Fact checking David Round

The first rule of fact checking is that everything you read, hear and see is wrong. The second rule of fact checking is everything you read, hear and see is wrong. The third rule of fact checking is, well, you know what it is. In American politics fact checking is a lucrative business. FactCheck.org, PolitiFact.com and The Fact Checker at the Washington Post are built around verifying the claims and counter-claims of politicians, writers and commentators. PolitiFact uses the Truth-O-Meter while the Washington Post dishes our Pinocchios. Fact checking is less important in New Zealand politics, but the rise of Treaty obstructionists, falsifiers and denialists provide plenty of material for local fact checkers. Example: Treaty Rights a trap in constitution plan by David Round.

Round bases his piece on a tenuous premise: he assumes the Constitutional Review Panel will recommend that the Treaty and Treaty principles be incorporated into supreme law and the government will implement that recommendation. That assumption runs against political logic.* There are no ideological, pragmatic or popular imperatives that demand the government incorporate the Treaty and Treaty principles in to a new constitution. Doing so would amount to legislating against the National Party’s base. Only 57% of New Zealanders agree that the “Treaty is for all New Zealanders” and 59% agree that the Treaty is our founding document – but subtract for Maori responses and that figure is likely to fall below 50%. Those numbers do not demand movement from the government. After all, the Prime Minister is a pragmatist, not a Maori supremacist in a Merril Lynch suit.

For the sake of it, let’s assume that the Prime Minister and National aren’t pragmatists. Even then, neither conservative nor neoliberal ideology would allow a Treaty based constitution. Conservatives value custom, convention and continuity. A Treaty based constitution represents foundational change – the antonym of custom, convention and continuity. The same offence is made against Neoliberalism. Neoliberal dogma prescribes the supremacy of free markets and the individual. A Treaty based constitution transfers significant power to the collective – and a mainly proletarian collective at that – and that could impede the market. I must have a dry imagination, but I can’t see committed conservatives (like English and Burrows) and faithful neoliberals (like Key and Joyce) adopting kaupapa Maori politics.

Pragmatism and ideology aside, Round makes a number of more fundamental mistakes. He claims that the word taonga meant “physical property” in 1840 as opposed to “anything Maori might take a fancy” (sloppy dog-whistle). Well, Te Puni Kokiri holds that taonga “was a more abstract and wide ranging term than the ‘properties’ in the English text”. The article also mentions that taonga has been translated as meaning “treasures” or “all things highly prized”.** Both translations can be read in the abstract. Matthew Palmer writes that taonga “may be more than objects of tangible value”.*** Again, there is an abstract value to the word. In any case, I was taught that taonga has and always has had an abstract meaning. It isn’t confined to western notions of physical property.

Round also claims that “Parliament has been our undisputed supreme lawmaker for centuries”. Well, again, that’s wrong. The United Kingdom Parliament granted self-government to New Zealand in 1852 and created the “General Assembly of New Zealand”. However, the UK Act establishing our General Assembly placed substantive restrictions on that body’s law making power. Academic Bruce Harris wrote that the Act “ensured that the local legislature would remain subservient to that at Westminster”.**** Our Parliament didn’t acquire full law-making power until 1947 with the passage of the Statute of Westminster Adoption Act 1947.***** So, actually, our Parliament has only “been our undisputed supreme law maker” for going on 66 years. Well less than the “centuries” that Round seems to think. No law lecturer should make such a rudimentary mistake.

Round also says that:

The Treaty's words are now twisted to mean their exact opposite. The Treaty said Maori and settler were to be equals under the Queen's government. In Captain Hobson's words, "Now we are one people". But by the modern "principles", "Maori" are not the Queen's subjects but her "partners" in governing New Zealand.

Round doesn’t provide any example of what words are “twisted to mean their exact opposite”. That’s because he can’t. The meaning of the Treaty is well established. Round also misrepresents what is meant by partnership. The Treaty is probably best viewed as a “developing social contract” rather than a tight legal contract (like a commercial contract). Partnership, in the sense of a social contract, doesn’t mean Maori should or do have a 50/50 say in how New Zealand is run, rather the Crown and Maori (broadly speaking) must act reasonably and in good faith. Round is deliberately scaremongering.

