Rapua ngā tuhinga ruku tātari

The Waitangi Tribunal has released The Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, concluding the inquiry into the Trans-Pacific Partnership Agreement (TPPA) which has proceeded over three stages.

The inquiry panel comprised Judge Michael Doogan (presiding officer), David Cochrane, Professor Susy Frankel, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson. Hearings were held at the Waitangi Tribunal’s hearing room in Wellington from 17 to 19 November 2020.

Originally, stage 3 of the inquiry included issues relating to engagement, secrecy, and data sovereignty. The issues of engagement and secrecy were resolved through mediation and, as a result, the majority of claims were withdrawn. The two remaining claims contained pleadings relevant to the remaining issue; data sovereignty. As such, the report asks one question: What (if any) aspects of the e-commerce chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership are inconsistent with the Crown’s obligations under te Tiriti/the Treaty?

The Tribunal concluded that the risk to Māori interests arising from the electronic commerce (e-commerce) provisions are significant and that reliance on exceptions and exclusions in the agreement to mitigate that risk falls short of the Crown’s duty of active protection. As a result, the Tribunal found  that the Crown has failed to meet the Tiriti/Treaty standard of active protection and that this failure constitutes a breach of the Tiriti/Treaty principles of partnership and active protection.

Having found Tiriti/Treaty breach, the Tribunal came to the conclusion that it would not be appropriate to make recommendations in the circumstances of this case. This is largely because, over the five years since the inquiry began, a significant shift in the Crown’s position in response to claims has ocurred and a number of processes are underway, or in place, to address concerns. Additionally, the resolution of issues relating to engagement and secrecy through mediation gave the Tribunal significant reason to pause and think carefully about what (if any) recommendations it could make that would remove or mitigate prejudice in ways not already addressed as a result of commitments or processes already underway.

Having considered the relief sought by the claimants, the Tribunal declined to recommend that further e-commerce negotiations be suspended until an effective or proper regime had been designed. The Tribunal agreed with the Trade for All Advisory Board that there is a need for a comprehensive review of Aotearoa New Zealand’s policy and that, until such  review is carried out, the Government should avoid locking the country into any fixed negotiating positions. It is the Tribunal’s understanding that the Crown has accepted this recommendation and the review, which  engages Te Taumata and Ngā Toki Whakarururanga, is currently underway. The Tribunal also saw the recently announced Agreement in Principle between the United Kingdom and New Zealand, which will include a chapter on indigenous trade, as indicative of what is possible without freezing international negotiations altogether.

Overall, the Tribunal acknowledged there will be challenges ahead. However, it described these matters as best left for negotiation and dialogue between the Tiriti/Treaty partners in good faith and within the fora and processes now in place.

 

Motiti: Report on the Te Moutere o Motiti Inquiry addresses a claim that the Crown breached the principles of Te Tiriti by failing to recognise Ngā Hapū o te Moutere o Motiti as an independent tribal group who warrant their own Treaty settlement, instead wrongly assuming they were covered by the Ngāti Awa settlement.

The inquiry centred on a 2015–16 process, termed the ‘kinship review’, by which the Crown sought to assess the claimants’ assertion that they are a distinct tribal group, separate from Ngāti Awa, and their historical Treaty claims thus remain unsettled.

The central issue for inquiry was therefore whether the Crown, through its kinship review, properly informed itself of the identity of the tangata whenua of Motiti.

The inquiry panel comprised Judge Miharo Armstrong (presiding), Dr Ann Parsonson, Associate Professor Tom Roa, and Tania Simpson. The hearings began in May 2018 and were held over five separate weeks in Tauranga and Whakatāne, concluding in September 2019.

In order to address the central issue, the Tribunal had to consider the more fundamental question of who the tangata whenua of Motiti are. The Tribunal found that Te Patuwai and Te Whānau a Tauwhao are the tangata whenua of Motiti, and that Te Patuwai affiliate to Ngāti Awa.
In addition, the Tribunal found that any historical claims to Motiti based on descent from Te Hapū were settled as a Ngāti Awa historical claim through the deed of settlement and the Ngāti Awa Claims Settlement Act 2005.

Concerning the kinship review, the Tribunal found that, although its outcome was a correct assessment of the issues before the Crown, the process the Crown used to engage with the tangata of Motiti was flawed. Given the importance of tribal identity and affiliation in te ao Māori, the Crown should have approached the review in a more culturally appropriate way, the Tribunal considered. The Crown fell short of this requirement by failing to fully engage with all groups at the outset, failing to invite all groups to participate in the process’s initial design, and failing to support and engage in a tikanga-based process to resolve the questions under review, instead making an assessment of them itself.

Though the process was flawed, the Tribunal nevertheless found the Crown acted appropriately overall. It conducted the review in a largely open and transparent way, and took corrective action during the review to make it more inclusive, including meeting affected groups earlier than planned, and supporting all groups to discuss the issues with each other. In these and other respects, the Tribunal found the Crown acted in good faith, and ultimately met its duty of consultation to all groups.

Consequently, the Tribunal did not find that the kinship review process, considered as a whole, breached the principles of partnership and equal treatment.

In light of the process’s flaws, however, it offered suggestions about how the Crown should approach disputes about tribal identity in general. It suggested that:

• In the first instance, the Crown’s role is to support all groups concerned to explore these questions themselves and try to reach agreement according to tikanga.
• Tangata whenua should be involved in the design of this process, and in the design of any research process initiated to help resolve the dispute. The Crown should consider how it can assist in this work.
• The Crown should be mindful that its proper role in the research process, in the first instance at least, may be to collate and share relevant information with the parties concerned, rather than to undertake analysis of the information with a view to reaching conclusions itself.
• If discussion between the groups concerned breaks down or yields no agreement, the Crown may make its own assessment of the evidence and comment on whether it considers it conclusive or not, and why. However, where the question of identity is highly contested, the Crown should be very cautious about proceeding. Other independent facilitation or resolution processes may need to be considered.

In response to the Crown’s request for guidance on how to engage with the tangata whenua of Motiti, the Tribunal also offered suggestions about how it should engage with Te Patuwai in respect of the island (its suggestions did not concern the Crown’s engagement with Te Whānau a Tauwhao, as they were not a focus of this inquiry). It suggested that, on all issues concerning Motiti, the Crown should first engage with the Te Patuwai Tribal Committee to receive direction on which entities it should engage with – marae, hapū, or iwi – about that issue. The Te Patuwai Tribal Committee would connect the Crown with the relevant representatives of the marae, the hapū, or the iwi as appropriate.

In June 1991, Archie Taiaroa, on behalf of himself and Māori affiliated to the National Māori Congress, lodged a claim with the Waitangi Tribunal concerning the disposal of surplus New Zealand Railways lands. The Tribunal constituted to hear the claim comprised Judge Eddie Durie (presiding), Professor Gordon Orr, and Georgina Te Heuheu, and it reported on four such cases, Auckland, South Auckland, Wellington and Waikenae.

In 1992, the Crown-Congress Joint Working Party proposed a scheme for the disposal of surplus railways lands on Tamaki isthmus, Auckland. In its Report on Auckland Railway Lands of 21 May 1992, the Tribunal was satisfied that Ngāti Whātua, Ngāti Paoa, Ngātitai, and Waiohua had interests in the area and it found that the sale of the lands on the basis of the agreements made would not be contrary to the principles of the Treaty of Waitangi.