Review of Te Ture Whenua Māori 1993

In the upheaval of the past two months, I had completely forgotten about the ongoing review of Te Ture Whenua Māori 1993.  It appears that a lot of other people also forgot about it because Te Puni Kokiri have announced that the deadline for submissions on their discussion document (available here: http://www.tpk.govt.nz/en/consultation/ttwma/?Action=View) have been pushed back to June 14.

The aim of the exercise is to review the Act with the aim of increasing the utilisation of Māori land.  This is an issue that I have written about previously (available here: http://roiamaori.wordpress.com/2011/04/19/8/)  As I wrote at the time:

Ideally, any review of the Act will allow for a greater role of the collective in relation to Maori land and recognise that the listed owners are not always the only people who have an interest in that land.  A more hapu based approach (or regional approach such as that adopted by the Parininihi ki Waitotara Incorporation) will allow for increased utilisation and development without sacrificing the importance of retaining Maori land in Maori hands.

Changing the law will only go so far, as the MAF report rightly points out – the most effective way to improve the utilisation of Maori land is through improving the skills of those who own and manage the land and improving the access to development finance.

Which is why I have my concerns that the review appears to be favouring reforms that allow for development to occur according to the wishes of “engaged owners” and that the further fragmentation of Māori land should be discouraged.  When you stop and think about that, it sounds awfully similar to the 10 owner policy of the late 1800s.

There are some big issues up for discussion with respect to Māori land.  While several reviews have been conducted since the 1993 Act, none have resulted in substantial reforms.  Our next chance to have a say on how the law is working for the effective retention and utilisation of our last remaining land could be another generation away.  Thankfully, we have all been given a second chance to provide our commentary of the discussion document.  Let us not waste this chance.

I would be interested in hearing from any of my readers who have submitted feedback on the discussion document, or who plan to.  It would be good to korero with you about the proposals and formulate a strong and considered response.

A New Direction: Why I Quit Law

And so ends my legal career. After 5 years of practising law, I have made the decision to pursue a career in another field and expand my horizons. It was not an easy decision to make, but after two weeks in my new role, it is probably one of the best career decisions that I could have made.

Regular readers will know that I spent the last three years working on the Ngā Puhi Waitangi Tribunal District Inquiry, an inquiry which finally commenced hearings earlier this year. This work was all-consuming and, ultimately, developed into a very negative environment to work in – even when you try to operate on the sidelines as much as possible. The entire Waitangi Tribunal process is, simply put, broken. Hearings are constantly delayed, lawyers treat filing deadlines as simply guidelines, the Crown constantly refuses to engage with the evidence during the early stages and is not required to address the specific claims made by claimants, funding is scarce for claimants and their lawyers alike, and the less said about the in-fighting amongst legal counsel the better. People speak of the Treaty Gravy Train that we Māori lawyers are on, but the reality is a stark contrast to the public perception. Even with a supportive firm behind you, a large amount of travel costs, research costs, and even legal work is funded through personal resources. With the Ministry of Justice taking upwards of a year to pay out on an invoice, I know many lawyers who have been driven out of the field or into bankruptcy.

In the Ngā Puhi inquiry, the problems are more severe. The Crown, in pursuing a settlement with one faction of Ngā Puhi, has created massive divisions amongst the Iwi and this filters through into the hearings themselves. At a recent hearing, Titewhai Harawira’s right to speak was challenged almost universally from the floor, and her claim to represent the elders of Ngā Puhi was met with a cry of “bullsh*t” from the crowd. Needless to say, the Tribunal struggled to retain control after that. Even our own are seeking to derail the process, with the NZ Māori Council representatives on the CFRT removing funding assistance for claimants and marae to attend and host the hearings placing the remainder of the 2013 hearings in serious doubt. As I said, the entire Waitangi Tribunal process is broken.

Which is why, and the end of March, I made the decision to leave. It was not an easy decision, but the negativity surrounding this mahi was no longer worth the effort. Thankfully I had a few leads lined up, and at the end of April I took up a position at Deloitte, working in their Accounting and Advisory, and Māori Business Advisory service lines. After two weeks, I can see a lot of potential in this role. My engagement with Māori clients has gone from focusing on very negative issues to more forward-looking opportunities. The plans that some of these organisations have are incredible, and it is such a blessing to be working to assist the many Māori organisations who are creating a better future for our people.