Round goes on and on, providing fallacious examples of how the Treaty principles will doom the country. It’s John Ansell-esque. He couldn’t resist the racist slur that “a lot of child support – must surely be a Treaty right”. He expounds on the effects of Treaty principles like he’s some sort of Oracle. It’s bat-shit crazy. I can handle strong opposition to the Treaty, but it has to be well reasoned - not half-baked Anglophilia.

Ultimately, the most worrying piece of the article isn’t anything Round wrote – it’s this:

David Round teaches law at the University of Canterbury.

Post-Script: I had a laugh where Round accuses Chief Justice Elias of treason and labels her a "usurper". He didn't provide an example of her treason, just threw down a platitude.

*For a lesson in political logic, American politics provides an instructive example. The Democratic Party enjoyed a near monopoly on the Southern States from the 1870s to the 1960s. In part due to the party’s defence of slavery, partly due to their defence of Jim Crow laws and partly due to economic policies that were perceived to favour Southern interests and industry. However, after Democratic President Lyndon Johnson signed the Civil Rights Act in 1964, he is supposed to have turned to his press secretary and said that the Democrats “have lost the South for a generation.” Johnson went against political logic (but not the moral imperative) and electoral realignment followed. Southern conservatives who opposed civil rights and integration fled to the Republicans Party. As a result, the Republicans implemented their “Southern strategy” and have dominated presidential politics from Nixon to Ford, Reagan, Bush and Bush II. Without such a powerful moral imperative, why would the Nats risk electoral realignment.

** See He Tirohanga o Kawa kite Tiriti o Waitangi (Wellington, 2001).

***See M S R Palmer The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008).

****Refer to B V Harris “The Law-Making Powers of the New Zealand General Assembly: Time to Think About Change” (1984) 5 Otago Law Review 565-571 (Harris is a former Dean of Law at Otago and Auckland and a Harvard graduate).

*****That same year the UK Parliament passed the New Zealand Constitution (Amendment) Act allowing our Parliament to regulate its own composition. The final step in the acquisition of full law-making powers.  

Fisking the Herald

I like South Park. One of my favourite episodes is “Raising the Bar” where a caricature of James Cameron leads an undersea expedition to, literally, raise the bar. The episode is notable because the show went meta. After Cameron raises the bar from the bottom of the ocean and Michelle Obama beats the shit out of Cartman, Kyle states that maybe South Park is responsible for lowering the bar. It was a nice way for the show’s creators to acknowledge that maybe they’re part of the problem. On a similar note it would be nice for the writer of this editorial to acknowledge his or her part in lowering the standard of editorial writing and argument in New Zealand. Admittedly, the bar couldn’t be set much lower, but it’s comforting to know there is still room before the Herald, the Dom Post and New Zealand’s other dailies hit the ocean floor. Let’s start at the beginning:

The Prime Minister was never more wrong last year than when he declared the Government could ignore a recommendation of the Waitangi Tribunal.

In reality, the Prime Minister was perfectly correct. The Waitangi Tribunal is a permanent commission of inquiry rather than a Court. Therefore, the Tribunal’s recommendations don’t bind the Crown (with rare exceptions) or any other parties. In contrast, the Courts can make rulings that bind the parties involved. The Tribunal exercises little to no soft power either. More often than not the political consequences of ignoring the Tribunal are positive, think of the foreshore and seabed when the government ignored the Tribunal and won approval from many New Zealanders.

It needs to be remembered that the case is not about who owns water.

No, it’s not. However, later in the piece the writer says that “the recognition (iwi) sought (is) customary ownership of the water”. Make your mind up – “the case is not about who owns water” and the case is about “customary ownership of the water” are two mutually exclusive statements.

It (the case) is about whether the ownership of dams and power stations will make it harder for iwi to be compensated if they ever convince a government they own the water.

No. The issue centred on whether or not the transformation from an SOE to a MOM company would affect the Crown’s ability to provide rights redress and recognition and, as a result, breach either s9 of the SOE Act or s45Q of the Public Finance Amendment Act (the Treaty clauses). It was also at issue whether or not there was a sufficient nexus to justify the Courts intervening*. The ownership of dams and power stations isn’t at issue, it’s the MOM proposal and its effect on rights redress and recognition.

