Ngā Take Māori o Te Ao Ture: Māori Legal Update - Simpson ...
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HAKIHEA/DECEMBER 2020
Ngā Take Māori o Te Ao Ture:
Māori Legal Update
E ngā tāngata ki tua, e ngā tāngata ki tai tai, meri Kirihimete me ngā whakawātea o te tau
hou ki a koutou katoa!
He tau mate korona te tau, he tau haumaru te tau, ā, he tau wānanga te tau hoki. E ngā tini
mate kua whetu rangitia, tūrama mai rā te māramatanga ki runga i a mātou te hunga ora.
Kia hikoi pai mātou ki runga i te ara o te ture, hei whakamānawa i a koutou moemoea e
tūramarama mai nei.
Mahara mai ki te pānui tuarua o Simpson Grierson. We The case concerned the granting of resource consents in the
are pleased to present the second issue of our Māori Legal Waitematā Harbour area near Auckland’s CBD - and consent
Update: Ngā Take Māori o Te Ao Ture. conditions that allowed for input for all mana whenua
in Tāmaki. Ngāti Whātua Ōrākei Whaia Maia Ltd (Ngāti
In this issue, we take a look at some of the key
Whātua) claimed that it had “primacy” in relation to the
developments in te ao ture, including a focus on te taiao,
other mana whenua in Tāmaki.
local government and opportunities for Māori in technology
and business. The High Court held that the concept of “primacy” was
unclear and did not accord with tikanga Māori. Based on
We also introduce some of our rangatahi joining our whānau
Ngāti Whātua’s evidence “primacy is not [to] be equated
as summer clerks, our experience at the THRMOA Kura Reo,
with exclusivity”. The principle of manaakitanga creates
as well as congratulate our most recent graduates on being
obligations for Ngāti Whātua, as the ahi kā, to “recognise
admitted as rōia to the bar. Mauri ora!
those with legitimate customary interests”.
Ngā Ārohi o Te Ao Ture: Our Observation of The High Court emphasised the central importance of
Te Ao Ture sections 6(e), 7(a) and 8 of the RMA for ensuring that Māori
interests are taken into account at all stages of the planning
Reconciling ‘layers of Māori interest’ under the RMA - the process. The RMA demands that “resource management
latest from the High Court decision-makers are able to identify, involve and provide for
In Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd1 iwi and their mana whenua in accordance with mātauranga
the High Court generally upheld the Environment Court’s Māori and tikanga Māori”. Critically, the High Court noted
decision that, when considering issues under sections that such decision-makers are:
6(e), 7(a) and 8 of the Resource Management Act 1991 • not engaged in a process of conferring, declaring of
(RMA), the Court has jurisdiction to “determine the relative affirming tikanga-based rights, powers or authority
strengths of the hapū/iwi relationships in an area affected by whether in State law or tikanga Māori; and are
a proposal, where relevant to claimed cultural effects of the
application and the wording of resource consent conditions”.
1.
[2020] NZHC 2768, 21 October 2020.
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• not empowered to determine the “jural status of iwi Seabed mining dispute goes to the Supreme Court -
(relative or otherwise)”; but are Attorney General intervenes on questions of the Treaty and
tikanga Māori
• “necessarily engaged in a process of ascertainment
of tikanga Māori where necessary and relevant to the Emerging from the Supreme Court last month were
discharge of express statutory duties” under the RMA. competing arguments from Trans-Tasman Resources (TTR),
iwi, and the Attorney General (AG) on the extent that the
The Court’s finding therefore means that divergent tikanga-
Treaty of Waitangi, Māori customary rights, and tikanga,
based claims must be determined in terms of how best to
should apply to the marine and marine discharge consent
address the relevant RMA obligations under sections 6(e),
process.
7(a) and 8 of the RMA.
These observations follow our last article, which covered
the significance of the Court of Appeal decision in finding
Māori wards: Local Government law changes could be (among others) that decision-makers must take into account
on the horizon Māori customary interests, such as kaitiakitanga, as an
existing lawful activity under the Exclusive Economic Zone
Changes to the law surrounding Māori wards and
Act and Continental Shelf (Environmental Effects) Act 2012
constituencies could soon be on the horizon, as Hon.
(the Act).
