Tuesday, May 24, 2011

Judicialising the Treaty

The history of Treaty-related court cases in New Zealand is one of failed attempts at enforcement. Right from the beginning, with R v Symonds, Maori have gone to court in an effort to force the crown to obey the Treaty and return land that was stolen from them. While claims under the doctrine of aboriginal title met with some success (at least until Justice Prendergast's ruling in Wi Parata v the Bishop of Wellington), the general position on the Treaty itself was that it had no legal force unless it was incorporated into domestic law. That process of incorporation really began in the 1980's, when Treaty clauses started being added to legislation, and as a result Maori were able to win significant cases over broadcasting rights, SOE assets, and fisheries.

A consequence of the SOE case (New Zealand Maori Council v Attorney General (1987)) was that the Treaty of Waitangi Act 1975 was amended to give the Waitangi Tribunal judicial powers to order the return of land held (or previously held) by SOEs or in crown forests. This power has apparently only rarely been used. But on Friday, the Supreme Court handed down a judgement which may see it being used a lot more. Alan Haronga v Waitangi Tribunal and Others [summary, full judgement] has a messy history involving a successful Treaty claim and subsequent troubles in settlement talks, but ultimately it challenged the refusal of the Waitangi Tribunal to grant an urgent hearing on the use of the power to return land. The Supreme Court upheld the appeal, on the basis that the Tribunal has a statutory obligation to hear claims, and that in this case there was a real chance of the claim being frustrated if no hearing was granted. In the short term, this means that Mr Haronga gets his hearing, and ultimately a decision. But its the longer term consequences which are interesting. The Supreme Court ruled that:

Where the Tribunal has decided a claim is well-founded and the remedy sought is return of Crown forest land, the inquiry must address whether the land is to be returned to Maori ownership, any terms and conditions of return, and, if applicable, to which Maori or group of Maori the land is to be returned.
(My emphasis)

Which means that the Tribunal is going to have to decide on the return of land in every case before it (and may face further appeals from parties who have not yet settled as well). They can prioritise cases, and adjourn to allow the parties to reach a settlement, but ultimately they must consider it if asked. Which is going to turn the government's settlement model, and its billion dollar fiscal cap, upside down. Claimants will have the whip hand if their claim includes crown land; if settlement talks are not going well, they will be able to go back to the Tribunal and pursue a judicial path instead, with full appeal rights to the Supreme Court. The crown will have to take this risk into account, and offer more generous settlements. Which in turn may create obligations on it to top up past settlements (notably Ngai Tahu and Tainui).

It needs to be emphasised that this is not a new power, or "judge-made law". This is a straight application of statute law passed by Parliament in the 80's. The Waitangi Tribunal has ignored the law for twenty years in favour of pushing claimants towards settlements. Now they will have to do their job properly.