By putting the cart before the horse the case has forced the Crown to assume the water claim has succeeded and to argue that the Government would be able to require a private power company to pay a royalty or some other form of compensation.

No, the case isn’t concerned with private companies. The Crown will retain a majority shareholding in Mighty River Power. Crown Counsel argued that “the transfer and sale of shares does not affect relevant rights in that it does not impair the Crown’s ability to provide redress or rights recognition”. Private companies are irrelevant.

The "shares-plus" arrangement was immediately ruled out by the Government as contrary to commercial law and compromising the main purpose of asset sales: accountability to the share market.

Firstly, the idea of shares-plus was rejected because of perceived impracticalities. Secondly, asset sales had nothing to do with “accountability to the share market”. In the government's own words, asset sales will contribute to:

The Future Investment Fund to reinvest the proceeds of our partial share sales programme. We expect that selling a minority stake in these companies will return $5 billion to $7 billion to the Government. We’ll spend every dollar of this on more assets that New Zealanders need – such as schools and hospitals – without having to borrow more from offshore lenders to fund our infrastructure needs.

The writer continues:

The Maori Council and co-claimants could not convince High Court judge Ronald Young that shares-plus had merit. He reasoned that since Mighty River Power did not own the water that it had been given a right to use, a shareholding in the company would not give the iwi the recognition they sought, customary ownership of the water.

Iwi were not looking for the Court to establish Maori customary ownership of water. At paragrapgh [52] onwards Justice Young sets out the remedies sought and they are 1) an injunction against the partial privatisation of Mighty River Power and 2) a declaration that the Court should take no further action.

Lord Cooke, author of the guiding judgment on the Treaty's application, said it required each party to act "reasonably and in good faith within their respective spheres". Assets that generate hydro or geothermal electricity are unquestionably in the government sphere.

That quote is misattributed. It was Richardson J who delivered this line and the writer misunderstands what is meant by “spheres”. The use of “spheres” does not mean there is a dividing line between things Maori and things British, or things owned and controlled by Maori and things owned and controlled by the Crown. I interpret the quote as meaning that Maori and the Crown will act reasonably and in good faith in their respective roles in the Treaty relationship. Maori will maintain “a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable cooperation” and the Crown will maintain the duties of partnership, active protection, redress and so on.

*See paragraph [166] of the judgment. 

No, Justice Young, it's no king hit

I live with six boys; all Pakeha and all studying at Victoria. We’re a close and diverse group (if not ethnically). We range from religious to atheist, liberal to conservative and loose to sensible. Some of us were public schooled and others were private schooled and the North Island/South Island split is 5-2. Interestingly, one flatmate interned for David Cunliffe in 2011, another comes from a prominent National Party family and two others used to work for Donna Hall at Woodward Law. As you can imagine, the latter two have had some involvement and exposure to the water claim and the water case. Last week they told me that “Red Ron”, the supposedly liberal High Court Justice, appears to be leaning towards the Crown. One flatmate described him as ‘dismissive’ and ‘pre-determined’.

I don’t think this is surprising. After all, the Crown is right in arguing that the Courts cannot constrain Parliament. In the context of the water case, this means that the Courts cannot stop or declare invalid a decision or action properly made under the Public Finance Act Amendment Act 2012 (PFA). What's more, the Courts are reluctant to rule on matters of government policy. Asset sales are, I think it’s fair to say, the government’s main policy plank. As one example, in Curtis v Minister of Defence (2002) the Court refused to interfere with the Labour government’s decision to disband the air combat wing. The Court felt that it was a political not legal issue. You could reasonably argue the same principle applies.

However, emphasis on however, the orthodox rules are blurred where the Treaty is involved. Crown Law acknowledged as much in an article on judicial review where they state that “tensions arise… when disputes involve important political, Treaty or human rights issues"*. Despite the Crown’s argument that the Courts cannot review Parliament, the Maori Council and other claimants are on solid ground where they argue 1) transferring SOEs will be done via an order-in-council (an executive act) and is therefore reviewable. After all, the claimants are not asking the Court to review the merits of the PFA, but review an executive action taken under the Act AND 2) the case is directly analogous to the landmark (bad pun) case of New Zealand Maori Council v Attorney General, also known as the ‘Lands case’.

