Kia ora - e mihi ana ki a koutou

This update is provided by Te Paringa Tai (TPT), Simpson Grierson’s specialist Māori Business Group. We work across Simpson Grierson to provide expert legal and strategic advice grounded in tikanga Māori, Te Tiriti o Waitangi, and values including whanaungatanga, manaakitanga, rangatiratanga and hāponotanga.

Spotlight on a TPT Member: Taumata Toki

Last month, Law Graduate, Taumata Toki, spoke at the United Nations Expert Mechanism’s (EMRIP) 17^th session on the rights of Indigenous Peoples in Geneva, Switzerland. Taumata spoke at the session centred on EMRIP’s analysis of constitutions, laws, legislation, policies and judicial decisions by states to achieve the objectives of the United Nations Declaration on the Rights of Indigenous Peoples.

Taumata provided his perspective on how communicating indigenous perspectives through common language will enable states to meet their obligations under Article 38 of UNDRIP, by adopting a common language interpretation of these indigenous principles into legal instruments. The use of common language would help to minimise tension typically created by indigenous perspectives and allow for their application and interpretation at both governance and judicial levels.

However, there is a ‘trade-off’ cost for indigenous communities to achieving this (typically, the use of indigenous language to communicate indigenous perspectives). Taumata drew on his previous work as a Treaty negotiator and project lead for marine restoration initiatives on Aotea (Great Barrier Island) to underscore the operation of this approach.

Taumata described the session as enlightening given the vast number of indigenous groups and government agencies provided submissions on their progress in implementing indigenous perspectives. It was clear that there are many challenges and the need for creative solutions continues to grow.

Law Reform and implementing Coalition Agreement Commitments

The following section shines light on some of the most recent and significant developments concerning te ao Māori and tangata Māori and the implementation of the Coalition agreements.

Māori Wards Bill

On 30 July, the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Bill passed into law. This was a commitment under the ACT and NZ First Coalition agreements with the National Party. The stated purpose of the Bill is to ensure decisions relating to the establishment or dissolution of Māori wards are made by local communities, with the overall aim of restoring local democracy.

The Government’s key concern driving the Bill was the removal, in 2021, of the requirement to hold a binding poll before establishing a Māori ward or constituency. The Bill effectively resets the establishment process, by requiring councils with existing Māori wards or constituencies (created since 2020) to resolve to either retain or disestablish those wards or constituencies, and for any councils who have decided to adopt Māori wards or constituencies for the 2025 elections to rescind or affirm their earlier decisions. For any council that decides to retain or affirm their decisions, a binding poll will be held as part of the 2025 elections. The Waitangi Tribunal determined that the policy behind the Bill was a breach of the Treaty principles of partnership and active protection (see here for the Tribunal’s report).

Corrections Amendment Bill

The previous government had introduced the Correction Amendment Bill, which would have included a Treaty clause in the Corrections Act among other things. Iwi and Māori experts throughout the country were involved in the development of the draft Treaty provisions.

Following the Justice Committee’s deliberations on the Bill, Parliament has removed the proposed Treaty clause from the Bill. The Justice Committee did not give any explanation as to why they recommended its removal. However, the Minister of Corrections said to media that it was removed because a comprehensive review of Treaty provisions in all legislation was part of the coalition agreement between NZ First and the National Party. The Minister said that “Cabinet decided there is no point adding Treaty provisions until that review is done”. Based on that comment, it is unlikely that there will be any further Treaty provisions in bills until a review of all Treaty provisions has been undertaken.

Oranga Tamariki (Repeal of Section 7AA) Amendment Bill

Parliament is currently considering the proposed repeal of Section 7AA of the Oranga Tamariki Act 1989. This was part of the Coalition Agreement between the National Party and ACT. Section 7AA sets out Oranga Tamariki’s practical commitment to the principles of te Tiriti o Waitangi in its operations.

The Government says it wants to refocus Oranga Tamariki on child safety and the wellbeing of children generally, arguing that Section 7AA has led the agency to prioritise cultural factors over the stability of long-term care arrangements. The Waitangi Tribunal found that the proposal to repeal s 7AA of the Oranga Tamariki Act is a breach of the Treaty of Waitangi (te Tiriti o Waitangi). As outlined in the media, critics, including the majority of submissions, also contend that the Bill could hinder progress towards genuine partnership and collaboration between the Crown and Māori.

Overturning the Court of Appeal decision on the Marine and Coastal Area (Takutai Moana) Act 2011

The Government has announced plans to make it more difficult for Māori to assert customary claims on coastlines by amending section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). Last year the Court of Appeal ruled on the test for customary marine title (see our earlier article here). The coalition agreement between the National Party and NZ First included an agreement to amend the MACA Act to make clear Parliament’s original intent of section 58 of the Act. The media are reporting that the proposed amendment leave only 10% of the coastline to be available for customary marine title. The Bill is in the drafting stage and is expected to be introduced to the house in mid-September.

