Joshua Hitchcock

Statutory Recognition of Te Tiriti

In Te Ao Māori on May 10, 2011 at 5:53 pm

The issue of the statutory recognition of Te Tiriti was again debated last Thursday when the Environmental Protection Authority Bill proceeded to the Committee Stage of the House.  The Bill previously made no mention of Te Tiriti, the common understanding being that Te Tiriti was addressed by the various pieces of legislation that the Authority will administer.  In order to remedy this, and require the Authority to take into Te Tiriti into account in its decision-making processes, two amendments were put forward.

The Two Proposed Amendments

The first amendment sought to insert the following clause into the purpose section of the Bill:

3A Treaty of Waitangi (Te Tiriti o Waitangi)

In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi,—

(a)section 17 establishes the Māori Advisory Committee to advise the Environmental Protection Authority on policy, process and decisions of the EPA under an environmental Act; and

(b)the EPA and any person acting on behalf of the EPA must comply with the requirements of an environmental Act in relation to the Treaty, when exercising powers or functions under that Act.

The second amendment proposed that the following clause be inserted:

5A Act to give effect to Treaty of Waitangi

This Act must so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.

The Authority will take over the administration of 5 different pieces of environmental legislation, each with different requirements in relation to Te Tiriti.  While the second amendment seeks to provide a consistent approach, it is incredibly vague and opens the door to potentially complex legal action – which standard is to be applied? The standard as set out in the specific legislation dealing with the issue at hand, or the more general provision as set out in this Bill?  You have, in essence, a clash between two rules of statutory interpretation: the specific prevails over the general; and the more recent enactment prevails over an earlier enactment.

Charles Chauval, in discussing these amendments, made the following point:

The different environmental statutes that will affect the work of the Environmental Protection Authority all have Treaty clauses in them, but they are different Treaty clauses. The Resource Management Act and the Hazardous Substances and New Organisms Act have requirements to take into account the principles of the Treaty, but they also refer to Te Tiriti, so by implication one has to look at the English and Māori versions of the text. However, the Conservation Act and the Climate Change Response Act require only giving effect to the principles of the Treaty; there is no reference to Te Tiriti.

It may seem a minor point of difference, but in reality both the RMA and the HSNO Act set out a more comprehensive regime for the recognition of Maori rights.  The different standards are deliberate, and allow for a more focussed approach to Te Tiriti.  Section 3A of the Climate Change Response Act 2002, for example, provides a detailed set of requirements of consultation in relation to decisions which will impact Maori.  The first proposed amendment adopts a more nuanced approach and allows for the recognition of different approaches to incorporating Maori issues and Te Tiriti o Waitangi, as appropriate to each situation. A one size fits all approach to Te Tiriti clauses does little to recognise the Mana of Maori – instead, it relegates us to a boiler-plate template which can be wheeled out whenever convenient.

Party Politics

So how did Parliament vote? The first amendment was proposed by Maori Party MP, Rahui Katene; the second by Labour MP Charles Chauvel.  Katene’s amendment passed with the support of the National Party and Peter Dunne (all others opposed the amendment in favour of Chauvel’s, ACT opposed both).  What is most interesting about all this is that Chauvel, in support of his amendment, stated that two of the Acts administered by the Authority specifically referred to Te Tiriti, whereas two others only mentioned the principles of Te Tiriti; yet his amendment only recognised the principles and not the text!  In this respect, it was not a particularly well thought-out amendment on his part.  Instead of actively engaging in this issue throughout the process of drafting the Bill, the requirement to take into account Te Tiriti was only inserted at the Committee Stage and both sides of the House failed to agree on the best approach, instead dividing on party lines.

A Proposed Te Tiriti Clause

I will always advocate for the recognition of Te Tiriti to be specific to the issue being dealt with under each piece of legislation.  This approach strengthens the recognition of Maori rights and avoids such rights from being brushed aside by the vagaries of simply requiring the principles of Te Tiriti to be adhered to.  Further, a more effective recognition of Te Tiriti rights demands that the text be referred to in appropriate situations.  This is the clause I would recommend be inserted in legislation:

Te Tiriti o Waitangi

(1) This Act must be interpreted and administered in accordance with both the text and the principles of Te Tiriti o Waitangi.

(2) In accordance with subsection (1), any person or body making decisions under this Act must uphold the rights and interests of Maori by giving effect to the following:

This two-step process (combining the overarching requirement to take into account the text and the principles of Te Tiriti, and the specific actions that must be taken in respect of upholding Maori rights and interest) provides for a more detailed, and ultimately, Mana-enhancing, approach to the recognition of Maori rights in legislation.

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  1. Kia ora Joshua,

    Excellent post.

    Your amendment looks good and I agree that recognition of te Tiriti should be specific to this, and all, legislation. Should both versions be considered? – it has always seemed advantageous that the Crown mentioned ‘guarantee’ in the English version – doesn’t ‘guarantee’ mean ‘ensuring it happens’ or does Article 2 of te Tiriti (potentially) cover that aspect?

  2. As far as I am concerned, there is only one version and that is Te Tiriti so I tend to avoid any analysis which states that the English draft should be considered alongside Te Tiriti. The prior English draft can be referred to in interpreting Te Tiriti (The Vienna Convention of the Interpretation of Treaties allows the use of travaux préparatoires in interpreting treaties), but in the first instance the plain and ordinary meaning of the text of Te Tiriti should be given effect to.

    The question then becomes, as you ask, how do we interpret Article 2? I do not profess to be a Te Reo expert, far from it, so my understanding of Te Tiriti comes from reading the various translations and writings of Maori such as Sir Hugh Kawharu, Patu Hohepa, and also analysis undertaken by Dame Anne Salmond. These suggest, under Article 2, the Queen “agreed to protect” rather than “guaranteed”. I read this as amounting to the same thing, although others may well read it as providing a lessor standard.

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