Developments in the Waitangi Tribunal - mixed ownership model claim

A previous ALB article - Shifting Sands: A New Approach to Ownership of the Foreshore and Seabed (September 2011), discussed the impact of the Marine and Coastal Area Act 2011, which provides for Māori to establish "customary marine title" in New Zealand’s common foreshore and seabed (subject to public access and other interests).

Another quintessentially New Zealand jurisdiction is that of the Waitangi Tribunal, established in 1975 to hear claims by Māori that the Crown has failed to honour the commitments it made in the Treaty of Waitangi.  Under that 1840 Treaty the Crown guaranteed to Māori, in exchange for sovereignty over New Zealand, the exclusive use and undisturbed possession of their lands, estates, forests, fisheries and other "taonga" (treasured things).

Progress of Waitangi Tribunal claims

Over 2,300 claims have been filed with the Waitangi Tribunal, covering a wide range of historical and more recent Crown actions (although claims filed now must be contemporary in nature, relating to post-September 1992 matters).

The Government has an aspirational goal of completing full and final settlements of all historical Treaty grievances by 2014.  To work through the claims in a systematic and timely manner, the Tribunal has been implementing a "district inquiry" method, which involves hearing concurrently and reporting on all claims falling within a particular geographic area.

Now, though, the Tribunal is reassessing its priorities in light of an unprecedented number of applications that particular claims be heard urgently.  On 26 April 2012 the Chairperson wrote to all Tribunal participants to advise that urgent hearings and remedies hearings would be afforded the highest priority for the Tribunal, which would in turn affect its long-term district inquiry programme.

New Zealand Supreme Court decision in Haronga

Another development concerning the Waitangi Tribunal’s procedures is the recent Supreme Court decision in Haronga v Waitangi Tribunal [2011] NZSC 53.

In that case the Supreme Court examined the Tribunal’s common practice of declining to make specific determinations about a claim in favour of encouraging the Crown and Māori to explore a negotiated settlement.  The Court in Haronga ruled that the Tribunal, having established the claimant’s application to be well-founded, was then required to "determine" the claim by recording its decision on whether or not to grant the remedy sought, and on what terms.

It remains to be seen what impact Haronga will have on the Treaty claims and settlement processes, but we can expect claimants to rely on the decision in seeking to have their cases determined promptly.

Maori claims regarding partial privatisation, freshwater and geothermal resources

Two claims being considered urgently by the Tribunal were recently brought by the New Zealand Māori Council (and others) and relate to the Government’s proposed sale of a minority share in four State-owned enterprises: Mighty River Power, Solid Energy, Meridian Energy, and Genesis Energy.

The Wai 2357 claim argues that partial privatisation of the SOEs would prevent Māori with well-founded Treaty claims from securing a future share in those companies as redress.  The claimants seek recommendations that the Crown not proceed with its policy until either all Māori claims relating to geothermal resources and fresh water are resolved, or a compromise is reached.

The Wai 2358 claim relates more broadly to Crown actions and policies in respect of freshwater and geothermal resources, and asserts that the Crown has breached the Treaty by:

• Using the common law to alienate Māori from these taonga resources without their prior consent
• Enacting legislation that fails adequately to recognise Māori interests in those resources, such as the Resource Management Act 1991
• Adopting a Treaty settlement policy that does not provide adequate redress to Māori, such as compensation or strong legal rights.

The Tribunal is asked to recommend that the Crown amend the RMA and other relevant legislation to provide for an appropriate level of control for Māori over freshwater and geothermal resources, and compensate Māori for the past and future use of those resources.

The Tribunal has previously reported, in its district inquiries, on claims relating to Māori interests in geothermal resources and fresh water.  The Tribunal has found the Crown to have breached the Treaty in various ways, and recommended that the Crown and Māori explore remedies including amendments to the RMA and compensation.

The Tribunal has decided to consolidate the Wai 2357 and Wai 2358 claims and hear them urgently to enable the Crown to factor the Tribunal’s views into:

• The proposed sale of shares in the four SOEs, with the earliest sale scheduled to commence in the third quarter of 2012
• The Fresh Start for Fresh Water programme and the proposed reform of freshwater management and governance, with Ministerial decisions scheduled for late 2012
• Proposed resource management reforms with respect to geothermal resources, with a process scheduled to begin in 2013.

The first stage of the Tribunal’s inquiry is likely to be held in mid-July 2012, with a Tribunal report to follow shortly thereafter.

This article was written by David Randal for the Australasian Legal Business Magazine (issue 10.5, May 2012).  David is a senior associate in the Wellington office of Buddle Findlay, and specialises in environmental and Māori law.