BEFORE THE WAITANGI TRIBUNAL

Transcription

1 Wai 2523, #1.1.1 BEFORE THE WAITANGI TRIBUNAL WAI IN THE MATTER OF The Treaty of Waitangi Act 1975 AND IN THE MATTER OF Urgent inquiry into the Crown s actions concerning the Trans-Pacific Partnership Agreement STATEMENT OF CLAIM Dated 23 June 2015 Kathy Ertel & Co Barristers and Solicitors 26 Bidwill Street Mt Cook Wellington 6021 Ph: Fax: Counsel acting: Linda Thornton / Bryce Lyall linda@klelaw.com bryce@klelaw.com

2 Table of Contents THE CLAIMANTS 3 THE FACTS 3 THE CLAIM 4 RELEVANT PRINCIPLES AND DUTIES 5 FIRST CAUSE OF ACTION: SOVEREIGNTY 9 SECOND CAUSE OF ACTION: NO CONSULTATION OR REPRESENTATION 12 THIRD CAUSE OF ACTION: SETTLEMENT 14 IRREVERSIBLE PREJUDICE TO THE CLAIMANTS 15 RELIEF SOUGHT 16 2

3 MAY IT PLEASE THE TRIBUNAL The Claimants 1. This statement of claim is filed on behalf of: a) Natalie Kay Baker on behalf of herself and the Waimate Taiamai Alliance; b) Hone Tiatoa on behalf of himself and Te Waimate Taiamai; c) Maia (Connie) Pitman on behalf of herself and her whanau; d) Ani Taniwha, on behalf of herself and Te Uri o Te Pona, Ngati Haiti, Ngati Kawau, Ngati Kawhiti, Ngati Kahu o Roto Whangaroa, Ngāitupango, Te Uri o Tutehe, Te Uri Mahoe and Te Uri Tai and Te Uri o Te Aho; e) Pouri Harris on behalf of himself and Ngāti Toro; f) Owen Kingi on behalf of himself and Ngāti Uru and other Whangaroa hapū; g) Justyne Te Tana on behalf of herself and Ngāi Te Whiu and Ngāti Tautahi, and Ngāi Te Wake o Waoku, Ngāi Te Wake Tua Whenua, and Ngāi Te Wake o Takutai Moana; h) Lorraine Norris on behalf of herself and Te Uriroroi, Te Parawhau and Te Mahurehure ki Poroti. 2. The claimants are members of hapu of Ngapuhi, and meet the requirements for bringing a claim as set out under s6 of the Treaty of Waitangi Act For the purposes of this statement of claim all of the parties above will be referred to as claimants. The Facts 4. Since 2010 the Crown has been in negotiations with eleven other countries towards entering an international agreement known as the Trans-Pacific 3

4 Partnership Agreement ( TPPA ). 5. The Crown s negotiations have been conducted under conditions of strict secrecy. The Crown signed an agreement with other negotiating parties that prevents release of any documentation for four years following signing of a final agreement or abandonment of negotiations. If negotiations are never offically abandoned then the documents may never be released. 6. The TPPA has no known withdrawal mechanism, making withdrawal by any future government problematic at best. 7. The TPPA can be passed by the Executive without participation or ratification by Parliament. 8. The proposed action by the Executive is expected next month. In any The Claim event, it has been announced that the TPPA is intended to be concluded by the end of August The allegations of this claim arise following the decision Whakaputanga me te Tiriti The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry ( Stage One Report ) Specifically, the Stage One Report found: The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories; The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests; and 1 He Whakaputanga me te Tiriti The Declaration and the Treaty, The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, Wai 1040, Waitangi Tribunal Report

5 The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis; and The rangatira appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary Without consultation with or consent from the hapu of Ngapuhi, the Crown is ceding elements of New Zealand s sovereignty before considering what effect this will have on hapu in light of the Wai 1040 Stage One Report s conclusions. 12. The claimants will suffer further significant and irreversible prejudice as a result of the Crown s actions to towards entering into the TPPA. This Statement of Claim is therefore accompanied by an application for the claim to be heard urgently. Relevant principles and duties Partnership 13. The overarching Treaty principle is that the relationship between the Crown and Māori is in the nature of a partnership and rests on the premise that each partner will act reasonably and in utmost good faith towards each other. 3 Duty to consult and gain consent 14. Under Te Tiriti o Waitangi, the Crown has a duty to consult with the claimants. The active protection of Māori Rangatiratanga, and of Māori in general, requires the Crown to inform itself adequately. 15. In the Manukau Report, the Tribunal first raised this principle, noting that: 2 Ibid p529 3 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) pp ; Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim (Wellington: Brooker and Friend Ltd, 1987), p147 5