Waitangi Tribunal Record number of urgent claims:

Since the beginning of 2024, the Waitangi Tribunal has experienced a significant increase in urgent inquiries. The Tribunal has granted urgency for six claims - a record number for such a brief period - covering various issues such as the disestablishment of the Māori Health Authority, the repeal of section 7AA of the Oranga Tamariki Act, and the Māori wards referendum. While each inquiry is distinct, they all stem from policies outlined in coalition agreements between the National Party, ACT and NZ First. While the Tribunal’s findings are only recommendatory in nature, the Tribunal serves as a significant platform for amplifying the concerns of te iwi Māori.

Iwi entering in joint ventures with companies

At the recent Iwi Chairs Forum held at Viaduct Events Centre, Ngāti Whātua Ōrākei launched its new Māori-led investment initiative, ‘Te Tomokanga ki Tāmaki’ or ‘The Gateway to Auckland’. 

Ngāti Whātua Ōrākei are known for their creativity, especially in property acquisition and development through partnerships, which has seen the development of significant properties such as the Park Hyatt Hotel, and the incoming Te Tōangaroa Development by Spark Arena. 

Partnering once again with Precinct Properties New Zealand, one of the largest owners and developers of inner-city properties in Auckland and Wellington, Ngāti Whātua Ōrākei plan to transform Auckland’s skyline through the redevelopment of the highly sought after Auckland Downtown Carpark into a 56-storey skyscraper for both commercial and residential use. The joint venture partnership will cover commercial, design and social elements of the development, with a view to achieving real outcomes for Māori. 

We are seeing an increasing number of joint ventures between Māori organisations and private companies. These enable Māori organisations to draw on private capital and commercial capabilities to participate, or increase existing participation, in large commercial markets, such as vertical infrastructure or aquaculture. This can provide economic wellbeing for Māori collectives (including iwi and hapū) to support their communities - and potentially reinforces their relationships with their rohe. Furthermore, partnership with private companies can provide significant commercial benefits for Māori and create an asset base for future commercial projects. Importantly, however, their tikanga should be infused throughout the commercial arrangements. This requires a deep understanding of commercial law and tikanga. At times, this may require widening the relationship between the parties beyond the specific commercial transaction. We expect to see the trend of collaboration between Māori organisations and private companies to continue as Māori organisations start to reimagine their asset portfolios to leverage more commercial opportunities, while pursuing broader intergenerational objectives.

Royal Commission of Inquiry into Abuse in Care

Whanaketia - Through pain and trauma, from darkness to light
The Royal Commission of Inquiry in Abuse in Care’s Final Report was released on 24 July 2024. Of note, the Inquiry produced a summary called "Māori Survivors’ experiences of abuse and neglect in care," which highlights the widespread impact that state and faith-based care, as well as historical and contextual effects of colonisation, urbanisation and structural and institutional racism, have had on Māori survivors’.

Part 6 of the Report sets out that the findings provide strong evidence that there have been numerous infringements of te Titiri principles and fundamental human rights violations across multiple settings.

Part 9 of the Report contains recommendations that concern te Tiriti, UNDRIP, and Māori in care generally. These include: the implementation of a holistic redress scheme; a national apology and public acknowledgement; a review of streets, public amenities, public honours and memorials named after a proven perpetrator; an investigation to determine liability for torture or degrading treatment; the implementation of an ACC scheme; an investigation of unmarked graves and urupā; whānau payments to address intergenerational harm; support to address causes of offending; and legislative changes.

Response to the Final Report: The Government has established the ‘Crown Response Unit’ to coordinate the Government’s response to the Final report. The Government has already determined that it will deliver a public apology to survivors on 12 November 2024.

What’s happening around the motu?

We are also aware of a number of interesting developments occurring across the motu. 

The return of Wairarapa Moana (Wairarapa Lakes) to the ownership of Rangitāne and Ngāti Kahungunu took place over Matariki. The Wairarapa Moana Statutory Board comprising iwi, Crown, and council appointees will govern, administer, and manage Wairarapa Moana and the surrounding reserves. 

Translations in the Treaty Principles Bill: Māori translators penned a letter over the deeply flawed translations in the upcoming Treaty Principles Bill; an agreement included in the ACT and the National Party Coalition Agreement. 

Ngāti Tūwharetoa Geothermal and the Kawerau Mill are investing $20 million to convert the mill’s paper dryers from natural gas to geothermal heat. 

Get in touch

With so much change happening in the Māori legal landscape we want these regular updates to help keep you up-to-date and on top of the issues. We are passionate about this area of law, and love talking about the issues. So, we are always open to any feedback, questions and comments. Kōrero mai!

If you would like to discuss any aspect of this article, and what this might mean for you, please get in touch with one of our experts.

Special thanks to Sarah Gwynn, Latesha Metzler, Ngahuia Muru, Oscar Wilson and Taumata Toki for their assistance in writing this article.