What then for Māori Law and Politics? I will continue writing on Māori legal and political issues because they remain a passion of mine. And, as I learn and develop my skills in the business environment, I aim to write more on Māori economic development issues and really develop the body of work in this field. The potential for developing a Māori economy, based on Māori values is enormous, and the more ideas that we can create, discuss, and share, is going to be a massive benefit to this growth. And there is nothing more exciting than being in a position to assist in this growth.

Farewell, E Te Rangatira

The news of the passing of Labour MP, and former Minister of Māori Affairs, Parekura Horomia, was met with great sadness throughout Aotearoa yesterday. Parekura was a colossus in Māori politics, a tireless worker for East Coast Māori, and a great family man. The fact that I know this even having only met him briefly, is testament of the strong and enduring mana of the man.

Over the coming months, the legacy that he leaves behind for Māori will be debated and discussed – both the good and the bad, but that is a conversation for another day. Today, I join the rest of Aotearoa in sending my aroha nui to his whanau, hapu, friends, and colleagues.

Moe mai ra e te rangatira. Moe mai ra.

A Brief Update

Apologies for the lack of new articles lately, this last month has been very busy.  I will resume regular posting shortly, for now here is a brief update on some exciting mahi that I am working on:

• The Stage Two hearings for the Waitangi Tribunal’s Te Paparahi o Te Raki District Inquiry commence in Waitangi next week and I am looking forward to spending a week up North with my claimants listening to the wonderful korero that is being presented by the Hapū of Ngāpuhi.  This first week is dedicated to the presentation of opening statements from claimant groups who will set out their connections to the land and the key grievances that will be raised during the course of the hearings.  The entire hearing process is scheduled to last for the next three years, and after three years of preparatory work the commencement of hearings is a significant step forward in this process.  Needless to say, I have been busy getting prepared for this first hearing week.
• Second, regular readers will recall that I have been writing a LLM Thesis on Indigenous Sovereignty.  The end is in sight, after a few false finishes!  I am looking to final submission in late April, and will start posting sections from this paper after that date.  I am really excited about this Thesis, and the redefinition of sovereignty that I have set out to achieve.
• Once the LLM is complete, I am going to move onto my next major project and that is to write a book focusing on Māori legal issues.  I have a general outline at the moment, and will look to expand this over the next few months and get started with the writing process around June.  All going well, it will be ready by the end of the year.  I’ll let you know more details once the first part of the book has been confirmed.

As you can see there is a lot going on at the moment, and it does not look like easing up at all during this year.  One of my core goals for 2013 is to look to create and provide as much valuable content as I possibly can and all three projects set out above are a manifestation of that.  As for more recent events, I considered writing a long article on the Supreme Court decision in the Asset Sales case, but ultimately the decision was fairly non-controversial and entirely expected.  I plan to give the entire debate, from proposal to Supreme Court a thorough review in the future, but I would like to do so with a fresh set of eyes.

Ngā mihi

Dr. Vincent O’Malley on Culture

I came across this wonderful quote from Dr. Vincent O’Malley today in a summary of evidence that he has prepared for the Te Paparahi O Te Raki Waitangi Tribunal District Inquiry. There is an ongoing debate over the role and continued usage of custom within indigenous societies, primarily between those who believe that custom should be restricted to that exercised at the time of first contact between indigenous people’s and Europeans, and those who argue that custom is a fluid body of law that can, and should, be modified to adapt to a changing world. Custom, or culture, according to Dr. O’Malley, is something which in Māori society underwent adaptation to the new experience of the British:

Rather than existing in an abstract paradigm, culture is created in the meeting of people’s, just as Māori and Pākehā were products of the meeting of Aotearoa and Europe. This was perhaps less a process of ‘Other-ing’, as Edward Said famously argued, than of ‘Us-ing’. Māori, for example, became more conscious of distinct elements of their own society through increasing contact with Europe and began to re-evaluate cultural principles as a consequence, reassertion some aspects of this even more strongly and modifying or abandoning others.

Source: Dr. Vincent O’Malley, “Summary of ‘The Nature and Extent of Contact and Adaption in Northland. 1769 – 1849.”

I like this quote for two reasons: First, the acknowledgement that culture is a fluid system, capable of adaptation; and, second, that just as Māori culture was influenced by Pākehā culture, so too has Pākehā culture been influenced and, to some extent, created by Māori culture. No, the situation is not ideal, but Pākehā New Zealand has adopted more elements of Māori culture than they would care to admit.

