Te Rūnanga-ā-Iwi o Ngāti Kahu Land Claims Portfolio
Report for April 2018
1. Waitangi Tribunal judicial conference 23, 24 April – directions of 27 February
2. National Iwi Chairs Forum hui 2-4 May
• The Waitangi Tribunal postponed the second judicial conference it had called to prepare for the full hearing for binding recommendations.
• National Iwi Chairs Forum will meet in Whanganui from 2nd to 4th May.
1. Waitangi Tribunal second judicial conference 23, 24 April postponed
The Waitangi Tribunal has postponed its second judicial conference until further notice. At our Rūnanga hui in March we resolved to instruct our legal team to refer the Tribunal’s directions of 27 February to the High Court for judicial review. The Tribunal has refused to follow the Court of Appeal’s instructions to simply issue binding recommendations for the Ngāti Kahu claims that were upheld as well-founded in 1997. Instead it has decided to open a new inquiry into Ngāti Kahu’s claims and to invite anyone who may have an interest, whether they are Ngāti Kahu or not, to take part.
That is manifestly unfair and unjust for all those who gave extensive evidence in between 1990 and 1994 and were promised binding recommendations in 1997. Likewise, for those who gave evidence in 2012. We know the Tribunal remains under threat from the government and have seen the lengths Crown Law and the Office of Treaty Settlements will go to in order to stop the Tribunal doing what it is legally required to do.
We believe we have provided sufficient protection (instructions from the Court of Appeal) for the Tribunal to be able to make the binding recommendations that their legislation tells them they must make and that they can now do so without the government abolishing the Tribunal.
The Tribunal cannot ignore instructions from the Court of Appeal without being censured by the higher courts. The Tribunal knows this and chose to ignore a number of warnings. So, they must now await to finding of the High Court. The Tribunal judge is of course very angry that her decision has been questioned. However, she is bound by the legislation to make the binding recommendations we applied for. She cannot misinterpret our application as an application to open a new inquiry into Ngāti Kahu’s claims before binding recommendations are made for the claims already upheld.
2. National Iwi Chairs Forum meeting 2-4 May
The next hui of National Iwi Chairs Forum takes place in Whanganui in the week after our next Rūnanga hui. As such I do not have the papers yet although I can report on the work of Matike Mai Aotearoa and particularly that of the Independent Monitoring Mechanism. The following is a lengthy extract from my most recent report on Matike Mai Aotearoa.
The 2016 report of Matike Mai Aotearoa on the need for and models for constitutional transformation is continuing to be picked and discussed around the country. Some non-governmental organisations have also asked United Nations committees to recommend to the New Zealand government that it engage with Māori in an in-depth and long conversation on the need for constitutional transformation in order to honour Te Tiriti o Waitangi and to implement the United Nations Declaration on the Rights of Indigenous Peoples. The most recent committee to make such a recommendation is the United Nations Committee on Economic, Social and Cultural Rights, a committee of 18 international experts in these areas.
The Independent Monitoring Mechanism (which is part of Matike Mai Aotearoa) prepared a report for this committee based on our July 2017 report to the United Nations Expert Mechanism on the Rights of Indigenous Peoples in Geneva. Dr Carwyn Jones (Ngāti Kahungunu) spoke to our report at a video conference briefing for the committee held in Wellington on 19 March. The briefing was organized by Peace Movement Aotearoa for the twelve non-governmental organisations who provided reports to the committee.
The committee formally met with the New Zealand government in Geneva on 22-23 March and issued its report on 4 April. It is notable that during the interactive dialogue (and also during the video conference briefing), Committee members kept saying they are mystified as to why a developed and comparatively wealthy nation such as New Zealand has such appalling levels of socio-economic deprivation, and especially amongst Maori.
