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.

The 2012 Māori Law and Politics Winners and Losers List

As we reach the end of 2012 it is time to look back and reflect on an eventful year in Māori Politics.  No one issue has dominated this year quite like the water rights and asset sales issue and those involved contribute in a large way to the make up of my winners and losers list for 2012.

The Winners

The Iwi Leaders Group

Without a doubt the big winners from 2012, the Iwi Leaders Group have established themselves as the go-to national Māori body for Crown engagement on national issues.  They have established a good working relationship with the Government over the past 18 months, and have clearly adopted the approach of working with Government to achieve progress for Māori rights over a more antagonistic approach.  While many question their standing and their beliefs (occasionally referred to disparagingly as the “Iwi Elite”), you cannot overlook the fact that this self-selected group comprise the elected leaders of many of the major Iwi in the country. With this comes a lot of weight, and a lot of influence with the Government.

Paula Bennett 

This may come as a surprise to many of my readers, but I consider Paula Bennett to be the Māori politician of the year.  You might question her kaupapa, but to survive the MSD security breach scandal and to oversee the most drastic reform to our welfare system since Jenny Shipley in the early 1990s is no easy task.  Add to that the ease with which she brushes aside the attacks from Jacinda Ardern in the House and you have a Māori politician who appears brilliant at her job.  With the remainder of the National Party Māori caucus either failing to fire (Henare, T) or making a complete fool of themselves (Parata, H), having one competent Māori in the National front bench, regardless of her politics, is something to celebrate.

Louisa Wall

Runner-up in the Māori politician of the year awards, Louisa Wall has shown herself to be the exemplary opposition M.P.  Having such a contentious bill pass its first reading with a massive majority is no easy task for an opposition M.P, what makes her all the more remarkable is the effort she  undertook to sit down with opponents, listen to their concerns, and quietly convince them of her case.  A future Minister of Māori Affairs, if not destined for higher honours.

Tariana Turia

It is hard to think of a Māori politician who has made as great an impact as Tariana Turia has over her 18 years in Parliament.  Her decision to cross the floor on the Foreshore and Seabed Act led to the formation of not one, but two Kaupapa Māori political parties and a renewed influence of Māori politicians in the House.  While Whanau Ora is a mere shadow of her initial dream, her efforts to curb smoking in Aotearoa have been immense and given even the big Tobacco companies something to worry about.  Her decision to retire marks the great cross roads in Māori politics.  Can the Māori Party survive without her, or will the independent Māori voice represented by the Māori Party and Te Mana be dragged back into the welcoming arms of the Labour Party?

The National Party

Yes, the National Party are one of the big winners of 2012.  While the partial asset sale programme has been delayed, a crushing victory in the High Court a few weeks ago means that it will take a miracle in January to bring about a final halt to their key policy platform.  Ructions within Ngāpuhi aside, they have also made great strides in settling historical grievance claims with Hapū and Iwi and an historic Tuhoe settlement is on the cards for early 2014 – a mere two years after it lay in tatters.

Rahui Katene

With the retirement of Tariana Turia in 2014, Rahui Katene looks set to succeed to her Te Tai Hauaurau electorate seat and, by extension, the co-leadership of the Māori Party.  Her work with the New Zealand Māori Council, and a renewed effort working at the ground level, has seen her restore the mana lost when she was defeated at last years election.  Expect to see and hear more from Rahui in 2013 as the Māori Party look to position her as Tariana’s natural successor.

The Losers

The New Zealand Māori Council

Fought a good fight before the Waitangi Tribunal, but ultimately failed in its quest to unite Te Ao Māori behind its cause and were dealt a massive defeat by Justice Young in the High Court.  While they have been granted leave to appeal to the Supreme Court in 2013 it will be a tough ask convincing the Supreme Court to bring a halt to such an important economic policy for the Government.

Hekia Parata

Abysmal and embarrassing best sum up the performance of Hekia Parata in 2012.  Will be very lucky to survive the next Cabinet reshuffle.

Te Ururoa Flavell

While there is no word yet on what Pita Sharples plans to do post-2014, it is likely that with Tariana Turia stepping down, he will stay on for one more term to see in the transition.  It has proven to be a long wait for Te Ururoa Flavell to take over as the male co-leader of the Māori Party, a position he has coveted for a long time.  The question now is if, not when, he will succeed Pita.

Hone Harawira

It has been a quiet year for Hone, the only notable event I can recall is his arrest and even then no one really seemed to be too outraged about that.  It appears that the media, and public at large, only make room for one rebel-with-a-cause in New Zealand politics and this year that mantle has been taken up by Kim Dotcom.

The National/Act Government

Making the list again is the National Party, this time joined with its Government partner, ACT.  By all accounts the Government has handled the asset sales and water rights issue very poorly.  Instead of fronting the issue and putting in place a clear separation between the two issues, it found itself on the back foot with the seemingly misguide plan to remove the Treaty of Waitangi protections from the legislation setting up the mixed-ownership model.  Having the Waitangi Tribunal rule against you and face massive public criticism from Māori over its consultation, or lack thereof, in relation to the Shares Plus issue, were low points for this Government.

