A World Indigenous Lawyers Conference: The Definitive View

September 19, 2012

I have promised many people over the course of the past two weeks that I will provide a review of the annual Te Hunga Roia Māori, Hui-a-Tau (The Māori Law Society Annual Conference) which also co-existed as a World Indigenous Lawyers Conference (WILC 2012), held at the University of Waikato in early September.  Not one to disappoint, here is the definitive review of the conference:

It was awesome. Come along next year and see for yourself!

Parliament Discusses the “Shares-Plus” Consultation Hui

September 19, 2012

The following exchange took place in Parliament this afternoon in relation to the Government’s “Shares-Plus” consultation hui:

Question 3 : Wednesday 19 September 2012

3. TE URUROA FLAVELL (Māori Party—Waiariki)—to the Minister for Treaty of Waitangi Negotiations: Does he agree that “Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done”; if so, how do the Government’s consultation hui about the “shares plus” proposal align with this definition?

Hon CHRISTOPHER FINLAYSON (Minister for Treaty of Waitangi Negotiations): Yes; and totally. Is that succinct enough?

Mr SPEAKER: Order! Before I come back to the honourable member, it might be, but it is not a good enough answer to a primary question. The Minister will now give a considered answer, because the Standing Orders actually require a Minister to give a constructive answer to a primary question—[Interruption]—I am on my feet; Ministers should just take a deep breath for a moment—where there are no words in that question that are in any way provocative. There are no such words in the question whatsoever. I do not believe that is an acceptable answer to the House. I accept that it is an answer, but it is not acceptable, given the Standing Orders, in that Ministers are expected to provide information in answering questions, and that answer did not provide any information.

Hon CHRISTOPHER FINLAYSON: “Succinct” is obviously elastic.

Mr SPEAKER: Order! [Interruption] Order! I am on my feet. The Minister will desist from that line of action. He will just treat the House with the respect it deserves.

Hon CHRISTOPHER FINLAYSON The quote draws on the finding of the Court of Appeal in 1992 in a case involving  Wellington International Airport, reported I think in [1993] 1 NZLR 671. What that decision confirms is that the party consulting can have a working plan in mind, and that is the position here. The Government has a preliminary view on “shares plus” and a working plan based on that preliminary view, but it has an open mind and is willing to change its mind if submissions are persuasive—succinct and to the point.

Mr SPEAKER: I thank the Minister.

Te Ururoa Flavell: Does the Minister support the view of the Deputy Prime Minister that “The Government has already said that such a shareholding would be unattractive, unnecessary, and unworkable …”; if so, what assurance can he give Māori that the Government is not entering into consultation with a  predetermined outcome in mind?

Hon CHRISTOPHER FINLAYSON: Yes, I can give that member and the House an assurance that the Government has an open mind. As I said, the Government has formed a preliminary view about “shares plus”, and that view is noted in its letters on the Treasury website, and it is in that context that the Deputy Prime Minister’s comments are to be understood. Again, the view is preliminary, and the Government is consulting in good faith in order to hear whether there are other views about “shares plus”.

Te Ururoa Flavell: Does the Minister agree with Māori lawyer Joshua Hitchcock that “In many respects the Government is treating this as a pro-forma exercise of consultation. It is merely ticking the boxes to satisfy the Court in the event of a challenge to the sale process that it has followed due process.”; if not, why not?

Hon CHRISTOPHER FINLAYSON: No, I certainly do not. It is not a matter of simply ticking boxes, and Governments have learnt a lot since the decision of the Court of Appeal in 1993. The Government has a preliminary view. It wants to test that view, and that is why the Deputy Prime Minister—and next week the Deputy Prime Minister and I—will be having these hui, one of which was very well attended in  Taupō today. The Government acknowledges it may not have thought of everything. It wants to hear other views, and then it will make a decision, and that is why we will have a consultation.

Hon Peter Dunne: Given the terse and succinct nature of the Minister’s answer, could he elaborate on what the Government’s preliminary view is?

Hon CHRISTOPHER FINLAYSON: Yes. The Government’s preliminary view, as set out on the website and in Treasury papers, and in the view of the Deputy Prime Minister, is that there are more minuses than pluses with “shares plus”. Take, for example, the suggestion that minority shareholders could have some say in the appointment of directors to the company, who would then act on the wishes of the minority shareholders. Well, in terms of company law, that is quite problematic because directors, once appointed, owe a duty to the company, not to the people who put them there.

