Treaty of Waitangi Settlements – Progression and Innovation
2012 has been a year of milestone achievements for historic Treaty settlements: To date, 11 Treaty settlements have been concluded through legislation and six Deeds of Settlement have been signed this year. Seven further Deeds and three Agreements in Principle are expected to be signed before the year concludes. The efforts of the Minister for Treaty of Waitangi Negotiations, the Office of Treaty Settlements, and the whānau, hapū and iwi that have achieved these ends must be commended.
In addition, 2012 marks 17 years on from the pioneering Waikato-Tainui Claims Settlement Act 1995 and 15 years since the Crown agreed to include a relativity clause in the settlement agreements with Ngāi Tahu and Waikato-Tainui. The current total Treaty settlement distribution amount is $1.3 billion and the relativity clauses were activated this year. There are 40 – 60 settlement groups that are yet to settle so this year marked the first of several distributions to these two iwi.
Finally, 2012 was a year of innovation for Treaty Settlements. The Crown and Whānganui iwi entered into a framework agreement setting out the key elements of the Whānganui Iwi settlement agreement. Importantly, the Whānganui River will be recognised as Te Awa Tupua with statutory recognition as a legal entity in its own right. The Crown and Ngāi Tūhoe have agreed to a similar statutory recognition and separate legal entity status for Te Urewera National Park as part of the Ngāi Tūhoe settlement package.
Application of customary law principles through the criminal trial and sentencing processes
The judgement of Heath J in R v Mason  NZHC 1361 is a bittersweet development for customary law jurisprudence in the context of criminal law.
The accused was committed for trial in the High Court for murder and attempted murder. The accused applied for a ruling that the charges should be dealt with in accordance with tikanga Māori, on the basis that the pre-existing customary criminal justice system was available to Māori.
The Court considered whether the customary criminal justice system had been extinguished in the trial or the sentencing process. Heath J held that the combined effect of ss 5 and 9 of the Crimes Act 1961 extinguished the customary criminal justice system in regards to the trial process but accepted that customary law principles could be applied at the sentencing stage (in accordance with the Sentencing Act 2002). Justice Heath observed that the recognition and application of a form of parallel criminal justice system gave rise to practical problems that could result in a conflict of laws between custom and statute.
The serious consideration Heath J gave to the continuation of custom in this case represents a move away from the previous approach that some Courts have taken to applications on customary law (as in Wallace v R  NZSC).
Extension of Treaty obligations
The Finance and Expenditure Committee reported to the House on the Mixed Ownership Model Bill on 11 June 2012. The Committee, by majority, recommended that a statutory obligation be placed on Mixed Ownership Model (MOM) companies to consult with Waikato-Tainui, by amending s 64 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.The Committee found that this obligation would be “echoing the requirement for consultation that currently applies to SOEs, and applying it even more broadly to [MOM] companies”.
Section 45Q of the Public Finance Act 1989 requires that the Crown must not act inconsistently with the principles of the Treaty of Waitangi and expressly restricts the obligations of this provision to the Crown. Section 64 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 extends obligations imposed in s 45Q. A MOM company is required to consult with Waikato-Tainui on particular matters, albeit that it is a partially privatised entity.
In addition, the Waitangi Tribunal continued to build on their findings in Wai 262 and made recommendations on the machinery of Government and the role of the Executive in Matua Rautia: The Report on the Kohanga Reo Claim (Wai2336). The Tribunal recommended that the Department of the Prime Minister and Cabinet, and an independent advisor, oversee and facilitate an urgent completion of a work programme in accordance an original Tripartite agreement between the Kohanga Reo Trust, the Ministry of Education and Te Puni Kokiri.
Finally, it would be remiss to disregard water as a matter worth mentioning for 2012. There has been analytical and insightful commentary published on this matter in issues 189, 195 and 196. For completeness, I note that the New Zealand Māori Council, the Waikato River and Dams Claim Trust and the Pouakani Claims Trust applied for judicial review of the Crown’s decision on 15 October 2012 to proceed with preparations for the Initial Public Offering of shares in Mighty River Power Limited.
The critical hurdle in the judicial review application for the applicants will be at the first stage: whether the statements of the Prime Minister on 15 October are justiciable for the purposes of judicial review.
It is likely that the unsuccessful party will seek leave to appeal directly to the Supreme Court under s 14 of the Supreme Court Act 2003.
All and all, 2012 been an eventful year for that will be remembered for all things concerning freshwater.
Looking towards 2013, the Supreme Court is expected to deliver their judgement on an appeal by the applicant from the Court of Appeal’s decision in Takamore v Clarke  NZCA 587 (discussed in Issue 176, December 2011). This judgement has the potential to transform the legal landscape concerning the extent to which the common law of New Zealand recognises customary law. It will be interesting to see whether the water claim will lead to any likely findings on the extent to which the common law of New Zealand has incorporated the Treaty of Waitangi.
That reminds me, constitutional reform is also on the 2013 agenda.