At its core, judicial review is about what the executive can lawfully do. The Maori Council and others are arguing, as I have in the past, that the government is in breach of the Treaty clause in the PFA if they remove Mighty River Power (MRP) and other SOEs from the State Owned Enterprises Act. In English, the government will be acting unlawfully. After all, there is a clear breach of the Treaty, and therefore s45(Q)(1), if a mechanism to recognise Maori rights and interests is not created and implemented. The Waitangi Tribunal held as much and even the most rudimentary application of the Lands case, broadcasting assets case** and radio frequencies case*** would find as much. An application of other Waitangi Tribunal decisions, for example Wai 1071****, will yield similar conclusions. Off the top of my head the government has failed to actively protect “Maori interests specified in the Treaty to the fullest extent”, they have failed to give sufficiently “high priority for Maori interests” and act “reasonably and in the utmost good faith”. Failing to recognise Maori wai rights and interests is a breach of the principle of active protection, failing to properly consult is a breach of the partnership principle and, I would argue, could be considered as procedural impropriety under judicial review.

I think this case will not turn, or does not turn, on what is justiciable. The case is more to do with whether privatising Mighty River Power will affect the government’s ability to recognise and compensate for the use and/or breach of Maori rights and interests. Ngai Tahu answer in the negative, but they are wrong. The Waitangi Tribunal was right to find that private shareholders are likely to push against any deal with Maori, especially if that deal decreases share prices. Why wouldn't they? The Tribunal said:

Partial privatisation will make a crucial difference to the Crown’s ability to act. Private shareholders will resist the introduction of any kind of levy, charge, resource rental or royalty that impacts on the profitability of the company and (as a result) their income and the value of their shares

Considering all of the arguments, it should be hard for Justice Young to rule against the Maori claimants. Although he could rule against us***** the Lands case is persuasive, if not binding. In that case the Court of Appeal declared that transferring land to SOEs, without establishing a mechanism to protect treaty claims to that land, would be unlawful under the Treaty clause of the SOE act. Sound familiar? Well, it is. The Maori claimants in the wai case are arguing (essentially) that there will be a breach of the Treaty if a mechanism to recognise and compensate for the use and/or breach of Maori rights and interests is not created.

When considering his decision, Justice Young should keep at the forefront of his mind Robin Cooke who said:

(the) principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.

That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the Court will be to insist that is honoured.

Whatever way Justice Young falls, we can be sure this case will be going to the appellant Courts.

Post-script: Crown Law is probably wrong in arguing that the wai issue is not justiciable (i.e. that the Court cannot rule on it because Parliament is the supreme law maker). Most Treaty litigation involves judicial review. In Treaty cases the government is usually exercising a power authorised by Parliament, but that power was or is used illegally. The approach the Courts have usually taken in judicial review is to make orders to get the parties negotiating. This is consistent with the approach in Canada, the jurisdiction closest to us on indigenous rights. The Canadian Chief Justice has said that “it is through negotiated settlements… that we will achieve… reconciliation of the pre-existence of aboriginal society (Morgan: read aboriginal rights) with the sovereignty of the Crown”.

Post-script 2: The Maori Council and other claimants can reasonably argue that international law, specifically the UN Declaration on the Rights of Indigenous Peoples, is a mandatory relevant consideration and that when interpreting the PFA and the Crown’s actions the Courts must strive for consistency with the declaration. The Supreme Court has shown that it is receptive to international law when reviewing domestic law (see Zaoui v Attorney-General (No 2 ) [2006] 1 NZLR 289; (2005) 7 HRNZ 860; [2005] NZSC 38 (Zaoui)). The declaration holds at Article 26 that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. At Article 32 it is held that “states shall consult and cooperate in good faith with the indigenous peoples… in order to obtain their free and informed consent prior to the approval of any project affecting their lands… and other resources, particularly in connection with the development utilization or exploration if mineral, water or other resources”.