6 consultation can cure a number of problems. A failure to consult may be seen as an affront to the standing of the indigenous tribes and lead to a confrontational stance The Tribunal, in the Ngawha Geothermal Resource Report 5 stated that: Before any decisions are made by the Crown... on matters which may impinge upon the rangatiratanga of a tribe or hapu over their taonga, it is essential that full discussion take place with Maori [if the obligation of active protection by the Crown is to be fulfilled] On the principle of consultation, the Tauranga Moana Tribunal stated: Consultation must be open and meaningful, and the Crown should be willing to change its mind on the basis of information received The Tribunal s Report on the Crown s Foreshore and Seabed Policy 8 ( Foreshore and Seabed Report ) adopted the test for consultation set out in Wellington International Airport Ltd v Air New Zealand. 9 This can be summarised as follows: There must be made available to the other party sufficient information to enable it to be adequately informed so as to be able to make intelligent and useful responses. Notification is not the same as consultation. 19. The Court in Wellington International Airport relied on Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 as the leading case on the requirement. Lord Morris of Borth-y-Gest, delivering the judgment of the Privy Council, said at p 1124: 4 Report of the Waitangi Tribunal on the Manukau Claim Waitangi Tribunal Report 1985 at Ngawha Geothermal Resource Report, Waitangi Tribunal Report Ngawha Geothermal Resource Report at Tauranga Moana , p283 The Tribunal was speaking of Public Works takings, but its findings are applicable by analogy here. 8 Report on the Crown s Foreshore and Seabed Policy Waitangi Tribunal Report Wellington International Airport Ltd v Air New Zealand. (ca) [1993] p 676, per Cooke P 6

7 The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed: they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties: they must be free to say what they think. 20. Finding that the Crown s conduct did not meet the Wellington International Airport test, the Foreshore and Seabed Tribunal concluded... nor would the Crown be likely to succeed in an argument that its conduct fulfilled the requirements of the duty to consult inherent in the Treaty principles In the report Ko Aotearoa Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity ( Wai 262 ) the Tribunal found that the Crown s present policies and practices with regard to consultation on international agreements are not compliant with the Treaty The Tribunal in the Wai 262 inquiry found further that Māori interests in international instruments exist on a sliding scale. Where Maori interests are judged to be small the level of engagement will be correspondingly minor. 23. The Tribunal found that in situations where Māori interests are so central to the entire instrument, such as UNDRIP then the Māori interest when given its due weight may require more than consultation. It may require the Crown to negotiate with Māori and to proceed only with their agreement. At the far end of the spectrum, it may even be appropriate for the Crown to step aside by agreement and allow the Māori Treaty 10 Foreshore and Seabed Report p Wai 262 Report p689 7

8 partner to speak for New Zealand. 12 Duty to act in good faith towards its Treaty partner in respect of international agreements. 24. The Crown owes Māori a duty of good faith and active protection, especially when those interests are affected by international rules applying to New Zealand As part of this duty, the Crown is obliged to inform Māori of international developments that might affect their interests. This requires an engagement sufficient to identify, understand and jointly devise a means of protection Te Tiriti o Waitangi requires the identification and active protection of Māori interests when they are likely to be affected by international instruments. Principles of Reciprocity and Partnership 27. The Te Tiriti principles of reciprocity and partnership require the Crown Duty to cooperate to develop policy in respect of trade agreements in a way that gives meaningful effect to te Tino Rangatiratanga, and balances the interests of both peoples in a fair and reasonable manner The Crown has a duty to cooperate with Maori. The Treaty obligation to cooperate does not require Māori to sell out on the principles they hold dear, but it does require them to begin with a genuine desire to explore common ground. 16 This duty to begin with a genuine desire to explore common ground must also apply to the Crown too. 12 Wai 262 Report p Wai 262 report p ibid 15 Foreshore and Seabed report p Wai 262 report p581 8

9 United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP ) 29. UNDRIP was described by the Wai 262 Tribunal as (p)erhaps the most important international instrument ever for Māori people Article 1 of UNDRIP reads: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights. First cause of action: Sovereignty 31. As alleged above, on 14 November 2014 the Waitangi Tribunal released its Stage One Report, finding that the Rangatira who signed Te Tiriti in February 1840 did not cede their sovereignty to the British Crown The Stage One Report makes no conclusions about the sovereignty the Crown exercises today, nor does it say anything about how the Treaty relationship should operate in a modern context The Stage One Report serves as the starting point for a conversation 17 Wai 262 report p He Whakaputanga me te Tiriti The Declaration and the Treaty, The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, Wai 1040, Waitangi Tribunal Report Ibid pp xxii-xxiii 9

