Tēnei te mihi ki a koutou katoa

He ahakoa au ka mate, tēnā te aute i whakatokia e au ki te tara o te whare.
Although I may be killed, there is an aute tree which I have planted to the side of my house.

Te Paringa Tai (TPT) begin this update by acknowledging the passing of Kiingi Tuheitia Pootatau Te Wherowhero VII and the ascension of Te Arikiniui Kuini Ngā Wai Hono i te Pō. Haere, haere, haere atu rā e te rangatira. Takoto mai i te arikitanga o te pō, kei waenganui i o tūpuna. Tū mai, tū mai, tū mai rā e te Kuini!

Treaty Principles Bill

Associate Justice Minister David Seymour remains steadfast in his pursuit of introducing the Treaty Principles Bill (Bill) into the House. In a recent press release, Mr Seymour said that “[t]he … Bill provides an opportunity for Parliament, rather than the courts, to define the principles of the Treaty, including establishing that every person is equal before the law.” Cabinet has agreed for the Bill to include the principles of Civil Government, Rights of Hapū and Iwi Māori, and the Right to Equality, amongst other principles.

It is intended for the Bill to be drafted and introduced to Parliament before the end of 2024. There is no doubt that the Bill will attract significant attention - both for and against - post its introduction to the House. Already, scholars and reporters, including Carwyn Jones and Max Harris, from across the motu (country) have provided their whakaaro (thoughts or opinions) on the Bill.

The Waitangi Tribunal has also recently released its interim report Ngā Mātāpono: The Principles where it found that both the Treaty Principles Bill policy and Treaty Clause Review policy breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the article two guarantee of rangatiratanga. The Tribunal recommended that:

• The Bill should be abandoned;
• The Crown should constitute a Cabinet Māori-Crown relations committee that has oversight of the Crown’s Treaty/Tiriti policies;
• The Treaty Clause Review policy should be put on hold while it is reconceptualised through collaboration and co-design with Māori; and
• In an effort to prevent future prejudice, the Crown should consider a process in partnership with Māori to undo the damage to the Māori-Crown relationship and restore confidence in the honour of the Crown.

Supreme Court determines Māori Land Court jurisdiction over post-settlement governance entities

The Supreme Court’s recent decision in Nikora v Kruger is an important one as it gives the Māori Land Court jurisdiction over Māori trusts acting as post-settlement governance entities (PSGEs). The decision comes after a long dispute between Tūhoe’s PSGE, Tūhoe - Te Ura Taumata Trust (TUT) and Te Kaunihera Kaumātua o Tūhoe about the election of two of TUT’s trustees. The Supreme Court reinstated the Māori Land Court orders that TUT must hold fresh elections for the two trustees. We are currently preparing a more comprehensive article on this decision, but in the meantime you can read the full decision here.

Recent developments concerning the MACA Act

We take a brief look at Parliament’s law reform and the Supreme Court’s recent decision in this space.

Marine and Coastal Area (Takutai Moana) Amendment Bill

As signposted in our previous Māori Legal Update, the Government announced plans to amend the MACA Act to make it more difficult for to successfully assert Māori assert customary claims on coastlines. The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill (MACA Bill) has since been released and has undergone its first reading. It is now with the Select Committee.

The MACA Bill seeks to amend the MACA Act to:

1. Overturn the Court of Appeal’s ruling in Re Edwards (Whakatōhea): The MACA Bill will amend the preamble to overturn the Court of Appeal and High Court’s reasoning in Re Edwards and all subsequent High Court decisions, where they relate to the test for CMT (section 58). Read our earlier FYI on the Court of Appeal’s decision here.
2. Re-define the section 58 test for CMT: The new test is far more stringent, requiring an applicant group to prove they had the intention and ability to control an area (to the exclusion of others) from 1840 to the present day without substantial interruption.

Supreme Court orders Crown to pay prospective costs to four hapū

While the MACA Bill progresses, Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hapū o Te Whakatōhea (Te Kāhui), being a group of four hapu, along with several others, are appealing to the Supreme Court regarding recognition of CMT and protected customary rights under the MACA Act. The appeal will be the first time Aotearoa’s highest court will consider the interpretation and application of the MACA Act. Although it will be interesting to see how this case develops given the MACA Bill, as discussed above.

The Supreme Court granted Te Kāhui’s application for a prospective costs order (PCO) against the Crown - ordering the Crown to pay $97,500 to Te Kāhui in advance of the appeal. This decision followed funding cuts to the Takutai Moana Financial Assistance Scheme. The Court commented that a PCO for advanced costs in public-interest litigation is only made in exceptional circumstances where necessary in the interests of justice. You can read the full decision here.

What’s happening around the motu? 

There have also been a number of interesting events and developments across the motu including:

• A new tool for iwi data - Te Whata: Māori-designed platform Te Whata has shown that iwi populations have increased by an average of 46% during the last 10 years. Te Whata aims to enhance Māori well-being by helping iwi, hapū, and whānau access and use Māori data. Of note, Te Whata’s data shows the largest three iwi being Ngāpuhi (184,470), Ngāti Porou (102,480) and Ngāti Kahungunu (95,751), although smaller iwi populations have seen the greatest growth.
• Entrepreneur and iwi leader recognised in list of AI elite: Peter-Lucas Jones, CEO of Te Hiku Media, the award-winning iwi broadcasting organisation and iwi innovation hub based in Kaitaia, has been named in the TIME100 AI list of 2024 for his work on preserving te reo Māori through AI technology. Te Hiku Media's automatic speech-to-text model now transcribes te reo Māori with 92% accuracy, outperforming similar attempts by major international tech companies. There will a range of important ethical issues to work through (including how to maintain Māori data sovereignty) but this is an exciting development for the Māori tech world and for indigenous peoples as a whole.
• Mahuru Māori me Te Wiki o Te Reo Māori: Ake Ake Ake - A Forever Language, the theme for Te Wiki o te Reo Māori 2024, set a strong tone for the annual celebration in Aotearoa for te reo Māori. At Simpson Grierson, we invited barrister Rohario Murray to share her experiences of tikanga Māori in practice, and Olympic medallist Eliza McCartney to share her journey with te reo Māori and what te reo Māori means to her. We also facilitated ‘Wero o te wiki’ each week of Mahuru Māori where we challenged our offices to learn and practice everyday sayings and phrases in te reo Māori.
• Te Hunga Rōia Māori o Aotearoa Hui-ā-Tau: Last month, Te Hunga Rōia Māori o Aotearoa hosted Hui-ā-Tau in Whakatāne. TPT members Jo-Anne Knight, Nick Wilson, Keanu Britton-Rua, Conor Masila, Ngahuia Muru and Bessie Isaachsen attended along with judges, barristers, partners, and other Māori community leaders from across the motu. Tā Hirini Moko Mead gifted the theme for this year’s hui, drawing from a waiata tohutohu (song of advice) composed by Te Kooti Arikirangi Te Tūruki and encouraging reflection on the ongoing discussions surrounding Māori rights and mana Motuhake. The theme was emphasised through the kōrero shared on the importance of taking care when introducing tikanga Māori in the Courts and engaging people with the right knowledge and expertise.

Get in touch

Click here to find out more about Te Paringa Tai, Simpson Grierson’s specialist Māori Business Group, or get in touch with one of our experts if you would like to discuss any aspect of this update.

Special thanks to Avary Patutama, Oscar Wilson, Tawhiwhi Watson and Te Teira Pitama for their assistance in writing this update.