Joshua Hitchcock

Archive for January, 2012|Monthly archive page

The Strategic Stupidity of the Māori Party

In Te Ao Māori on January 31, 2012 at 8:02 pm

Update 2/2/2012: The Government has now called for submissions on how to deal with Te Tiriti o Waitangi in the context of the proposed mixed ownership model for State-Owned Enterprises.  I discuss this here, and I have also written about the consultation process.  For an initial discussion of the possibility of a legal challenge against any non-inclusion of a principles of the Treaty clause in the proposed legislation, you can find this in my article on Asset Sales and Te Tiriti o Waitangi.

Moves today by the Māori Party to distance itself from the National-led Government over the partial sale of State-Owned Enterprises are bewildering and highlight a lack of strategic political thinking from within the Party.  Withdrawing support over an issue which was deliberately EXCLUDED from the Confidence and Supply agreement is, at best, politically naive and, at worst, a massive strategic mistake.  To die in a ditch over this issue will destroy any prospect of achieving the further gains set out in the Confidence and Supply Agreement.

The failure of the Māori Party to include specific protections for Māori around the partial sales of SOE’s in their agreement with the National party is one entirely of their own making.  Supporters should be demanding answers from the Party as to why such protections were not discussed at the time of signing the agreement.

What makes it more unbelievable is that this is an issue that is going to proceed regardless of Māori Party support.  Partial sales will happen.  Te Ao Māori, in a situation similar to the late 19th Century, is dividing into sellers and non-sellers.  There are Māori who support partial sales – driven on by the belief of the economic rewards that will follow.  Others decry such a policy, convinced of the inalienability of Māori land and the desire to ensure national control of our assets.  Te Ao Māori is split, Tikanga Māori provides no clear guidance as selling is as much of Māori society as the romantic, but ultimately flawed, notion that Māori land is, and always has been, inalienable.  To throw away the prospects of real and substantial gains in Māori health, education, and economic well-being is to set back Māori development 20 years.

Asset Sales and Te Tiriti o Waitangi

In Te Ao Māori on January 31, 2012 at 1:37 pm

Morgan has written today on the likely exclusion of a Treaty-principles clause in the legislation to allow for the partial sale of State Owned Enterprises.  He takes the position that the Treaty will not stop asset sales, but that partial sales without reference to Te Tiriti o Waitangi would be in breach of the principle of active protection.  I agree in part with his analysis, although in my opinion too much emphasis is placed on rather dubious claims of Māori interests that will be affected by any partial sales.  I will discuss those issues is a subsequent post, for now I will deal first with the contention that Te Tiriti can be used to prevent asset sales; and second, with potential legal avenues for Māori to pursue to challenge such legislation.

First, Te Tirit o Waitangi cannot be used, in and of itself, to override legislation.  Māori were offered that choice in the 1980’s when Sir Geoffrey Palmer advocated for a Bill of Rights which would have enshrined Te Tiriti in law and granted the courts the ability to strike down legislation.  Māori rejected the inclusion of Te Tiriti in the Bill of Rights and the clause allowing for judicial review of legislation was struck out.  Since then the courts have been consistent in their position that Te Tiriti is not part of New Zealand law unless it has been incorporated by Parliament.

That is where the argument that a claim can be lodged in the High Court alleging breach of the principles of Te Tiriti breaks down.  If the proposed legislation does not state that the Crown must act consistently with the principles of Te Tiriti then there can be no claim in the High Court that the legislation must be interpreted in accordance with the principles of Te Tiriti.  There is, as yet, no distinct legal remedy for a breach of Te Tiriti o Waitangi by the Government.

The leading case is the 2007 decision of the Court of Appeal in New Zealand Māori Council v Attorney-General [2007] NZCA 269 in a challenge against the introduction of legislation relating to the Te Arawa Deed of Settlement (The Te Arawa Case).  The Court made two findings that are important to consider in this context.  The first is that fiduciary duties (such as the duty of active protection) sourced from the Treaty itself could not form the basis of an action in New Zealand law.  The second is that the Court will not grant any remedies relating to the introduction of legislation to Parliament as to do so “would be to intrude into the domain of Parliament.”