The Waitangi Tribunal

While it is no surprise that the Government ignored the Tribunal’s Stage I report on Freshwater Issues and Asset Sales, the fact that it did leaves no doubt about the role and status of the Waitangi Tribunal in national politics.

A World Indigenous Lawyers Conference: The Definitive View

I have promised many people over the course of the past two weeks that I will provide a review of the annual Te Hunga Roia Māori, Hui-a-Tau (The Māori Law Society Annual Conference) which also co-existed as a World Indigenous Lawyers Conference (WILC 2012), held at the University of Waikato in early September.  Not one to disappoint, here is the definitive review of the conference:

It was awesome. Come along next year and see for yourself!

Stay tuned, there is more to come over the coming days.

Parliament Discusses the “Shares-Plus” Consultation Hui

The following exchange took place in Parliament this afternoon in relation to the Government’s “Shares-Plus” consultation hui:

Question 3 : Wednesday 19 September 2012

3. TE URUROA FLAVELL (Māori Party—Waiariki)—to the Minister for Treaty of Waitangi Negotiations: Does he agree that “Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done”; if so, how do the Government’s consultation hui about the “shares plus” proposal align with this definition?

Hon CHRISTOPHER FINLAYSON (Minister for Treaty of Waitangi Negotiations): Yes; and totally. Is that succinct enough?

Mr SPEAKER: Order! Before I come back to the honourable member, it might be, but it is not a good enough answer to a primary question. The Minister will now give a considered answer, because the Standing Orders actually require a Minister to give a constructive answer to a primary question—[Interruption]—I am on my feet; Ministers should just take a deep breath for a moment—where there are no words in that question that are in any way provocative. There are no such words in the question whatsoever. I do not believe that is an acceptable answer to the House. I accept that it is an answer, but it is not acceptable, given the Standing Orders, in that Ministers are expected to provide information in answering questions, and that answer did not provide any information.

Hon CHRISTOPHER FINLAYSON: “Succinct” is obviously elastic.

Mr SPEAKER: Order! [Interruption] Order! I am on my feet. The Minister will desist from that line of action. He will just treat the House with the respect it deserves.

Hon CHRISTOPHER FINLAYSON The quote draws on the finding of the Court of Appeal in 1992 in a case involving  Wellington International Airport, reported I think in [1993] 1 NZLR 671. What that decision confirms is that the party consulting can have a working plan in mind, and that is the position here. The Government has a preliminary view on “shares plus” and a working plan based on that preliminary view, but it has an open mind and is willing to change its mind if submissions are persuasive—succinct and to the point.

Mr SPEAKER: I thank the Minister.

Te Ururoa Flavell: Does the Minister support the view of the Deputy Prime Minister that “The Government has already said that such a shareholding would be unattractive, unnecessary, and unworkable …”; if so, what assurance can he give Māori that the Government is not entering into consultation with a  predetermined outcome in mind?

Hon CHRISTOPHER FINLAYSON: Yes, I can give that member and the House an assurance that the Government has an open mind. As I said, the Government has formed a preliminary view about “shares plus”, and that view is noted in its letters on the Treasury website, and it is in that context that the Deputy Prime Minister’s comments are to be understood. Again, the view is preliminary, and the Government is consulting in good faith in order to hear whether there are other views about “shares plus”.

Te Ururoa Flavell: Does the Minister agree with Māori lawyer Joshua Hitchcock that “In many respects the Government is treating this as a pro-forma exercise of consultation. It is merely ticking the boxes to satisfy the Court in the event of a challenge to the sale process that it has followed due process.”; if not, why not?

Hon CHRISTOPHER FINLAYSON: No, I certainly do not. It is not a matter of simply ticking boxes, and Governments have learnt a lot since the decision of the Court of Appeal in 1993. The Government has a preliminary view. It wants to test that view, and that is why the Deputy Prime Minister—and next week the Deputy Prime Minister and I—will be having these hui, one of which was very well attended in  Taupō today. The Government acknowledges it may not have thought of everything. It wants to hear other views, and then it will make a decision, and that is why we will have a consultation.

Hon Peter Dunne: Given the terse and succinct nature of the Minister’s answer, could he elaborate on what the Government’s preliminary view is?

Hon CHRISTOPHER FINLAYSON: Yes. The Government’s preliminary view, as set out on the website and in Treasury papers, and in the view of the Deputy Prime Minister, is that there are more minuses than pluses with “shares plus”. Take, for example, the suggestion that minority shareholders could have some say in the appointment of directors to the company, who would then act on the wishes of the minority shareholders. Well, in terms of company law, that is quite problematic because directors, once appointed, owe a duty to the company, not to the people who put them there.

Not the deliberate change in language.  The Deputy Prime Minister’s press release was rather unequivocal on the Government’s opinion of the “Shares-Plus” concept, to hear the Attorney General now speak of it as merely a preliminary view appears to be an attempt to fix an unintentional mistake.