Not the deliberate change in language.  The Deputy Prime Minister’s press release was rather unequivocal on the Government’s opinion of the “Shares-Plus” concept, to hear the Attorney General now speak of it as merely a preliminary view appears to be an attempt to fix an unintentional mistake.




“Shares-Plus” Consultation

September 18, 2012

Today marks the commencement of the Government’s consultation round on the “shares plus” concept raised in the Waitangi Tribunal’s interim report into the New Zealand Māori Council’s freshwater and state-owned enterprise claim.  I spoke briefly about the Government’s duty to consult on Newstalk ZB this morning, but time constraints resulted in a rather truncated analysis.

The Duty to Consult

The duty to consult is a long-standing principle of natural justice.  It is as extension of the common law right of Audi Alteram Partem (the right to be heard) and arose as Government decision-making extending beyond decisions primarily affecting individuals to decisions affecting larger numbers of people.

Initially, the Courts did not recognise any duty to consult implicit in Te Tiriti o Waitangi.  In he landmark 1987 Lands case, the Court of Appeal defined consultation with Māori as being elusive and unworkable, although a precise reading of these comments can see that the nature of the consultation referring to by the Court was full consultation with Māori on all issues.  Framed as an all-encompassing duty to consult in all situations it is easy to see why such a duty can be elusive and unworkable.  The Court of Appeal would make this distinction clear in the Forests case (NZMC v Attorney-General [1989] 2 NZLR 142) when it held that the duty of good faith requires consultation on “truly major issues”

The Tribunal continued to develop the nature of the duty to consult during the 1990s and in the 2002 Ahu Moana: Agriculture and Marine Farming Report (Wai 953), noted that:

It is now well established that, in a matter of particular significance to Māori, the Crown has a duty to act reasonably, to make informed decisions, and to turn its mind to the future needs of Māori.  This cannot be done without consultation.  Full discussion must take place with Māori before the Crown makes any decisions on matters that may impinge upon the rangatiratanga of a tribe or hapū in relation to its taonga.

The duty is, however, not absolute.  The Court of Appeal, in Wellington International Airport, held that consultation does not mean agreement, nor does it envisage negotiations towards an agreement.  It does, however, require more than a prior notification that the Government intends to pursue a particular course of action.

For this discussion, the following principles can be distilled:

  • The Government has a duty to consult with Māori on issues that impinge on the exercise of tino rangatiratanga;
  • Mere notification of a planned course of action is not sufficient;
  • Consultation is a genuine, open-minded, discussion between the Government and affected Māori; and
  • Consultation does not mean agreement.

The Government’s “Shares-Plus” Consultation Process

There are some positives and some negatives of the current process being undertaken by the Government.

The positives:

  • The Government has made an effort to go out and talk to those iwi directly affected by the planned sell down of the power companies.  The Hui are being held in the rohe where the hydroelectric dams exist and impact on the rangatiratanga of local iwi and hapū.
  • The Government is engaging in this process with the Deputy Prime Minister, with facilitation to be shared by Sir Wira Gardiner and a chair appointed by local Māori.  A high-level discussion with the politicians making the decisions is more positive than one with officials only.

The negatives:

  • Information on the hui was only released last night. I presume that the Government has made contact with the local hapū in advance, the short public notification leaves little time for those within the area to organise themselves and present a detailed argument for the adoption of the shares plus model.
  • In many respects the Government is treating this as a pro-forma exercise of consultation. It is merely ticking the boxes to satisfy the Court in the event of a challenge to the sale process that it has followed due process.

This second negative could come back to haunt this Government.  While consultation does mean agreement, the Government cannot enter into consultation with a pre-determined outcome in mind.  The Press Release yesterday referred to the “shares-plus” concept as follows:

The Government has already said that such a shareholding would be unattractive, unnecessary and unworkable but now that the matter has been raised we will talk to affected Iwi about it.

The Tainui Boycott

Finally, news came through this morning that Waikato-Tainui will not be attending the first consultation hui in Hamilton this afternoon.  Tainui are clearly of the opinion that these issues require a national hui but their boycott is misguided for two reasons.  The first is that these hui are designed to be very specific in the issues that are discussed and a national hui is not an appropriate place to discuss the “shares-plus” concept.  Māori input in the operations and management of hydro-electric power companies should be limited to those iwi and hapū who are directly affected by the companies, i.e: those that have hydro damns on their waterways. A national hui with the Government on freshwater management is important and should be held, but that issue is completely different to the issue under discussion today. Tainui risk being shut out of this process completely.