The (Unused) Power of Resumption

The deference being shown by the Waitangi Tribunal towards the Crown is becoming somewhat predictable of late, and the release of it most recent report is unlikely to stem the criticism that it is often failing to act on its core functions.  Today I am going to take a look at the powerful, but as yet unused, ability of the Tribunal to order the resumption and return of land to Māori.

The historical origins of the power of resumption are well known, even if the mechanics of the system are not.  Following the Lands Case in 1987, the Treaty of Waitangi Act and the State Owned Enterprises Act were amended to provide for the recognition of Māori interests in the transfer of land from the Crown to State Owned Enterprises.  Māori were entitled to request a memorial be placed on the title of any land transferred to a State Owned Enterprise to the effect that the land was the subject of a claim for redress under the Treaty of Waitangi Act and that land could thus be resumed by the Crown to be included in any settlement agreement.  The memorial on the title remained even if the land was sold into private ownership.

Furthermore, the Tribunal was, under section 8H of the Treaty of Waitangi Act, granted the power to make binding recommendations to the effect that such land should be resumed by the Crown and returned to the original Māori Hapū/Iwi owners.

This is a sweeping, and unparalleled power for the Tribunal to exercise.  And its refusal to exercise this power demonstrates the limited functionality of the Tribunal within Aotearoa/New Zealand society.  It is not through the lack of a good case that Tribunal refuses to make a binding recommendation of power, but rather through a lack of faith in its own standing and the ability of such a decision to withstand criticism.  You do not need much of an imagination to appreciate the massive uproar from Pākehā who find their land being taken from them by the Crown (with full compensation no less) and returned to their rightful owners.

Which brings us to today, and the release by the Tribunal of its Ngāti Kahu Remedies Report.  Late last year, Ngāti Kahu had sought both binding and non-binding recommendations from the Tribunal in relation to breaches of Te Tiriti o Waitangi identified by the Tribunal in its 1997 Muriwhenua Land Report.  Included among this was the claim for the resumption by the Crown of 114 privately owned properties, all with memorials placed on their title under section 27B of the State Owned Enterprises Act.

The Tribunal’s reasoning for declining the application were numerous, and resembled the shotgun approach to legal analysis whereby you fire as many shots as you can and hope one sticks.  Of primary concern was the fact that other Hapū within the rohe also claimed an interest in some of the properties over which resumption was sought, but this should not lead to an absolute denial of the claim.  As an aside, the Tribunal and the Crown will readily point to shared and competing interests as a way to refuse a claim of resumption, but has in the past just as readily turned a blind eye to shared and competing interests in matters of mandating Iwi/Hapū representatives and the inclusion of land in settlement agreements.

The main issue here, leaving aside the relative merits of the claim by Ngāti Kahu, is that after 25 years, the impact of the Lands Case should be reassessed. It has always been considered a landmark decision for Māori rights in New Zealand, but appears to have little lasting legacy.  Law is more than the formal, legislative, pronouncements and a piece of legislation is worthless if it is not enforced.  While the Tribunal holds the power to resume land either held by State Owned Enterprises, or formerly held by State Owned Enterprises, its inability to exercise the power even one time over 25 years informs us a lot more about the balance of power in Māori-Crown relations than the Lands Case ever did.

Welcome Back

Happy New Year! After a relaxing 3 week break I am now back at work, and back at regular writing for Māori Law and Politics after a rather sporadic approach during the last few months of 2012. Thanks to all my readers who keep coming back despite the lack of new content, your comments and support provide the inspiration to keep going with this project. As part of my new year resolutions I am aiming to devote more time to this blog, starting with a regular weekly posting schedule, with new content on Monday, Wednesday, and Friday.

2013 promises to be another big year in the Māori legal and political spheres. The water rights and asset sales debate continues, with the Supreme Court set to hear the case in late January. I will have an article up on Wednesday discussing the High Court decision and a further post on Friday discussing the various calls for Chief Justice Sian Elias to recuse herself from the hearing. I still believe that Mighty River Power will be partially privatized this year, despite the continuing resistance from various Iwi and Māori groups.

2013 also promises to be a very busy year work wise for me, with the Waitangi Tribunal commencing its hearings in the Te Paparahi O Te Raki District Inquiry in March, and continuing with the Te Rohe Pōtae District Inquiry hearings. I will be writing about my experiences with these Tribunal hearings as the year goes on. And, finally, I am worked on a few big projects associated with this blog, and my legal work, throughout this year. All will be revealed in due course, and I am very excited about the prospects of these projects.