 

 

 

“Shares-Plus” Consultation

Today marks the commencement of the Government’s consultation round on the “shares plus” concept raised in the Waitangi Tribunal’s interim report into the New Zealand Māori Council’s freshwater and state-owned enterprise claim.  I spoke briefly about the Government’s duty to consult on Newstalk ZB this morning, but time constraints resulted in a rather truncated analysis.

The Duty to Consult

The duty to consult is a long-standing principle of natural justice.  It is as extension of the common law right of Audi Alteram Partem (the right to be heard) and arose as Government decision-making extending beyond decisions primarily affecting individuals to decisions affecting larger numbers of people.

Initially, the Courts did not recognise any duty to consult implicit in Te Tiriti o Waitangi.  In he landmark 1987 Lands case, the Court of Appeal defined consultation with Māori as being elusive and unworkable, although a precise reading of these comments can see that the nature of the consultation referring to by the Court was full consultation with Māori on all issues.  Framed as an all-encompassing duty to consult in all situations it is easy to see why such a duty can be elusive and unworkable.  The Court of Appeal would make this distinction clear in the Forests case (NZMC v Attorney-General [1989] 2 NZLR 142) when it held that the duty of good faith requires consultation on “truly major issues”

The Tribunal continued to develop the nature of the duty to consult during the 1990s and in the 2002 Ahu Moana: Agriculture and Marine Farming Report (Wai 953), noted that:

It is now well established that, in a matter of particular significance to Māori, the Crown has a duty to act reasonably, to make informed decisions, and to turn its mind to the future needs of Māori.  This cannot be done without consultation.  Full discussion must take place with Māori before the Crown makes any decisions on matters that may impinge upon the rangatiratanga of a tribe or hapū in relation to its taonga.

The duty is, however, not absolute.  The Court of Appeal, in Wellington International Airport, held that consultation does not mean agreement, nor does it envisage negotiations towards an agreement.  It does, however, require more than a prior notification that the Government intends to pursue a particular course of action.

For this discussion, the following principles can be distilled:

• The Government has a duty to consult with Māori on issues that impinge on the exercise of tino rangatiratanga;
• Mere notification of a planned course of action is not sufficient;
• Consultation is a genuine, open-minded, discussion between the Government and affected Māori; and
• Consultation does not mean agreement.

The Government’s “Shares-Plus” Consultation Process

There are some positives and some negatives of the current process being undertaken by the Government.

The positives:

• The Government has made an effort to go out and talk to those iwi directly affected by the planned sell down of the power companies.  The Hui are being held in the rohe where the hydroelectric dams exist and impact on the rangatiratanga of local iwi and hapū.
• The Government is engaging in this process with the Deputy Prime Minister, with facilitation to be shared by Sir Wira Gardiner and a chair appointed by local Māori.  A high-level discussion with the politicians making the decisions is more positive than one with officials only.

The negatives:

• Information on the hui was only released last night. I presume that the Government has made contact with the local hapū in advance, the short public notification leaves little time for those within the area to organise themselves and present a detailed argument for the adoption of the shares plus model.
• In many respects the Government is treating this as a pro-forma exercise of consultation. It is merely ticking the boxes to satisfy the Court in the event of a challenge to the sale process that it has followed due process.

This second negative could come back to haunt this Government.  While consultation does mean agreement, the Government cannot enter into consultation with a pre-determined outcome in mind.  The Press Release yesterday referred to the “shares-plus” concept as follows:

The Government has already said that such a shareholding would be unattractive, unnecessary and unworkable but now that the matter has been raised we will talk to affected Iwi about it.

The Tainui Boycott

Finally, news came through this morning that Waikato-Tainui will not be attending the first consultation hui in Hamilton this afternoon.  Tainui are clearly of the opinion that these issues require a national hui but their boycott is misguided for two reasons.  The first is that these hui are designed to be very specific in the issues that are discussed and a national hui is not an appropriate place to discuss the “shares-plus” concept.  Māori input in the operations and management of hydro-electric power companies should be limited to those iwi and hapū who are directly affected by the companies, i.e: those that have hydro damns on their waterways. A national hui with the Government on freshwater management is important and should be held, but that issue is completely different to the issue under discussion today. Tainui risk being shut out of this process completely.

That point leads directly onto the second problem with Tainui’s approach.  The High Court, in the recent decision of Greenpeace v Minister of Energy and Resources [2012] NZHC 1422, commented directly on this issue.  The Court noted that the Government held two consultation rounds and that the local hapū, Te Whanau-a-Apanui, did not make any submissions as to concern for its taonga.  The Court noted that Te Whanau-a-Apanui were provided with advance notice of the consultation and received an offer of a face-to-face discussion.  The hapū did not actively engage with the Ministry.  The Court stated that consultation and good faith is a two-way street, and requires the engagement of both parties.  The Court concluded by stating that:

If Te Whanau-a-Apanui had the concerns it now puts forward, on the basis of later opinion advice, it would have raised them then [at the time of consultation].  In choosing not to actively participate substantively or respond to the request to consult, it cannot complain now.