#8419 - Treaty Of Waitangi - LAWS204 Public Law

Treaty of Waitangi The status of the Treaty The Treaty is not part of New Zealand law; the courts cannot enforce the Treaty unless it is incorporated into domestic law by statute. Distinction between rights of "high contracting parties" on international plane against the right of "inhabitants" to enforce rights in municipal courts. - Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] - Still law in NZ: New Zealand Maori Council [1987] 1840 - 1859: Cooperation and mutual benefit 1860 - 1974: Division and disparity: "Treaty is a simple nullity" - Prendergast 1975 - 1977: Negotiation and restitution Resolution of Treaty claims Process Agencies with responsibility Litigation High Court, Appeal Court, Supreme Court Treaty or Maori values incorporated into domestic law Requirements Formal inquiry Waitangi Tribunal Claim must conform to Treaty of Waitangi Act 1975 Mediation Waitangi Tribunal Issues delineated and agreement as to the facts Direct negotiation Minister in Charge of Treaty Negotiations Acceptance as to the negotiations Office of Treaty Settlements Work program The Waitangi Tribunal The Treaty of Waitangi Act 1975, amended in 1985 (jurisdiction --> post 1840 breaches), 1988 (due to lands case), 1992 (jurisdiction restricted due to fisheries) Look at legislation supplement. Membership - s 4 ? The Tribunal consists of a Judge of the High Court or the Chief Judge of the Maori Land Court and between 2 and 20 other members appointed having regard to "the partnership between the 2 parties to the Treaty" and the "person's personal attributes" and their "knowledge of and experience in the different aspects of matters likely to come before the Tribunal" Functions, s 5 ? Inquire into and make recommendations on claims under s 6 ? Make recommendations about specified lands being no longer subject to resumption ? Examine and report on proposed legislation referred under s 8 Functions, s 5(2) ? (2) In exercising any of its functions under this section the Tribunal shall have regard to the two texts of the Treaty set out in Schedule 1 to this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them. Claims jurisdiction, s 6(1) ? Where any Maori claims that he or she, or any group of Maoris of which he or she is a member "is or is likely to be prejudicially affected" by: any ordinance, Act, regulations, order, proclamation, notice, or other statutory instrument made or adopted on or after 6th February 1840; any policy or practice adopted or proposed to be adopted, or any act done or omitted by the Crown, on or after 6th February 1840, that was or is "inconsistent with the principles of the Treaty" If is "well-founded", Tribunal may recommend action to Crown to compensate or remove prejudice ? Rely on honour of the Crown for the Crown to review and act upon recommendations. ? Exception added after the Lands case...? ? (4A) It cannot recommend the return to Maori ownership of any private land; or the acquisition by the Crown of any private land. ? It no longer has jurisdiction re: claims that have already been settled. commercial fisheries ? Jurisdiction is limited into issues which have already been settled upon - to help Crown make settlements full and final. The Waitangi Tribunal's findings are not binding on the Government, nor on the Courts in their proceedings, but are "of great value to the Court" - Lands, Cooke P. Principles of interpreting the treaty - Orakei Report 1987 Interpretation must give effect to the expressed intention of the parties in the light of surrounding circumstances, bearing in mind the overall purpose. Neither text is superior, but considerable weight should be given to Maori version, as: Almost all Maori signatories signed the Maori text The contra preferentem rule (construed against party that drafted the provision) Construed in the sense naturally understood by the natives. Interpreted in the spirit that it was drawn. The Treaty was not a finite contract, but there was room for movement allowing a measure of compromise and change. Art II: Maori retain 'full authority' (tino rangatiratanga) of their lands, homes, and things important to them (taonga); not just possess, but control in accordance with preferences. Art II imposed on the Crown certain duties and responsibilities: 1. Ensures that Maori in fact wished to sell land (pre-emption) 2. Ensure that they were left with sufficient land for maintenance and support or livelihood. Kawanatanga: right to make laws for peace and good order and to protect mana of Maori; less than sovereignty, but does not invalidate it. S 6 Waitangi Act obliges Waitangi Tribunal to determine whether a matter "was or is inconsistent with the principles of the Treaty" - not strict legalities. Treaty = partnership, resting on premise that each partner will act reasonable and in the utmost good faith towards the other. Tino rangitiratanga: full authority Public Page 39 Tino rangitiratanga: full authority Taonga: not limited to property and possessions Kawanatanga: right to make laws for peace, order, to