It won’t be of any surprise that the Treaty Principles Bill has been top of mind for Te Paringa Tai (read our FYI on what you need to know here). The Bill is currently with the Justice Committee who are accepting submissions until 7 January 2025. If you would like assistance in making a submission, please get in touch.

He aha tō mātou whakaaro? What do we think?

As tangata whenua, tangata Tiriti, and lawyers, the Bill raises several key concerns. For us, te Tiriti represents a negotiated arrangement that envisaged an ordered and peaceful foundation for Aotearoa.  Unfortunately, that has not occurred. The Treaty Principles provide a way of determining how that arrangement should work in contemporary Aotearoa, in the light of our colonial history and its ongoing ramifications. The fact that we rely on judicial bodies to do this through the development and application of the principles is appropriate in our view.  

Moreover, concerns about their lack of clear definition are overstated.   Firstly, there are clear and succinct statements of the principles found in court decisions and Waitangi Tribunal Reports. Secondly, there is nothing necessarily wrong or unusual in not having the law set out in crystal clear terms in legislation. Aotearoa’s unwritten constitution is located in a variety of legislation, court judgments, guidelines and unwritten conventions. It is common for the Courts to have to develop legal principles based on legislation, for example, the legal principles of when a Minister’s decision is unreasonable.

Turning to the proposed principles themselves, we share many of the concerns raised by others including Sir Edward Taihakurei Durie, members of the King’s Counsel and Dr Carwyn Jones. In particular, the proposed use of “tino rangatiratanga” and the proposal to ‘lock down’ the collective rights of iwi and hapū through Treaty settlements.  

Aotearoa is a liberal democracy where it is a given that individuals enjoy equal legal and political rights. But, in our view, this does not mean that our constitutional foundations or the collective rights of iwi and hapū (as affirmed in the Treaty) should be ignored in law.  Aotearoa is unique. While not perfect (no constitutional arrangements are) the application of Treaty principles over our recent history offer opportunities to address historical and contemporary issues in a positive and constructive ways. If we are to take a proper look at the Treaty and its place in our constitution then, in our view, that should be done as part of a comprehensive process that considers other fundamental issues such as who the head of state should be and whether there should be environmental rights. Of course, that would need to happen thorough a robust and fair process.

What does the Waitangi Tribunal have to say?

On 5 November 2024, the Waitangi Tribunal released Ngā Mātāpono/The Principles: Part II of the Interim Report of the Tomokia Ngā Tatau o Matangireia – The Constitutional Kaupapa Inquiry Panel on The Crown’s Treaty Principles Bill and Treaty Clause Review Policies. The updated report, which adds in a new chapter, responds to further evidence provided to the Tribunal on the policy development process for the proposed Bill since May 2024, including the Cabinet paper on the proposed Bill. The Tribunal has stood by its findings that the Bill is in breach of the Treaty / te Tiriti and continues to recommend that the Bill be abandoned (but if not, that the Bill should be referred to the Tribunal by Parliament in accordance with section 8(2) of the Treaty of Waitangi Act 1975).

In landmark High Court judgment, Stafford v Attorney-General ^[1], Justice Edwards found multiple breaches of the Crown’s fiduciary duty for the treatment of land known as ‘Te Tauihu o te Waka a Māui’ or ‘the prow of Māui’s canoe’, located in Te Tau Ihu (Nelson and Tasman) region. The customary owners of this land were those who whakapapa to any of the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata (Customary Owners). The descendants of these owners are represented by the plaintiff, Mr Stafford.

In 1839, customary landowners sold approximately 151,000 acres to the New Zealand Company under the condition that 10%, or 15,100 acres, would be reserved in perpetuity for the benefit of the Māori owners and their descendants. This land is referred to as the “Tenths”. It was intended that the Tenths would be held on trust for the Customary Owners and managed as an endowment for their future benefit. The Tenths were either to be leased to settlers or used for the building of schools or hospitals for the exclusive use of the Customary Owners. It included specific protections for wāhi tapu such as papakāinga, urupā, cultivations, and other sacred sites. This was not done – the Crown reserved less than 3,000 of the promised 15,100 acres. This resulted in the High Court ruling that the Crown had breached its fiduciary duties multiple times.