*Crown Law Office. 2005. The Judge over your shoulder – A guide to judicial review of administrative decisions

**New Zealand Maori Council v Attorney-General (1994) (Privy Council)

***Attorney-General v New Zealand Maori Council (1991) (Court of Appeal)

****Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (2004)

*****Justice Young might find that the government is acting lawfully i.e. there is no breach of the Treaty clause because the sale of MRP will not affect the ability to recognise Maori rights and interests. Alternatively, Justice Young could use Crown Law’s “king hit” submission and find that a ruling against the government could amount to a ruling against Parliament and Parliament is supreme etc.

Why Maori own the water: further comments

This is from a post in February this year when news of the Maori Council lodging the water claim first broke. In light of events this week, I think the post is topical: 


----------

Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not:

 Merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.
There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Government to water down s9 (updated)

Claire Trevett reports on the Maori Party’s partial victory:

The Maori Party has claimed a partial victory after a government promise to include a Treaty clause for partial state asset sales - but will not quite abandon the possibility it will walk out until it sees the final clause.

After three weeks of consulting, the Government yesterday said it would include a Treaty of Waitangi clause in new legislation to cover companies in which minority stakes were sold to private investors.

The Maori Party warned it could walk out on the Government if Treaty rights were not properly recognised in the new legislation and said its preference was for section nine to be used or, if that was impossible, to include a new clause which carried equal weight and scope.

The Maori Party comes out of this looking strong. The party took a stand on principle and strong armed the government – or at least that’s how it looks. In reality, the government is not making a firm commitment to retaining s9. Instead, the government will use a new section that retains the “concepts” of s9. The word “concepts” is very, very vague and, if the government is not careful, could open a whole new can of worms and take Treaty jurisprudence in a direction that no one intended. S9 as it stands is well developed and well understood, so why opt for a different clause? To me, this looks like an attempt to water down the clause and send the right signals to investors. Bill English has admitted as much saying that this was not a back down, but about providing certainty for investors.

However, a new clause would provide less certainty for investors. S9 as it stands is well developed and well understood. It is more dangerous inserting a new clause as there would be uncertainty as to how it applies. In time Maori would take the issue to Court and, in my opinion, the Court would interpret the new clause broadly and in line with s9. The Courts have always taken a favourable approach to interpreting the Treaty. After all, s9, read treaty clauses, amount to a "constitutional guarantee".

The Maori Party is claiming this as an example of what can be achieved “at the table”. Fair enough, without a position in the government the Maori Party would have no leverage and no avenue to lobby Cabinet and the PM. However, this is an example of how an imperative of the table is to sell out. The Maori Party has not achieved complete victory. The new clause will, most probably, be watered down. The Maori Party claims that they’ll walkout if the clause is not sufficiently strong. Well, I’ll believe that when I see it. As Marty Mars points out, they didn’t walk on the weak solution to the foreshore and seabed, so why walk out now.

UPDATE: Joshua Hitchcock, an expert on Treaty law, blogs that s9 (as it stands) is unsatisfactory and essentially "meaningless". He provides a very interesting perspective.

Comments on the water claim

John Roughan is a good columnist, but I think he misses the mark with this offering:

Protesters forget that Maori have to act in good faith too.

(On the partnership principle): "rested on the premise that each party would act reasonably and in good faith towards the other within their respective spheres".

Lands, forests, fisheries and treasured things were expressly in the Maori sphere. Government and good order were entrusted to the Crown. Cooke stressed that the obligation to act "reasonably and in good faith" was reciprocal. It applied no less to Maori than the Government.
Is it "reasonable" of them to ask that Meridian, Genesis, Mighty River Power and Solid Energy should continue to be bound by an obligation on the Crown to observe Treaty principles? I think so; the Crown will remain their major shareholder.

Is it reasonable that those companies might be obliged to consider Maori interests if they ever want to change the flow of rivers or drown land? I think so.

On the Maori side, is it acting "reasonably and in good faith" to invoke the Treaty simply to oppose partial asset sales? I don't think so.

Management of the state's assets is in the Government's sphere.

Protesters forget the Treaty cuts both ways. With good faith on both sides, the Government and the Maori Party can take another big step.

I don't agree. Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not “merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.

There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.  

