Tribunal and Government's viewpoints lost in translation

By RUTH BERRY

Government and Waitangi Tribunal appear poles apart over key issues at the heart of the tribunal's ruling that Maori had seabed and foreshore rights.

THE SOVEREIGNTY OF PARLIAMENT

Dr Cullen: accused the Waitangi Tribunal of making "dubious or incorrect assumptions" about the role of the treaty and the rule of law.

"The most important of these is the implicit rejection of the principle of parliamentary sovereignty. The tribunal ... seems to assume that a clear statement of statute law - such as vesting of the title to foreshore and seabed in the Crown as is currently the case - can in effect be ignored.

"The report also seems to be asserting that if Parliament changes the law, as the Government is proposing by removing the capacity of Maori to gain freehold title over the foreshore and seabed, it is somehow breaking the law itself.

"The power of Parliament to change the law is central to the exercise of sovereignty and therefore the contemporary exercise of Article One of the Treaty."

The tribunal: "Ultimately the Government is free to do what it wishes ... power to govern resides with the Government.

"We proceed in the expectation that Governments in New Zealand want to be good Governments ... Fairness is the value that underlines the norms of conduct with which good Governments govern."

The claimants: Treaty Tribes chairman Harry Mikaere says parliamentary sovereignty does not mean Parliament can do what it likes. It includes respecting the right of Maori to have their day in court.

Te Ope Mana a Tai lawyer Grant Powell says Dr Cullen's Crown title comments contradict the Court of Appeal, which found "any title the Crown has is subject to the rights of Maori" as statutes had not explicitly removed those common law rights.

PROPERTY RIGHTS

Dr Cullen: "The second serious error the tribunal makes and which determine a great deal of its judgment is that the Government's proposal does not include recognition of customary rights as a form of property rights.

"That is simply not so. The Government does recognise customary rights as property rights.

"We will make this clear in the introductory policy statement to the legislation. Much of the logic of the tribunal's report simply falls to the ground once that is made clear."

The tribunal: "It is very difficult to be definitive about what the benefits are that Maori might derive through court-declared (had the Government not intervened) property rights. We think the Government's assessment is at the very low end. There is no acknowledgment that property rights, even minimal ones, carry with them the right to sue, and the protection of the law generally."

The claimants: Professor Margaret Mutu (Ngati Kahu): "The tribunal is saying that Maori do have property rights ... but the Government is trying to understate them grossly."

Grant Powell says a property right has an ownership component. The Government proposes to recognise use rights only, with ownership vested in the Crown. The refusal to recognise ownership interests denies key rights.

*The Crown barely if at all refers to property rights in its December document, although does so in the House. The document distinguishes between use-based rights and ownership interests. It will not recognise the latter.

COMPENSATION

The tribunal: There is no guarantee to pay compensation for lost rights.

"We have not sought to suggest changes to the detail of the policy, we think changes would not redeem it.

"However, we make an exception in relation to compensation. If after considering our report, the Government nevertheless wishes to proceed with its policy unchanged, we think that the treaty requires it to acknowledge a responsibility to compensate Maori for the removal of their property rights. This is the bare minimum of what the treaty, and any standard of fair and good Government demands."

Government: December document said if the courts, when asked to recognise rights, found some existed at common law which were precluded from being recognised within the new framework "the court will refer the matter to the Government for resolution.

"Discussion would involve the possibility of some form of specific recognition including redress."

Helen Clark refused to use the word "compensation" this week, instead talking of direct negotiation with claimants in this category.

Claimants: Grant Powell says the Government is taking a treaty settlement approach. That after being the sole arbiter of which rights can be expropriated, it is only prepared to offer "redress".

This typically involves the Crown offering a fixed sum of money, worth much less than the value of what is being taken, with only nominal ability to negotiate. But when land is taken under the Public Works Act a set compensation formula based on the value of the property applies.