The case was referred back to the High Court from the Supreme Court in 2017. The Supreme Court found that the Crown owed fiduciary duties to reserve the 15,100 acres of the Tenths and to exclude pā, urupā and cultivations.^[2] These duties required the Crown to undertake positive steps that were prescriptive and executory in nature. These duties were not owed by the Crown to Māori at large nor did they spring from te Tiriti o Waitangi. Instead, they are fiduciary duties arising out of a specific land transaction. It was found that two transactions involved clear examples of Tenths being taken and not replaced despite the fiduciary duty owing. The Crown was also found to have expropriated pā, urupā and cultivations for itself. The High Court was then required to determine the outstanding legal issues. 

Interestingly, the High Court entertained the conceptual possibility of the common law accommodating a claim for cultural loss. Justice Edwards acknowledged the strong policy reasons in support of such a claim given the context of Māori and their relationship to land but this must be contrasted to the governments belief that such loss is best addressed outside the court room. Additionally, the High Court was concerned with development of this ground without sufficient information, and stressed the need for caution. Evidence was not presented that connected the claim for cultural loss sufficiently to the Tenths or on how compensation for past cultural loss would tie to “transformative” impact of the return of the land. For a matter so closely associated with tikanga and the relationship between Māori and their whenua, the court indicated that a wānanga of tikanga experts, similar to that of the Ellis Supreme Court decision,^[3] would be required. As such, the claim for cultural loss was dismissed. However, the High Court considered a successful claim for cultural loss was a possibility within the common law if there was sufficient evidence and time for assessment of the relevant policy issues, the interrelationship with existing equitable principles, and tikanga implications.

Finally, the High Court suggested that there would likely be a significant sum of money awarded against the Crown. Justice Edwards relied on previous damage awards against the Crown in private law litigation, that have risen to hundreds of millions of dollars. The High Court determined that the Crown must pay the current market value for any shortfall in the Tenths that the Crown no longer owned. Other relief owed included, for land still in possession of the Crown, a requirement to pay a value representative of the beneficial use of the land and pay a sum which reflects the value of the opportunity of benefit calculated by reference to loss rental.

The Attorney-General has appealed the judgment (see here). We will be watching to see how this landmark case continues to play out. 

The Environment Select Committee released its report on the Fast-track Approvals Bill (FTAB) last month. Of note is the FTAB’s exclusion of a Treaty clause to “take into account” or “give effect to” Te Tiriti o Waitangi. Rather, the FTAB focuses on Treaty settlement entities (TSEs) but nothing more general or Treaty-specific. In determining the fast-track applications, the Panel members will need to consider Treaty principles as part of its assessment criteria in some instances. The standard for Treaty principles relies on the principal Acts, such as section 8 of the Resource Management Act 1991. However, this is not for all applications – for example, approvals under the Conservation Act 1987 do not need to consider section 4 of the Conservation Act (which provides that all decision-makers have to give effect to Treaty principles). What is also of interest for tāngata Māori is that the Environment Select Committee has recommended to remove an iwi representative as a mandatory requirement on an Expert Panel.

Both referral and substantive applications are dealt with in the Bill. In terms of engagement with tāngata Māori, the applicant / authorised person must consult with any relevant iwi authorities, hapū, and TSEs, and any relevant applicant groups with applications for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). The application type determines how thorough the engagement with tāngata Māori is during the Fast-Track process.  

In addition, the Bill endeavours to preserve the legal effect of relevant documents, by requiring the Expert Panel to give equivalent effect to any documents referred to in any legislation or joint management agreement that is relevant to the approval. This may require reference to Treaty settlements, iwi management plans, joint management agreements, and any recognised customary rights.

National Freshwater and Geothermal Resources (Wai 2358): This inquiry commenced in 2012 and relates to Māori proprietary rights in freshwater bodies and geothermal resources. The next hearing for this inquiry is set down for 9-13 December 2024 in Rotorua.  

Military Veterans Kaupapa Inquiry (Wai 2500): This inquiry is hearing all claims involving past military service undertaken directly for or on behalf of the Crown in right of New Zealand. The claimant hearing weeks have concluded. The Inquiry will now prepare to move onto the next stage of proceedings, which is a series of three Crown hearings which will be the Tribunal’s chance to hear the Crown’s perspective in relation to the evidence heard from claimants regarding campaigns and operations from the 1950s through to recent, modern-day operations.