10 between the Crown and its Tiriti partner on the challenging and complex issues about how New Zealand was founded about the places of both Māori and non-māori in this land. Judge Coxhead, the presiding officer for the Wai 1040 inquiry, also stated that: These are issues we as a nation have struggled with. However challenging, they are important not only to the Tribunal and to the parties in this inquiry, but also to the nation as a whole Since the release of the Stage One Report the Crown has sought to trivialise the Tribunal s conclusions, and has avoided any meaningful dialogue with the claimants on what impact the Stage One Report might have on the relationship between Maori and the Crown today. As will be shown in evidence, the Crown has made no meaningful response to the Stage One Report whatsoever. 35. Adiitonally, Te Tiriti and its principles have not played any role in shaping the Crown s approach to the TPPA negotiations. 36. There are a number of features of the TPPA that will result in a waiver or limitation on New Zealand s sovereignty. This has been acknowledged by representatives of the Crown. 37. These features include exposing New Zealand to investor state dispute resolution, and reducing the Crown s ability to make law and policy over: a) Water quality regulation and agricultural water use; b) Energy regulation; c) Regulation of environmental concerns, such as deep sea drilling for oil or fracking ; d) Smoking control laws; 20 Ibid 10

11 e) Access to affordable medicines; f) A cap on electricity prices; g) Maori settlements; and h) Policies aimed at alleviating poverty. 38. Since 2001 a Treaty of Waitangi exception has been included in all free trade agreements that the Crown has signed. However, this does not protect Ngapuhi hapu s interests. 39. While the constitutionality, or indeed desirability, of a waiver of sovereignty by the Crown may be questioned by any citizen, it is certainly contrary to the Māori reservation of Tino Rangatiratanga in Te Tiriti o Waitangi. 40. Rangatira from the hapu of Ngapuhi, and other Northland rangatira, did not cede their sovereignty when signing Te Tiriti. The Crown has not engaged with the relevant claimants and the claimant community to determine how this finding may change the relationship it has with its Tiriti partner. 41. The Rangatira who signed te Tiriti did expect that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary. The Crown s role was to be one of protection, not cession of sovereignty and thus exposure to loss. 21 Accordingly, the Crown cannot be considered to have authority to cede elements of the claimants sovereignty. 42. In the Stage One Report the Tribunal s view was: The text in both English and Māori referred to a mutually beneficial relationship between Māori and Britain, in which each would protect the other s interests where it was in their power to do so. The description of the king as matua in our view did not imply British 21 Ibid p xxii 11

12 superiority except in international affairs, and there the request was not for Britain to usurp Māori authority but to foster it and protect it from foreign threat Signing up to the TPPA will not foster or protect Maori authority. It will not protect Maori authority from any foreign threat. Rather it will usurp elements of Maori authority and cede them in favour of others not party to Te Tiriti. 44. Until the Crown engages with the claimants, and gains the approval for its actions from the descendants of the rangatira who signed te Tiriti in February 1840 at Waitangi, Waimate, and Mangungu, it is without authority to lawfully relinquish the sovereignty of the hapu of Ngapuhi in a trade agreement with other nations. Second cause of action: No Consultation or Representation 45. The Crown has conducted negotiations towards the TPPA in secret, without any meaningful consultation with or disclosure to the claimants. The claimants are unable to make an informed decision or response on whether the TPPA is desirable or not. 46. Additionally the agreement would become binding on the Crown by an executive act (the cabinet), rather than by an act of Parliament. This further undermines the claimants ability to become informed on, and to participate in, a decision which is fundamental to their interests. There will be no Parliamentary debate, nor any select committee process. 47. As outlined above, any documents will not be released until four years after the deal is signed. This includes all background documents, drafts of the text, explanatory notes, and any other material. Therefore not only have the claimants not been consulted, they will also not be able to know the details of the negotiations of the deal for four years after the date it is 22 Ibid p502 12

13 signed. 48. The Crown has breached its duty to consult with the claimants, and has breached the principle of partnership. Maori have not consented to the Crown representing them in the TPPA. If the Crown is to avoid breaching its duties to Maori then the Crown needs not only to consult with Maori, but for Maori to have a meaningful say in whether the Crown enters into the TPPA or not. 49. The Wai 262 report 23 made recommendations on the making of international instruments, finding that when international instruments affect Māori interests in their culture, identity or traditional knowledge, the Crown is obliged to actively protect those interests. This requires the Crown to inform and consult Māori when it is developing New Zealand s position on those instruments; in rare cases, Māori consent should be sought The Tribunal found that the Crown is currently falling short of this standard. The Wai 262 Tribunal recommended, amongst other things, that: the Crown amend the Strategy for Engagement with Māori on International Treaties to require engagement over both binding and non-binding instruments, and to provide for engagement beyond consultation where appropriate to the nature and strength of the Māori interest; that the Crown identify relevant Māori bodies which could serve as partnership forums for discussion about international instruments, and create partnership bodies where they do not exist; that the Crown adopt a policy, following negotiation with Māori interests, for funding independent Māori engagement in international forums; and 23 Ko Aotearoa Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity Waitangi Tribunal Report ibid p682 13

