the NZTA. In April 2014, the Environment Court made an order in favour of Grace stating that the acquisition of her land by the NZTA for the construction of the Mackays to Peka Peka expressway would not be “fair, sound and reasonably necessary” as required by the Public Works Act 1981.
These two cases represent an important development in the law relating to Māori freehold land because they demonstrate the importance of one of the primary principles in Te Ture Whenua Māori Act 1993 (Māori Land Act 1993) (TTWMA) – retention of land – being given effect to within a contentious situation where the land was arguably required for a road of national significance. The cases are also interesting for showing the interplay between TTWMA and the Public Works Act and for highlighting a need for a reform of the Public Works Act to better protect the retention of Māori freehold land.
In Grace v NZTA, Chief Judge Isaac in the Māori Land Court made a recommendation to the Chief Executive of Te Puni Kōkiri to award Ms Grace’s land the status of Māori reservation under s 338 of the TTWMA. A Gazette notice was subsequently issued on 10 April 2014 declaring that Ms Grace’s block was “set apart as a Māori reservation for the benefit of the descendants of Wiremu Parata Te Kakakura”. As a reservation, the land has now been afforded the protection of being “inalienable” to the Crown under s 338(11).
As part of this decision, the Court had to consider whether Ms Grace’s land fulfilled the statutory requirements under s 338 of being a place of special “cultural, historic, or scenic interest” or wāhi tapu, that is, “a place of special significance according to tikanga Māori”.
The decision contains a detailed discussion of how an applicant can establish a Māori reservation. Counsel for Ms Grace used the five-question framework established in Gibbs v Te Runanga O Ngati Tama. Chief Judge Isaac allowed Ms Grace’s application to be made as both a place of cultural or historical significance and as a wāhi tapu. This approach gives applicants two opportunities to show that their land should be granted reservation status and is the correct approach based on the language of TTWMA. According to Chief Judge Isaac, section 338 does not specify that an application must be made either under s 338(1)(a) or (b). The use of the word “or” between subsections (a) and (b) implies than an application need not satisfy both requirements but does not exclude an application from fulfilling both. On this point, Chief Judge Isaac declined to follow the obiter comment (an observation made in passing) in Gibbs that an application under s 338 must be made exclusively for one of the two categories.
Chief Judge Isaac also took a broad approach in considering what was sufficient to constitute ‘cultural or historical significance’. The NZTA argued that tangible evidence of historical importance such as archaeological artifacts was necessary and that cultural/spiritual connections should be afforded little weight. However, Chief Judge Isaac held (at ) that:
[W]hen considering an application for a Māori reservation, all evidence needs to be considered. The physical evidence needs to be coupled with the intangible, spiritual and cultural evidence of the tangata whenua and people directly associated with the land.
To do otherwise would be to disregard tikanga Māori. The Court held that the entirety of the block of land was of cultural and historical significance because of the strong whakapapa connections Ms Grace and others had to the land. It was the site of the Tuku Rakau settlement, an important site for Te Ati Awa people from the early 1800s. Significantly, Ms Grace’s land comprises the small remnant of lands of Wi Parata (Te Kakakura), one of New Zealand’s first Māori politicians. Chief Judge Isaac placed considerable weight on promoting the purpose of “retention” of land outlined in sections 2 and 17 of the TTWMA.
In Gibbs a major factor in the denial of the family’s application for Māori reservation status was the lack of communal purpose for the land. The Court there held that the beneficiaries of the proposed reservation would be largely limited to the direct family of the applicants. In that case, Judge Harvey ruled that a Māori reservation could not be declared for the sole benefit of keeping the land in the family. In Ms Grace’s case the NZTA argued that - as in Gibbs – Ms Grace had not shown a clear communal purpose to support making the land a reservation. However, Chief Judge Isaac adopted a broad approach to this issue as well. Ms Grace’s proposal to act as caretaker for the land for the benefit of all the descendants of Wi Parata and the possibility of establishing a retreat on the land appeared to be enough to satisfy the requirement of a communal purpose. This approach reiterates Chief Judge Isaac’s emphasis on retention of Māori land in accordance with TTWMA.