The Committee’s report reflects the recommendations we provided (along with many others), is extremely critical of the government’s treatment of Māori and made a large number of recommendations including the following:
The Committee recommends that the State party:
(a) Take immediate steps, in partnership with Māori representative institutions, to implement the recommendations of the Constitutional Advisory Panel regarding the role of the Treaty of Waitangi within its constitutional arrangements together with the proposals put forward in the (2016) Matike Mai Aotearoa report;
(b) Ensure systematic and full implementation of recommendations put forward by the Waitangi tribunal, including in its landmark report Ko Aotearoa Tēnei;
(c) Develop a national strategy to bring legislation and public policy in line with the provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and ensure adequate provision of the financial and human resources to the UNDRIP Independent Monitoring Mechanism established by the Iwi Chairs Forum;
(d) Considering the Waitangi Tribunal recommendations regarding processes for engaging with Māori, put in place effective mechanisms to ensure meaningful participation of Māori in all decision-making processes affecting their rights. To that end, the State party should ensure that its trade strategy include provisions on transparency and public participation, and its climate change policies are developed and implemented in partnership with Māori, including through their effective participation in the Climate Commission;
(e) Take effective measures to ensure compliance with the requirement of obtaining the free, prior and informed consent of indigenous peoples, notably in the context of extractive and development activities, and conduct social, environmental and human rights impact assessments prior to granting licences for extractive and development activities and during operations;
(f) Consider ratifying the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization.
The Committee recommends that the State party introduce a government-wide strategy to ensure that the nature and impact of unconscious bias is understood by governance bodies and employees at all levels, due to the significant detrimental impact unconscious bias has on Māori in all areas of life. The Committee also recommends that the State party ensure that this strategy takes on board public procurement procedures and is supported by comprehensive training and education as well as effective monitoring mechanisms.
In respect of this recommendation it would have been more accurate to talk about structural and institutionalised racism rather than “unconscious bias” however one of the non-governmental organisations had pursued this wording.
There were also strong recommendations on family violence and child abuse, adequate resourcing to address problems, unemployment, poverty, housing and homelessness, health and education as they impact Māori. The report is available at http://www.converge.org.nz/pma/E-C.12-NZL-CO-4-AUV.pdf. In its concluding statement is the following:
The Committee requests that the State party disseminate the present concluding observations widely, in official and commonly used languages, at all levels of society, particularly among parliamentarians, public officials and judicial authorities, and that it inform the Committee in its next periodic report about the steps taken to implement them. The Committee encourages the State party to engage with the Waitangi Tribunal, New Zealand Human Rights Commission, and non-governmental organizations as well as other members of civil society in the follow-up to the present concluding observations and in the process of consultation at the national level prior to the submission of its next periodic report.
New Zealand’s governments do not have a good record of taking the advice provided by international bodies, especially in respect of Māori and our treaty and constitutional rights. However, it is becoming increasingly embarrassing for the government to constantly face such criticism. We recognise that the public service plays a significant role in maintaining the current unacceptable situation that this United Nations committee found so difficult to comprehend. As such we are not surprised that requests made in January and again in February by the new Minister of Māori Development (to work with the Independent Monitoring Mechanism) and by the new Minister of Treaty Negotiations (to discuss the findings of the research on the treaty claims settlement policy and process) have not been followed up and there have been no meetings.
However last week Te Puni Kōkiri (the Ministry of Māori Development) promised a small contribution towards the work of the Independent Monitoring Mechanism.
The Monitoring Mechanism is continuing work on its 4th report on Government’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples for delivery to the United Nations Expert Mechanism on the Rights of Indigenous Issues at its meeting in Geneva in July. We are keen to have whanau/iwi voices in the report and we have organised workshops to capture their views about our priorities. The Human Rights Commission, who always helps us draft our reports, is facilitating the hui. We are meeting with Ngāti Pāhauwera on 13 April, Ngāti Kahu on 27 April and Ngā Rauru on 30 April. We have yet to organise the other two engagements.
Professor Margaret Mutu
23 April 2018