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Anthony Willy

Waitangi Tribunal hearing on fresh water

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The Tribunal has embarked on round two of its hearings concerning a variety of claims relating to New Zealand’s fresh water resources. The nature of the claims are discussed in exhausting detail in the Tribunal’s first report made in 2012. This was in the context of the government’s intention to sell minority holdings in two of the state owned hydro power companies in order to keep an election promise, and to free up funds for other social purposes including the education and health of all New Zealanders including of course people claiming Maori ancestry.

One has sympathy for the task of the Tribunal presented as it was with the irreconcilable positions taken by the various claimants: Some considered that they had rights of ownership of water which survived the signing of the Treaty of Waitangi. Some that that they were the guardians of the water within the locality in which a tribe or family lived at the time of the Treaty. Some acknowledged that water was a common good and that nobody could own it (the Crown’s position). Some argued that they had some undefined interests and rights in fresh water (also the Crown position articulated in a letter to that effect written by the Prime Minister Mr. Key to Maori interests in 2009, and restated by him again in 2012). Lurking in the background of the hearing was The Iwi Leaders Group who want specifically defined ownership of all fresh water. Finally there was Ngai Tahu and Tainui, later joined by others holding what they called a watching brief.

All of these positions are discussed in a scholarly way but no reconciliation reached or any resolution of the claimants’ competing claims. These Herculean labours extending over many pages brought forth a conclusion that there was the necessary nexus between the generation of hydro power and the claims made. This led to a recommendation that the parties meet with each other and the government to discuss a range of options including whether they should receive shares in the power companies or royalties on the use of the water which goes over the dams, or some other possible outcome.

What the Tribunal did not do is confront the fact that it had no jurisdiction in law to consider the claims. Having noted at the outset of its considerations that the claims were first made by Mr Graeme Latimer on behalf of The New Zealand Maori Council on the 7th December 2012 for the Tribunal to continue with the hearing was clearly in breach of s6AA of the Treaty of Waitangi Act. It provides:

6AA Limitation of Tribunal’s jurisdiction in relation to historical Treaty claims
(1) Despite section 6(1), after 1 September 2008 no Maori may—
XXXXX(a) submit a claim to the Tribunal that is, or includes, a historical Treaty claim; or
XXXXX(b) amend a claim already submitted to the Tribunal that is not, or does not include, a historical Treaty claim by XXXXXXXincluding a  historical Treaty claim.
(2) However, subsection (1) does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September
XXX2008 from being amended in any way after 1 September 2008.
(3) The Tribunal does not have jurisdiction (including, but not limited to, the jurisdiction to inquire or further inquire into,
XXXor to make any finding or recommendation) in respect of a historical Treaty claim that is—
XXXXX(a) submitted contrary to subsection (1)(a); or
XXXXX(b) included in a claim contrary to subsection (1)(b).
(4) To avoid doubt, if a claim is submitted to the Tribunal contrary to subsection (1), it must be treated for all purposes XXX(including, for example, for the purposes of sections 8A(2), 8C(1), 8HB(1), 8HD(1), and 8HJ) as not having been

This provision is found in the current legislation reprinted as at 23 September 2015 and one would have thought that that is clear beyond doubt that the Tribunal cannot hear any historic Treaty claim brought by “a Maori” after the cut-off date of 1 September 2008. Clearly a claim that in signing the Treaty Maori people did not surrender their rights to claim ownership or guardianship etc. of fresh water is an “historical “Treaty claim within the meaning of s 2.” If that is not historical within the definition contained in the Act then no claim is and jurisdiction can be assumed by the Tribunal merely because the claim is of recent origin. If that is so then s6AA means nothing.

Nowhere in its decision does the Tribunal confront this difficulty rather it compounds the problem by discussing at great length a number of its other reports which deal with lakes and rivers (all of which were historic Treaty claims) as supporting the conclusions it reached that there is a nexus between the water claim and the Treaty. There is reference to the date “21 September 1992” cited in the context of the date of the making of the claims. That is the date contained in s 2 of the original Treaty of Waitangi Act of 1975 which defines what is an Historic claim. It is defined as one which arose before 21 September 1992. Presumably the Tribunal is familiar with s2 of its Act and this puts beyond doubt that in the 2012 reference it knew it was dealing with an historic claim which is ruled out by s 6AA above.

What is surprising is the Government’s lawyers did not raise this point which would have saved the tax payer substantial sums of money and spared the Tribunal from having to consider and report on the matter. Neither, as far as is known has it been raised by the Crown in relation to part two of the reference upon which the Tribunal is currently embarked.  It is not as if Mr Finlayson QC the Attorney General (also the Treaty Minister) is not aware of the tendency of the Tribunal to ignore s 6AA. In an interview broadcast on 2 ZB news last year he is reported as being unhappy with what he described as the Waitangi Tribunal’s “illegitimate” investigation of areas outside its scope in the context of an urgent hearing convened to consider whether the Crown has failed to reduce high Maori imprisonment and re-offending rates. Saying,

the Tribunal seems to investigate everything these days I think they’d be much better to focus on resolving all the historical inquiries that they have on, I think they’re starting to move into areas I regard as quite illegitimate.

The Minister issued a warning to the Tribunal to sort its priorities saying.

they seem to be investigating everything at the moment. I don’t know whether they’re a permanent commission of inquiry or some kind of imperial senate. (My emphasis)

It seemed that nobody at Crown Law alerted the Minister to the probability that the reference concerning fresh water is outside of the jurisdiction of the Tribunal and the hearing should have been opposed on that ground, leaving any recommendations of the Tribunal open to an application for judicial review on the grounds that it has no jurisdiction to embark on the fresh water enquiry with the certain outcome of a declaration to the effect “that the claim is to be treated for all purposes as not having been submitted.” No institution including the Tribunal or indeed a Court of law can ignore the provisions of s6AA whether raised by the parties or not. The prohibition against hearing claims which arise after the cut-off date goes to jurisdiction and is absolute. It is not merely a limitation point which a party may waive. Or is there some parallel jurisprudence where Maori claims are concerned which the rest of us don’t know about?