14 that the Crown put in place accountability mechanisms, including regular reporting about Crown actions relating to international instruments to iwi and Māori organisations, and to Parliament s Māori Affairs Select Committee; and that the National Interest Analysis carried out when Parliament considers international instruments includes consideration of any effect on Treaty rights and interests. 51. Despite receiving the Wai 262 report almost four years ago, the Crown is yet to provide a comprehensive response to it. 25 The Crown has paid no attention to these recommendations in its negotiations towards the TPPA. Third Cause of Action: Settlement 52. The hapu of Ngapuhi are currently being heard before the Tribunal in te Paparahi o te Rahi (Northland) Inquiry. Following this process, the claimants are likely to seek settlement of their grievances with the Crown and resumption of their lands. 53. By becoming a party to the TPPA the Crown exposes New Zealand to the possibility that companies or countries may take action under ISDS where the Crown and the claimants are able to agree on settlement. 54. Where Maori seek to benefit from the agreement made with the Crown over Crown forest lands 26 by way of a resumption hearing and a binding resolution under s8 of the Treaty of Waitangi Act 1975, foreign companies may bring actions for compensation should the Tribunal make binding recommendations, or should the Crown reach a negotiated agreement with Maori prior to that point. 55. The potential for such action will have a chilling and prejudicial effect on Crown planning, policy and actions regarding the settlement of claims, which will undermine the redress available to claimants. This is particularly so for those claimants with claims relating to Crown forest 25 Memorandum of the Crown, Wai 898 # Codified in the Crown Forest Assets Act

15 lands such as the Waitangi Forest, the Glenbervie Forest, and the Otangaroa Forest. Irreversible prejudice to the claimants 56. The proposed TPPA cause the claimants irreversible prejudice including: a) Treaty settlements with the claimants will be prejudiced, whether they be concluded settlements or settlements that may be reached in the future; b) The TPPA will have a chilling effect on Crown policies involving Maori, and Crown policy indirectly affecting Maori; c) The TPPA will have a prejudical impact on Maori rights in forestry, and including the impacts it may have on the Tribunal s ability to make binding recommendations on Crown forestry. This will prejudice Maori settlement aspirations as well as settlements already reached; d) The Crown has ignored the findings of the Wai 262 Tribunal on engagement when seeking to sign international agreements; and e) The TPPA negotiations and any implementation will have a prejudical impact on the exercise of Maori sovereignty and self-government. As alleged above, the hapu of Ngapuhi have only recently received the Stage One Report that found among other things that sovereignty was not ceded with the signing of Te Tiriti. If the Crown signs the TPPA then they will be doing so without any consideration as to its impact upon Maori sovereignty, or the findings of the Tribunal. The TPPA will further erode the sovereignty of the hapu of Ngapuhi, without ever consulting with the hapu or receiving the authority to waive their sovereignty as is proposed in the TPPA. 15

16 Relief sought 57. The claimants ask that the Tribunal grant an urgent hearing of this claim. 58. The claimants ask that this claim be heard within the Northland rohe. 59. The claimants seek the following recommendations or findings: a) The Crown has acted contrary to the principles of te Tiriti o Waitangi; b) There has been insufficent assessment by the Crown of the impact of the TPPA regime on the guarantees of tino rangatiratanga under te Tiriti and on Maori sovereignty; c) That the claimants have been denied the right of active engagement in goverance decisions that affect them as required by tino rangatiratanga; d) The Crown urgently begin meaningful engagement with the claimants on how the Tribunals findings on sovereignty in the Stage One Report will impact upon the relationship between the Crown and the hapu of Ngapuhi in the future; e) The Crown immediately halt progress towards signing the TPPA until time has been taken to meaningfully engage with the hapu of Ngapuhi in accordance with te Tiriti o Waitangi obligations and ensure their rights and interests are accorded priority over foreign states and investors; f) Prior to entering in to the TPPA the Crown and Maori develop a framework of engagement upon which international agreements must be assessed to ensure they comply with te Tiriti o Waitangi obligations. The Crown must then put in place mechanisms to ensure that it can meet its obligations to Maori under te Tiriti o Waitangi when entering international agreements; 16

17 g) This may include the establishment of a specialist body of Maori who, with adequate resourcing, are able to determine whether the agreement is compliant with te Tiriti; h) The Crown take immediate steps to implement the recommendations of the Wai 262 report as it relates to international agreements; i) That the current full draft text of the TPPA be released to the hapu of Ngapuhi immediately to enable them to engage in an informed debate on the TPPA; and j) Any other recommendations the Tribunal sees fit to make. Dated this 23 rd day of June 2015 at Auckland Linda Thornton Bryce Lyall Claimant Counsel 17