Health Services and Outcomes Inquiry (Wai 2575): This inquiry is hearing claims concerning grievances relating to health services and outcomes that are of national significance. The Inquiry commenced in 2017, and has already one stage looking into primary health care and two urgent stages looking into the COVID-19 response and the proposal to disestablish the Māori Health Authority. It is now up to the hearing stage of stage two, looking into claims relating to Māori with lived experience of disability, mental health (including suicide and self-harm), and alcohol, tobacco and substance abuse. The latest hearing was heard between 2-6 December 2024 in Porirua. 

Mana Wāhine Kaupapa Inquiry (Wai 2700): This inquiry is hearing claims which allege prejudice to wāhine Māori as a result of Treaty breaches by the Crown. It is currently at the planning and research stage with reports due to be completed by 24 December 2024. 

Housing Policy and Services Inquiry (Wai 2750): This inquiry is hearing grievance claims concerning housing policy and services. The inquiry commenced in September 2020 and has completed one stage looking into Māori homelessness. The remaining claims will be heard in the second stage. It is currently at the pre-hearing interlocutory and research stage. 

Te Rau o te Tika: the Justice System Inquiry (Wai 3060): This inquiry will hear claims concerning grievances relating to the justice system and the administration of justice. The inquiry commenced in April 2022 and is currently at the planning and research stage. 

Constitutional Kaupapa Inquiry (Wai 3300): This inquiry will hear claims concerning grievances relating to the constitution, self-government, and the electoral system. The inquiry commenced in December 2022 and is currently at the planning and research stage. The next event related to this inquiry is a wānanga on 2-3 December 2024. This inquiry has also been inquiring into the Treaty Principles Bill, which it has released two interim reports on. 

Porirua ki Manawātu Inquiry (Wai 2200): This inquiry relates to approximately 117 treaty claims in the Porirua ki Manawatū district. Some of the broad issues involved include land loss within the rohe, public works issues, economic disadvantage and stagnation and acknowledgement of customary rights. The Inquiry is at hearing stage and the next event is a judicial conference in Wellington scheduled for 16 December 2024. 

Taihape: Rangitīkei ki Rangipō District Inquiry (Wai 2180): This inquiry is looking into 46 treaty claims covering issues on the nineteenth century and twentieth century land use, management and alienation, environmental issues, Mātauranga Māori issues, and public works issues. Hearings were completed in 2021, and the inquiry is now at the report writing stage. 

North-Eastern Bay of Plenty Inquiry (Wai 1750): This inquiry involves approximately 30 claims from Whakatōhea and Ngāi Tai claimant groups. Some of the broad issues involved include political engagement between the North-Eastern Bay of Plenty hapū and iwi and the Crown, impacts of land confiscation, public works takings, local government issues, environmental issues and health and socio-economic issues. The inquiry is at the hearing stage.

There have been numerous important and interesting events and developments across the motu including:  

• Toitū te Tiriti Hikoi: Tuesday 19 November was a momentous day for both tāngata Māori and tāngata Tiriti who participated in Te Hīkoi ki Paremata mō te Tiriti o Waitangi, in response to the Treaty Principles Bill. It was also a momentous day in the history of our nation. The hīkoi formed in Waitangi Park, making its way down Lambton Quay and onto Parliament Grounds around midday – te whenua o Ngāti Toa Rangatira. The total number of participants is unknown, but some reports suggest numbers in excess of 50,000 were involved in the peaceful protest that was, with several thousand more streaming in from across the motu. Several kaimahi nō Simpson Grierson ki Pōneke were proudly a part of the contingent that congregated in front of the Beehive in a display of kotahitanga against the Bill. Toitū te Tiriti, Toitū He Whakaputanga, Toitū te mana motuhake!
• Ngāti Whātua waka in Barcelona: The partnership between Ngāti Whātua Ōrākei, Emirates, and Team New Zealand was a resounding success, showcasing Māori culture on the global stage. By displaying the traditional waka, Te Kawau, and performing kapa haka in Barcelona during the America's Cup, the team shared New Zealand's vibrant history with the world. This collaboration demonstrated the value of partnerships between iwi and international corporate entities, promoting cross-cultural understanding and celebration. The campaign was capped off in triumph, as Emirates Team New Zealand successfully defended the America's Cup.
• Supercritical Geothermal Resourcing (SGE): SGE is an advanced form of geothermal energy that has recently been abundantly found in the Taupō Volcanic Zone and on whenua Māori. The government have announced $60m in funding to further SGE research. Leading SGE scientists have emphasised the importance of having support from mana whenua before any drilling occurs.