This is an important case for understanding the creation of Māori reservations.
In Grace v Minister of Land Information the Environment Court dealt with Ms Grace’s notice of objection under s 23 of the Public Works Act 1981 (PWA) to the compulsory acquisition of her land.
On 6 June 2013 Ms Grace was issued with a notice of intention to acquire the land by the Minister for Land Information. The notice stated that part of her land (983m2) was required for the construction of the MacKays to Peka Peka Expressway. The Environment Court had to consider whether, under section 24(7)(d) of the PWA, the acquisition of the land would be “fair, sound and reasonably necessary” to achieve the Minister’s objectives.
The Court placed considerable weight on the importance of protecting Māori land interests, ruling that it would not be “fair, sound and reasonably necessary” to take the land for an expressway because the NZTA had not satisfactorily investigated other options. The Court followed the statement of Lord Cooke in McGuire v Hastings District Council that even if the alternative was “not ideal” it should be preferred if it avoided interfering with Māori land rights. Emphasis was placed on the fact that the land comprises the remains of Wi Parata’s land and on Ms Grace’s whakapapa to the land.
The decision of the Environment Court in Grace v Minister of Land Information differs from the Privy Council judgment in McGuire v Hastings District Council delivered in 2001. In McGuire, protection of Māori land interests by the Māori Land Court was thwarted when the Privy Council decided that the Māori Land Court did not have jurisdiction to prevent the designation of land for roading purposes under the Resource Management Act 1991 (RMA). In McGuire the Court had to deal with the interface between s 19(1)(a) of the TTWMA – which gives the Māori Land Court jurisdiction to grant an injunction against any actual or threatened trespass to Māori land – and s 168 of the RMA which gives local authorities the power to designate land for public works. The Privy Council held that, because the RMA is a comprehensive piece of legislation and contains provisions that deal with Māori land interests, Parliament would not have intended for the Māori Land Court to have jurisdiction over these issues.
Grace v Minister of Land Information is different because here the Environment Court was considering whether it was fair, sound and reasonably necessary for the Crown to take land against a context where the land had been declared a Māori reservation pursuant to a different process under s 338 TTWMA which made the land inalienable to the Crown.
The recent successes of Patricia Grace in the Māori Land Court and in the Environment Court contrast starkly with the history of compulsory acquisitions of Māori land under Public Works legislation in New Zealand. This legislation was widely used to confiscate land from Māori to use for public purposes of benefit to society generally. Māori land was often preferred to European land for public works. The relevant legislation was developed in a complicated and confused manner. Māori land was seen as easier for taking authorities to target. For example, the Native Lands Act 1865 removed past protections over Māori land and allowed five per cent of land to be taken for roading purposes. It marked the beginning of a history of legislation that encouraged the compulsory acquisition of Māori land. Areas of importance to Māori such as urupā and places that were wāhi tapu were not afforded protection under legislation although places of importance to Europeans such as gardens were protected.
This discriminatory legislation continued well into the 20th century. Under the Public Works Act 1928 proposed compulsory acquisitions of Māori land were not required to be published in a Gazette as was required for general land. This meant that Māori had even less opportunity to be informed about public works takings and exacerbated problems for Māori in terms of objecting to confiscations of land. Furthermore, ‘offer back’ provisions were not enforceable in regards to Māori land. Ward writes:
Māori land was the prime target for takings and most often this was the result of Crown policies such as the fragmentation of Māori land title which allowed taking authorities to abandon the procedures routinely applied for general land, such as negotiation and consultation with owners.