The Court in the Te Arawa Case, therefore, explicitly rejected the claim that legal remedies can flow from a breach of Te Tiriti o Waitangi.  The success of the  1987 Lands Case, much cited in discussions of the principles of Te Tiriti, arose as a result of section 9 of the State Owned Enterprises Act 1986 which provided that nothing in the Act shall permit the Crown to act in a manner inconsistent with the principles of the Treaty of Waitangi.  It was section 9 which allowed the Court of Appeal to issue an injunction preventing the transfer of land from the Government to a State-Owned Enterprise under the Act until a suitable scheme had been agreed upon by which land transferred would be protected in the event that it will become part of a settlement with Iwi or Hapū.  Absence such a Treaty clause, the Courts will not be able to hold the Government to the principles of Te Tiriti o Waitangi.

In summary, the legal position is this:

– No court will grant a remedy against proposed legislation as to do so would breach the principle of non-interference into the activities of Parliament; and

– If the proposed legislation does not include a section requiring the Crown to act consistently with the principles of Te Tiriti, then no claim can be taken arguing that the Crown has acted inconsistently with such principles.

– A claim can be taken to the Waitangi Tribunal but any decision of the Tribunal in this area will be by way of recommendation only and will not be binding on the Crown.

Potential Legal Avenues

There remains one, as yet unexplored, legal avenue to pursue in the New Zealand courts.  Based on the landmark 1984 decision of the Supreme Court of Canada in R v Guerin, a claim could be taken along trust/fiduciary law principles as they relate to undertakings made to indigenous peoples.  In Guerin, a specific undertaking made by the Federal Government led to the creation of an enforceable fiduciary duty owed to the Musqueam of Vancouver.  The Canadian Government had placed themselves in a protector-protected relationship in respect of the aboriginal land of the Musqueam and traditional trust duties were held to flow from this relationship.  In a similar vein, it can be argued that the Crown holds in trust any land either vested in itself, or a State-Owned Enterprise, that is subject to a claim by Māori under Te Tiriti o Waitangi.

As I said, this argument is currently untested in New Zealand, and would require considerable legal effort to bring before the courts.  However, it is an argument that I will continue to develop over the next few weeks and it will be presented to the Government in support of the proposition that Te Tiriti guarantees should be included in any new legislation allowing for the partial sales of State-Owned Enterprises.

Government Consultation on Partial Sale of SOE’s

In Te Ao Māori on January 27, 2012 at 11:42 am

The Government today announced a series of hui in early February to discuss with Māori the partial sale of state-owned assets. It also announced that a formal written submission process will be undertaken in February.  This process will be important for those Māori (and New Zealanders in general) who want to have an influence on the legislative scheme for the partial sales.  This will not, however, be an opportunity to stop the partial sales from proceeding.  The Government has decided to proceed with the partial sales and will not deviate from this decision.  What this process allows is for interested parties to have their say on how the partial sales proceed, and what safeguards are built into legislation to ensure that our interests are best preserved.

Perhaps one of the least appreciated, and used, method of influencing a Government’s decision-making process is to provide high-quality feedback on consultation papers, discussion papers, and draft legislation.  Parliament will leave a lot of the technical details of any given policy programme to officials and, in my experience of engaging with such officials at this stage of the process such officials remain open to significant technical changes provided that a strong case can be made.

I will be preparing a submission on the consultation document when it is released on 1 February 2012, and I will write more on that when the information is released.

For those interested in attending the consultation hui, the dates and locations are set out below.