That point leads directly onto the second problem with Tainui’s approach.  The High Court, in the recent decision of Greenpeace v Minister of Energy and Resources [2012] NZHC 1422, commented directly on this issue.  The Court noted that the Government held two consultation rounds and that the local hapū, Te Whanau-a-Apanui, did not make any submissions as to concern for its taonga.  The Court noted that Te Whanau-a-Apanui were provided with advance notice of the consultation and received an offer of a face-to-face discussion.  The hapū did not actively engage with the Ministry.  The Court stated that consultation and good faith is a two-way street, and requires the engagement of both parties.  The Court concluded by stating that:

If Te Whanau-a-Apanui had the concerns it now puts forward, on the basis of later opinion advice, it would have raised them then [at the time of consultation].  In choosing not to actively participate substantively or respond to the request to consult, it cannot complain now.




MLP News: Tuesday 4 September 2012

September 4, 2012


Plenty to update you on today whānau, so let’s get straight into it:

  • The Government yesterday announced a delay to its flagship partial asset sales programme to consult with Māori over the “Shares Plus” concept floated by the Waitangi Tribunal.  I too am intrigued about this concept and am trying to learn as much as I can about this.  Keep an eye out for some analysis later in the month.  There are already some concerns being floated about the adequacy of the proposed consultation, especially with the possibility that the Māori Council will not be the first port of call for the Government. I have no problem with this.  The Government has a duty to consult with Hapū and Iwi and, as far as I am concerned, the Māori Council has no mandate to represent either.
  • That aside, I am still confident that the Government will proceed with the asset sale programme in 2013.  As I have said before, it is a key policy platform of this Government, and the main objection from Iwi is that they are being shut out of the process, and would like compensation for the loss of water rights in the form of preferential shares.  No matter how much the left would like to spin this as the end of the sales programme, the claim was never about stopping it completely – rather it was a vehicle designed to ensure that our rights as Māori are recognised so that we are in a position to first, protect such rights and, second, to profit from such rights.
  • Speaking of the Waitangi Tribunal, its recently released report on the freshwater and asset sales claim comes in at over 250 pages.  The short version is that a) Māori in 1840 held, and continue to hold today, some form of proprietary right over water; and b) the Government proceeding with the asset sales programme without making provision for redress with Māori over this issue would be a breach of Te Tiriti o Waitangi. Little surprise to see Rodney Hide come out and critique the report, saying that the Waitangi Tribunal is being influenced by myths and songs.  Once again illustrating the belief of many on the right that private property rights do not exist when they are Māori property rights.
  • In a development which has potentially far-reaching implications for the Governments mandating policy in Northland, CYFS has entered into a Memorandum of Understanding with Ngā Puhi over child welfare. (Other Iwi have also signed).  Precisely which Ngā Puhi did the Government treat with on this occasion? The constituent Hapū who constitute the federation or the Runanga who claims to represent Ngā Puhi but is facing serious dissent from within the Rohe?  Yes, it was the latter.  While the aims of the Memorandum of Understanding are laudable, the Crown has acting in bad faith towards the large number of Ngā Puhi Hapū who do not recognise the mandate of the Runanga and are actively challenging this through the settlement process.
  • Legal challenges over the Crafer Farms sale continues today, with news that the Māori Hapū who initiated the claim are getting set to appeal to the Supreme Court.  My advice would be to stop throwing good money after bad in this case.  The likelihood of overturning a Judicial Review decision by the High Court, and upheld by the Court of Appeal is not high.  And even if they win, all the Supreme Court can do is direct the Government Ministers to re-make their decision.
  • And finally, the University of Waikato is this week holding the annual Māori Lawyers Conference, which doubles as the inaugural World Indigenous Lawyers Conference.  The organisers have put together a smashing programme, bringing together some of the greatest indigenous lawyers from New Zealand and around the world to speak on a wide range of indigenous issues.  I will be in attendance and will bring you updates of the conference as it progresses.  While we are on the topic of conferences, I am still in the process of compiling my notes of the workshops and research presented at the Legal Histories of the British Empire Conference I attended in Singapore back in July.  Keep an eye out  for my whākaro on this later in the year because there is some fascinating work being down in this area – work that provides real insights into the experience of Māori over the years, in the context of the British Empire.






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