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Ultimately, I think Roughan’s piece is based on a shaky premise. Maori are not opposing for the sake of opposing. There are legitimate concerns around Maori rights and the Crown’s actions. Surely, if Maori were opposing for the sake of it, then other iwi would join the fight. This isn’t the case though, in fact iwi have refused to join the legal battle, preferring instead to take a more diplomatic route. Whether this is the right choice, well time will tell, in any circumstance I think it signals the growing maturity of Maori as a people. Then again, it could mean that the iwi elite are trying to gun for private gains for themselves and their iwi, rather than Maori as a whole.

Treaty won't stop asset sales (updated)

I was in a rush to write this post, so it's not as considered as I'd like. 


Despite Hone Harawira’s enthusiasm, I doubt s9 of the SOE Act can stop asset sales. From TVNZ:

Mana Party leader Hone Harawira is making a bold claim that the Treaty of Waitangi can be used to stop state owned asset sales and is calling on Maori to reject the necessary law change at a series of Government-organised Hui.

The Government has planned a series of hui to consult with Maori on legislative changes it considers necessary in order to float the minority shareholdings of four State Owned Enterprises (SOEs).

"Section 9 of the State Owned Enterprises Act says that the Crown must not act in a manner inconsistent with the Treaty. And to sell off assets that Maori still have claim over is inconsistent with the Treaty," Harawira told TV ONE's Breakfast.

"The Treaty is stopping the Government from flogging off the nation's assets, so they're gonna throw the Treaty out," claims Harawira.

The Waitangi Tribunal (WT) sets out the following principles: reciprocity and partnership, active protection, equity and options and redress. The Court follows, roughly speaking, the same principles. However, unlike the WT, the Court explicitly recognises the Crown’s right to govern and the duty to consult as stand alone principles.

A Maori claimant could lodge a claim with the WT, but a WT decision would have no binding effect. A claim would have to be filed in the High Court. In my opinion, a case exists, but not a very strong one.

If I were the claimant, I’d argue that the Crown is breaching the principle of active protection. Under this principle the Crown must take active steps to ensure Maori interests are protected. The sale of SOE’s runs contrary to Maori interests as, arguably, the Crown’s ability to offer redress is affected through the loss ongoing revenue and the loss of land that could be included in any settlement. A broader argument is that Maori consumers will be affected through higher power prices and decreased government services in the long run. The late Sir Robin Cooker, NZ’s greatest jurist, held that the Crown’s duty is “not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”. As you can see, a strong obligation rests on the Crown.

The sale of state power companies will also impact on Maori relationships with their taonga. The WT holds that “The Treaty guarantee of rangatiratanga requires a high priority for Maori interests when proposed works may impact on Maori taonga. If the Crown is ever to be justified in exercising it’s power to govern in a manner which is inconsistent with and overrides the fundamental rights guaranteed to Maori in Article II, it should be only in exceptional circumstances and as a last resort in the national interest”. Reducing the deficit is in the national interest, however on any objective measure asset sales are not the option of last resort.

Selling state power companies will also affect the relationship Maori have with their waterways (i.e taonga). Maori will have fewer rights when it comes to determining the status and use of rivers, tributaries, dams and so on.

The debate around what, if any, rights Maori have in relation to water is still not settled. Given the Crown does not know exactly what rights Maori have, or should have, it would be unfair to pass off water rights to private entities. It is incumbent upon the Crown to actively give affect to and protect Maori property rights and management rights, however if water rights are passed onto private interests Maori customary rights will be diminished against private property rights. Clearly, if the government passes on water rights to private interests this will run against the principle of active protection.

These are just some of the arguments that can be made against the government. I have not taken into account previous decisions of the Court that may favour or harm a claim against the government. At the end of the day, the Crown has a right to govern as they see fit. I come back to Sir Cooke who said “the principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles”. Hone Harawira can hope that the Treaty will stop asset sales, but if you ask me he’s hoping in vein.

UPDATE: I should add that it makes perfect commercial sense to exempt a treaty clause, meaning a s9 type clause, from the new legislation needed to sell shares in the SOEs. A treaty clause would add some uncertainty around the assets and drive the share price down. However, refusing to insert a treaty clause in the new legislation is probably a breach of the principles.