Māori often did not receive the compensation they were entitled to because of the confusion surrounding processes. Local authorities took advantage of this. For example, the Waitangi Tribunal Report Wairarapa ki Tararua Report cites Bruce Stirling’s estimate that in the Wairarapa ki Tararua region 607 acres of Māori land was compulsorily acquired before 1900 and compensation was only paid in a few instances.
In 1981 new legislation was passed which does little more to improve protection of Māori land interests. Section 41 of the PWA 1981 does though allow Māori land to be ‘offered back’ through the same procedure as general land. Where land is no longer required for a public work it may be sold back to the original owner at market price or at a lesser price if the public works owner (often a local authority) considers it reasonable to do so. However, often the land will have increased in value, possibly due to the public works that have taken place and former owners are often unable to afford to purchase the land. It is at the disposing authority’s discretion whether they choose to offer the land at a lesser price. Furthermore, there are no provisions in the PWA to discourage the compulsory acquisition of Māori land in the first place. The Treaty of Waitangi and its principles are not incorporated or referenced in the PWA.
The attempts of the NZTA to acquire Ms Grace’s land for roading purposes may be regarded as evidence of the continuing practice of Government agencies failing to adequately consider alternatives to taking Māori land for public works. In Grace v Minister for Land Information the Court noted that there was an alternative route which would have avoided Ms Grace’s land but that there was no evidence of it being given any, let alone adequate, consideration.
Although the Board of Inquiry—established to determine regulatory consent applications lodged for the MacKays to Peka Peka project—considered a submission by Ms Grace and others, it found at  of its final report that “the cultural dimension will be appropriately accommodated and provided for as part of the Project.” It also stated at  that “the acquisition of land by the Crown is a matter outside our jurisdiction”. This highlights the need for more protective provisions to be incorporated into the current public works legislation.
The Waitangi Tribunal has been critical of the Crown in using Public Works legislation as a tool to confiscate land from Māori. The Tribunal has found that the Crown’s discriminatory use of public works legislation constitutes a breach of the principles of the Treaty of Waitangi. In the 2010 Wairarapa ki Tararua Report the Tribunal found that the legislation of the time and the procedures followed for taking land were discriminatory to Māori. For instance, under the Public Works Act 1882 the Crown could confiscate any Māori land by an Order in Council without following the usual procedures, such as issuing a notice in the Gazette. The Crown has argued that land acquisitions have been made legally according to statute. However the Tribunal has rightly stated, “If the compulsory taking of land from Māori was wrong in principle…then compliance with statutory requirements does not retrieve the position for the Crown.”
In the Wairarapa ki Tararua Report the Waitangi Tribunal held that the Crown had a duty, when compulsorily acquiring land for public works, to implement partnership with Māori and actively protect, negotiate, and consult with Māori. The Tribunal held that the Crown had failed to fulfill all these duties. The process in which land was taken was convoluted and confused by a swathe of statutes and regulation resulting in limited consultation with Māori. Māori were unfamiliar with the British system of objecting to these works. Therefore, the Crown had a duty to clearly consult with Māori, that Māori were “generally aware” of what was happening to the land was not enough. The Crown should also have been aware of the importance of wāhi tapu and urupā sites to Māori and protected them. For instance, the construction of a rubbish dump on compulsory acquired Māori land in Dannevirke in 1981 showed a disregard for tikanga Māori because it was constructed near a marae.