8 February 10.00am Distinction Rotorua Rotorua
8 February 3.00pm Waikato Stadium Hamilton
9 February 3.00pm Whanganui Racecourse Whanganui
10 February 9.30am Toll Stadium Whangarei
10 February 3.30pm Novotel Auckland Airport Auckland
14 February 10.00am Waihopai Runaka Murihiku Marae Invercargill
14 February 4.00pm Chateau on the Park Christchurch
15 February 10.00am Emerald Hotel Gisborne
15 February 3.30pm Te Puni Kokiri Wellington

Government Cuts Threaten Treaty Settlement Process

In Te Ao Māori on January 17, 2012 at 2:00 pm

There is growing concern among lawyers working on Te Tiriti o Waitangi claims before the Waitangi Tribunal that changes to the legal aid system in 2011 have the potential to completely derail the Waitangi Tribunal process, and with it the entire Treaty Settlements process.  A severe lack of resourcing for Iwi, Hapū, claimants, and lawyers alike has resulted in a system which massively favours the Government and speed and efficiency are taking precedence over justice.

In the name of posterity the Government has embarked on a series of reforms of the legal aid system designed to make the regime more efficient and cost-effective.  The reforms have been touted as ensuring quality in legal representation but in reality they are nothing short of a blatant cost-cutting exercise.  Yet, the savings made by the Government in this area are minimal in the context of the entire budget, amounting to a total of $138 million over four years.  In the year ended 30 June 2011, total Government expenditure amounted to a shade under $100 billion.  This amounts to a saving of 0.0345% each year.  To put this into context, if a person spending $50,000 per annum was to cut expenditure to the same degree, he or she would save a grand total of $17.25.   Even in the context of a multi-billion dollar deficit, the savings in this area are nothing more than cosmetic.  The only purpose the cuts serve are political.

While the cost-cutting in Wellington has a negligible effect on the Government’s bottom line, the impact on Māori is being felt throughout the country.  Māori lawyers are coming under increasing financial pressure and unless a release valve is found soon, the entire Treaty Settlement system will fall apart.  The Ministry of Justice, tasked with administering the legal aid system, is under-resourced and failing to provide enough staff to adequately administer legal aid funding for Waitangi Tribunal claims.  Invoices submitted to the Ministry for payment are being held up for 6 months or more, and in one extreme case a law firm has not been paid on its legal aid files since August 2011.  Personally, it has been over a year since I had any security of income as we also deal with delayed payment by the Government in respect of our Waitangi Tribunal work.

This has downstream consequences for Māori hapū and whanau who are taking claims to the Waitangi Tribunal.  Lawyers are no longer taking on new claimants, leaving them to navigate the very technical and time-intensive legal processes of the Waitangi Tribunal on their own.  Even where claimants have legal representation, the Ministry of Justice will occasionally deny hapū or whanau legal aid, or fail to approve the requisite legal work required to fully present a claim to the Waitangi Tribunal.  There is only so much pro bono work that a lawyer is prepared to do.

It is difficult to see exactly what the Government is trying to achieve here.  The cuts in legal aid funding, the under-resourcing of the Waitangi Tribunal, and the increasingly one-sided take-it-or-leave-it approach to Treaty Settlements are all acting in direct opposition of their stated aim to settle all historical Treaty claims by 2014.  Iwi, Hapū and Whanau need high quality legal representation to guide them through the Waitangi Tribunal and Treaty Settlement processes.  Without it the Crown can harness its institutional knowledge and use this to its advantage against a group whom find the process to be foreign and, at times, daunting.  If the Government has any realistic desire to complete settlements by 2014 (or even 2016) then it needs to fully fund the Waitangi Tribunal, provide adequate resources to the Ministry of Justice, and ensure that the lawyers working to assist Māori achieve justice, are firstly, paid for the work that is being done and, secondly, paid in a timely manner.

I know politicians and beehive staffers read this blog, and I speak directly to those of you reading this today.  Māori will not tolerate another round of injustices.  Full and Final will never mean Full and Final unless the process is fair and, as things stand, the Government is working overtime to stack the process in its favour.  Changes to legal aid, and the constant delay in approving legal work and paying on invoices, are designed to drive as many lawyers out of the field as possible – further tilting the process in the Government’s favour.

Justice is as much, if not more, about the process than it is about the result.  After 170 years, Māori deserve better.


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