protect mana Maori... "less than" supreme authority NZ Maori Council [1987] ('Lands') Section 9 of the State Owned Enterprises Act 1986: Incorporating clause, incorporated the principles of the Treaty into municipal law: "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the ToW" Section 27 Maori land claims Land transferred to a SOE remains subject to WT claim made before SOE Act came into force. The SOE is barred from transferring it on. But on WT findings, the GG by OIC can require resumption of the land by the Crown and return to Maori, or remove the bar on transferring. Approach to interpreting s 9: S 9's placement in the Act shows it is of paramount importance (with other definition sections) Given context, effect of SoE Act, and the major reform it brings, shouldn't be treated with the 'austerity of tabulated legalism." S 27 cannot be a code for land as this leaves "so little scope for s 9" and: land is too important for s 9 not to refer to it; the wording of s 9 is "plain and unqualified"; s 27 does not cover e.g. Land not subject to a claim submitted in time. S 9 must be held to mean what it says. S 27 given its natural meaning would contravene s 9: S 27 allows the GG to override grievance claims from the Waitangi tribunal, and gives no protection if a grievance claim for the land at issue had not been filed with the WT before the SOE Act. This would mean that, once a grievance claim is complete, it would be impracticable for the Crown to redress it (as it would no longer have the land in its possession). So it would be a breach of the duty to remedy past breaches. Remedy: declarations 1. Transfer without having in place a system to consider whether transfers would be inconsistent with the principles of the Treaty would be unlawful. # Breach not because it proposed to transfer land to Landcorp - it was entitled to adopt and implement that. # But it should have proposed this along with a safety net that is subject to treaty claims ? Needs a system to ensure no breach of principles in respect of all Maori who have an interest in that land. 2. Instructions: To prepare such a scheme, submit to NZMC for agreement, then lodge with CA 3. That the Crown should not go ahead with proposed transfers in the meantime. Could only give this result because P had included an incorporating clause; without it, a reference to the Treaty would be impossible.... Cooke P's obiter on interpreting treaty principles The Treaty is a 'document relating to fundamental rights'; 'Courts will not ascribe to Parliament an intention to permit conduct inconsistent with the principles of the Treaty." The Principles of the Treaty 1. Partnership Overarching principle; the others are derivative from it. "The relationship between the partners creates responsibilities analogous to fiduciary duties" (per Cooke P) "the duty to act reasonably and in the utmost of good faith is not one-sided" (per Cooke P) "The compact ... Rested on the premise that each party would act reasonably and in good faith towards the other" - Richardson J "Each party ... Owed to the other a duty which in civil law partners owe to each other" - Somers J 2. Active protection The duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their land and waters to the fullest extent ... Reasonably practicable." - Cooke P ? Positive promise as because the Treaty gives a guarantee from the Crown. 3. Duty to remedy past breaches If the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant at least some form of redress, unless there are grounds justifying a reasonable Treaty partner in withholding it." - Cooke P If principles are breached, there is a duty to give redress for breach. The right to redress is 'implicit' - Somers J Exists within principle of partnership - this is what partners would give to each other. 4. Consultation "[A duty to consult is] elusive and unworkable." But land transfers to SOEs "is such a major change that, although the Government is clearly entitled to decide on such a policy, as a reasonable Treaty partner it should take the Maori race into its confidence regarding the manner of implementation of that policy" - Cooke P ? A practically manifest principle - can see whether consultation happens or not. ? But not a principle on its own. Flows from partnership: "The responsibility ... To act in good faith and reasonably ... Puts the onus on ... The Crown ... To make an informed decision ... In many cases ... That ... Will require some consultation." - Richardson J "Good faith does not require consultation although it is an obvious way of demonstrating its existence." - Somers J 5. Government ? "The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected Government to follow its chosen policy" - Cooke P. But must do so in a way that won't interfere with partnership, gives protection, keeps Maori informed, and will give redress to breaches. Government can do what it wants to do in terms of policy, but the process by which the Crown does things is controlled under the principles of the treaty. Resulting remedy: Claw back provisions Public Page 40