These findings are relevant to Ms Grace’s dispute. NZTA’s actions illustrate a continuing failure on behalf of the Crown to uphold the terms of the Treaty of Waitangi and support the purposes of TTWMA. Under the second article of the Treaty, the Crown guarantees Māori “full, exclusive and undisturbed possession” of their lands. Grace was denied this right when the NZTA insisted on compulsorily acquiring her land. It is arguable that having a provision that allows the compulsory acquisition of Māori land is a breach of the Treaty in and of itself. However, the Waitangi Tribunal has identified some scenarios where compulsory acquisition of Māori land for public works would be justifiable. Furthermore, the preamble to the Treaty emphasises the importance of maintaining peace and order in New Zealand. These principles suggest that in times of national emergency the acquisition of Māori land may be justifiable. In the Orakei Report 1987 the Tribunal stated that the taking of land:
for defence purposes with a view to securing peace and order [is arguably] acting for the benefit of all citizens… and is not inconsistent with Treaty principles
In its Turangi Township Report 1995, the Waitangi Tribunal stated: 
Under article 2, the chiefs gave to the Crown a pre-emptive right to purchase such lands as they might be disposed to sell at such prices as may be agreed upon. Statutory powers giving the Crown a right to ride rough-shod over the solemn rights guaranteed to Maori by article 2 could be justified only ... in exceptional circumstances and as a last resort in the national interest.
The Government has classified the MacKays to Peka Peka expressway as a “road of national significance”. As described by the NZTA, the purposes of these roads are to “reduce traffic congestion, improve safety and support economic growth in New Zealand”. It is difficult to argue that these aims represent the exceptional circumstances contemplated by the Tribunal.
Given that the NZTA attempted to acquire this land without giving alternatives “any, let alone adequate consideration” it is evident that there was no attempt to balance the importance of protecting Māori land interests with the importance of constructing the expressway. This lack of consideration also indicates that the Crown may have breached the duty of active protection implicit in Article II of the Treaty because no effort was exerted in protecting Ms Grace’s ownership of her land.
In its dealings with Ms Grace the Crown may have failed to meet duties of partnership and consultation implied in the Treaty. Ms Grace was not consulted over the acquisition of her land. In an interview with Māori Television, Ms Grace complained that she and her whānau were not informed of the intention to acquire her land until after the consultation process was over. This meant that she was denied the opportunity to offer her opinion on the proposal although as the owner of the land she is undoubtedly an important figure in the process. Ms Grace was also not consulted about alternatives to the use of her land in constructing the expressway. We can see that breaches of the Treaty that the Crown has committed since the 1860s continue today.
Some attempts have been made to improve Public Works legislation. In 2001 a review of the Public Works Act 1981 was conducted. Many submissions were made to the Select Committee overseeing this review by or on behalf of Māori. Submitters advocated for the inclusion of the principles of the Treaty of Waitangi in the Act to discourage the acquisition of Māori land for public works. Other submissions included limiting the power of acquisition to central Government rather than allowing this power to be designated to local authorities, and taking into consideration the significance of the loss of the use of the land when negotiating buy-back agreements.
In 2007 Te Ururoa Flavell of the Māori Party introduced the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill to Parliament. The Bill proposed incorporating provisions into the PWA allowing for retrospective payments to be made to those who did not receive adequate compensation from compulsory acquisitions. It also required taking authorities to offer back land that was not used for the purpose it was confiscated. These proposed changes offered considerably more protection to Māori land-owners than the current legislation. However, the Bill failed at its second reading by 14 votes to 108. The Green Party and Māori Party were the only parties to continue supporting the Bill whilst the National, Labour, Act, Progressive and United Future parties all voted against it.
Those against Flavell’s Bill cited two main reasons for their opposition: the difficulty and expense of enforcing retrospective legislation; and the issue of determining ‘original use’ in relation to the offer back provisions. National MP Chris Auchinvole believed the retrospective provisions would result in a “logistical nightmare”. Another National MP, Louise Upston, believed that the implications of the proposed offer back provisions would result in unfair consequences because in many cases the use of land acquired through the PWA had changed, but the use remained in the public interest. Several MPs opposing the Bill believed the Waitangi Tribunal process was sufficient to redress any inequalities caused by historical public works takings. However, Māori Party MP Rahui Katene argued that Māori would only receive back one per cent of what was taken from them through Treaty settlements. Several members advocated for another review of the Public Works Act to deal with these issues and to explore incorporating a “Treaty clause” into the PWA.
