Mai Chen: Stopping the grievance cycle

King Tuheitia. Photo / Greg Bowker

Learn the lessons of the water claim to help NZ fulfil its potential as a nation

The Maori King, Tuheitia, has never called a national hui of the sort happening today on water and its significance extends well beyond water rights to all of the other resources and issues Maori are making contemporary claims about. It was reported earlier in the week that some Ngapuhi claimants will lodge a claim for the commercial use of wind with the Waitangi Tribunal.

Over and above historical claims, Maori are able under section 2 of the Treaty of Waitangi Act to ask the tribunal to investigate contemporary claims relating to any enactment, policy or practice adopted or an act done or omitted by the Crown after September 21, 1992 which breaches the Treaty of Waitangi.

As of January this year, there were over 200 contemporary claims filed with the Waitangi Tribunal. Customary rights to water is one example, but there are many more. Some have failed; others have succeeded, like the water claim. But all of these claims concern the actions of successive governments since 1992 showing that Maori believe breaches of the Treaty are continuing and that until the Crown starts treating them as a proper Treaty partner, the grievance cycle will continue.

A government can never stop people suing over a contentious policy, but it can act to take away the grievance or to minimise their chances of succeeding in court. Contemporary claims are here to stay, so the Government has to find a more effective and efficient modus operandi than it adopted for water, especially given its policy on oil and gas exploration.

As Lord Cooke said in the Lands Case, "the principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected Government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles."

Any approach to contemporary claims has to factor in the prior decisions of the courts and the Waitangi Tribunal about what Maori do and do not have rights and interests in and to. Forgetting that this jurisprudence exists doesn't work.

For example, the contemporary petroleum claim in 2000 also resulted in an urgent Waitangi Tribunal report due to the Government's intention to sell the Crown's interests in the Kupe licence. The breach alleged was the Crown's nationalisation of petroleum resources without paying compensation to the landowners or providing for the ongoing payment of royalties.

The tribunal found (very similarly to the interim water reports issued this year) that where land rights were lost in a Treaty breach, then there is a residual Treaty right that should be remedied in natural resources like petroleum.

The Government's current tender round for oil and gas exploration permits closes on October 15. It also released a March discussion paper inviting submissions on Crown minerals reform, which includes "improving dialogue between regulatory agencies, iwi and other important stakeholders, as it relates to the Crown Minerals Act".

Another example is the Wai 2224 claim lodged in December 2009, which argues that the electromagnetic radio spectrum is a taonga and that Maori have interests in the 4G radio spectrum to be used by telecommunications companies to connect smartphones to cellular networks. The claim is currently on hold to give the Crown and Maori time to develop a joint approach to the spectrum.

However, time is running out. By December 1, 2013, the Government intends to implement the "digital switchover", forcing television broadcasting to go digital which will free up the 4G radio spectrum for commercial use. Resisting this Maori claim will be made harder given that the previous Labour-led Government gave Maori one quarter of the 3G spectrum.

We are also still waiting for the Crown's response to the Wai 262 investigation into flora, fauna and cultural and intellectual property. This claim took the Waitangi Tribunal over 21 years to investigate and addressed the work of more than 20 government departments and agencies which concern Matauranga Maori.

The many recommendations include a revamped Maori language commission, the establishment of a new commission to protect Maori cultural works against offensive and unauthorised uses, that the Department of Conservation take the lead in developing a Treaty-compliant bio-prospecting regime and that measures be introduced to give greater recognition to the Maori interest in genetic modification.

There are also a good many historical claims which have significant contemporary implications for New Zealand's constitution. The current tribunal inquiry into Northland (Te Paparahi o te Raki) is considering claims that Maori never ceded their sovereignty or tino rangatiratanga (full chieftainship) in 1840.

The tribunal's Te Rohe Potae inquiry in the King Country is looking at the Crown's relationship with the Kingitanga movement. Claims for greater recognition of Maori authority now are inherent in many of these historical claims.

We have to learn lessons from the water claim, or it will be deja vu all over again, as Yogi Berra would say, with other contemporary claims. That won't help either Treaty partner in pursuing our shared interest in New Zealand fulfilling its full potential as a nation and in terms of our economy.

Mai Chen is a partner in Chen Palmer and author of Public Law Toolbox

Disclosure: Chen Palmer advises clients on contemporary claims including the water claim

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