Although the Public Works Act has not been substantially amended in recent years for the benefit of Māori land owners it is likely that the publicity surrounding Patricia Grace’s land dispute has generated greater awareness of Māori land issues. In an interview with Māori TV Ms Grace stated that she hoped the cases would get more Māori landowners to become aware of how they can protect their interests and consider turning their Māori freehold land into Māori reservations. It may be that Patricia Grace’s disputes are likely to encourage more opposition by Māori to acquisitions under the PWA.
In studying the disputes over land that New Zealand author Patricia Grace has recently endured, it is evident that the use of Public Works legislation in New Zealand has been destructive to Māori interests in land. In using this legislation to confiscate Māori land for public works that are not of paramount importance to the public interest especially when reasonable alternatives exist, the Crown is potentially in breach of the principles of active protection and partnership contained in Te Tiriti O Waitangi/The Treaty of Waitangi. Until more protective provisions are incorporated into the PWA, Māori land will be vulnerable to compulsory acquisition - despite Ms Grace’s successes in Court which show that Judges are increasingly considering that the protection of Māori interests in light of the terms and principles of the Treaty of Waitangi are highly important. Ms Grace’s success was confirmed in June 2014 when the NZTA abandoned its appeal against the Māori Land Court’s decision to recommend that Grace’s land be set apart as a Māori reservation.
 Public Works Act 1981, s 24(7)(d).
 Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268. See (2014) September Māori LR.
 “Setting Apart Land as a Maori Reservation” (10 April 2014) 38 New Zealand Gazette 1071 at 1113.
 Te Ture Whenua Maori Act 1993, s 338(1)(a).
 Te Ture Whenua Maori Act 1993, s 338(1)(b).
 (2011) 274 Aotea MB 47 (274 AOT 47). See (2011) October Māori LR.
 Te Ture Whenua Maori Act 1993, s 338(1).
 Kapiti Coast District Council “Tuku Rakau” Kapiti Coast District Council <http://www.kapiticoast.govt.nz/Our-District/Heritage-Trail/waikanae/tuku-rakau/>.
 Grace v Minister of Land Information  NZEnvC 82. See (2014) September Māori LR.
 McGuire v Hastings District Council  UKPC 43.
 McGuire v Hastings District Council  UKPC 43.
 McGuire v Hastings District Council  UKPC 43.
 Cathy Marr, Public Works Takings of Maori Land, 1840-1981 (1997, Waitangi Tribunal Rangahaua Whanui Series) at [p 11]
 Native Lands Act 1865, s 76 and Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 308]
 Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 308]
 Alan Ward National Overview Report of Rangahaua Whanui Project (volume ii, GP Publications, Wellington,1997) at [p 315]
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).
 Board of Inquiry in respect of the MacKays to Peka Peka Expressway Project Final Report and Decision, 199.
 Board of Inquiry in respect of the MacKays to Peka Peka Expressway Project Final Report and Decision, 194.
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010) at 52.
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010) at 47.
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).
 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).
 Waitangi Tribunal Report of The Waitangi Tribunal on the Orakei Claim. (Wai 9, 1987) at 233.
 Waitangi Tribunal The Turangi Township Report (Wai 84, 1995).
 NZTA “Wellington Northern Corridor” New Zealand Transport Agency Waka Kotahi <http://www.nzta.govt.nz/network/projects/wellington-northern-corridor/>
 Grace v Minister of Land Information  NZEnvC 82, .
 Interview with Patricia Grace, novelist (Te Karere TVNZ, 15 April 2014).
 LINZ Review of the Public Works Act Summary of Submissions (2001).
 The Maori Party Public Works (Offer Back of and Compensation for) Amendment Bill (2007).
 (21 July 2010) 665 NZPD 12556.
 (21 July 2010) 665 NZPD 12556
 Interview with Patricia Grace, novelist (Te Karere- TVNZ, 15 April 2014).