Nanaia Mahuta, the Minister for Local Government,
has made addressing the current ‘petition to poll’ rules The Supreme Court invited the AG to submit on the appeal,
under the Local Electoral Act 2001 (LEA) a priority. including submissions on:
Currently, council decisions establishing Māori wards • the interpretation of s 12 of the Act, which specifies how
can be challenged by a petition to initiate a binding- Treaty principles are given effect to;
referendum on the matter. Only 5 percent of electors
• the interpretation of “existing interests” in s 4 of the Act;
are required to initiate this process. Uniquely, no other
and
ward, can be challenged in this way: creating a double
standard for Māori wards. • the nature of the decision-maker’s task under s 59 of the
Act.
The different rules for Māori and general wards has
exposed problems in the LEA, which Local Government To the apparent surprise of iwi and others, the AG agreed
New Zealand and Māori have previously called for with TTR’s interpretation of the Act (media release here).
government intervention (read more here). One key That being: Parliament never intended to recognise Māori
issue identified is that the current law discriminates customary rights as ‘existing interests’, nor tikanga Māori
against Māori by providing the general community the as an ‘applicable law’ through the Act’s Treaty provision. If
ability to vote on the extent of Māori representation. Parliament did, then it would have legislated this expressly.
Other representative arrangements (such as general Rather, the AG submitted that Parliament chose not to enact
wards) are subject to an appeals and objections general obligations to give effect to the Treaty’s principles
process; in which the Local Government Commission is (read the AG’s submissions here).
the decision-maker, not the public. TTR further argued that the Court of Appeal’s ruling had
Another observation can be made of the disparity stretched ‘existing interests’ to include unsettled claims
between the LEA and the Local Government Act under the Marine and Coastal Takutai Moana Act 2011
2002 (LGA), and provision for Te Tiriti o Waitangi in (media release here).
each. While the LGA requires councils to maintain Iwi and others however argue that Parliament did intend
and improve opportunities for Māori to contribute to afford the Treaty greater recognition under the Act. The
to local government decision-making, the LEA makes legislative history, as argued, demonstrates how wording
no provision for the Crown’s responsibility to uphold of the Crown-Treaty provision changed from “take into
principles of participation or partnership. account”- to “give effect to” during the bill process. This
It will be interesting to see how the Government will change implied that the Treaty provision provides a broader
address these issues, and whether it will carry out this obligation, which informs how other sections should be
work with pace - given that petitions are due early next read. This extends to ‘existing interests’ under section 4 to
year if the effect of the poll is to be implemented for include Māori customary rights (media release here).
the 2022 elections. We await to see how the Supreme Court grapples these
arguments, when it comes to decide on the issue sometime
in the new year.
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Ngāi Tahu sues Crown over inaction on Wai Māori Additionally, the “Action Plan” set by the ITP outlines three
“growth engines” - one of which is Māori tech success.
Ngāi Tahu have recently filed proceedings in the High Court,
seeking recognition of their rangatiratanga over wai māori It is proposed that MBIE will work in co-operation with Te
(freshwater) in the Ngāi Tahu takiwā (read the media release Puni Kōkiri and engage with Māori stakeholders to better
here). understand these challenges and the opportunities for
Māori. Once identified, MBIE will partner with Māori to co-
The action is motivated by the lack of action from the Crown
design initiatives to address and respond to the challenges
to address environmental degradation. The iwi will base its
and opportunities.
claim under the Ngāi Tahu Settlement Act 1998.
MBIE and NZTech plan to focus on implementing new
Stage 2 of the Waitangi Tribunal’s inquiry into National
initiatives outlined in the progress update before releasing
Freshwater and Geothermal Resources, released in 2019,
a draft ITP for public consultation. In the meantime,
noted it may be necessary for a test case to be brought
feedback on the ITP update can be provided to:
before the courts on whether native title in freshwater exists
industrytransformationplans@mbie.govt.nz.
as a matter of New Zealand common law (read more here).
Although Ngāi Tahu’s proceeding is at an early stage, it could
be the test case envisaged by the Waitangi Tribunal for
asserting rangatiratanga over awa around Aotearoa.
New option for businesses to identify as Māori
West Coast Council and iwi sign historic pact for resource Businesses in New Zealand, from sole traders to
management registered companies, are eligible to get a New
Zealand Business Number (NZBN). The purpose of a
The first Mana Whakahono a Rohe agreement in New
NZBN is to make doing business faster and easier by
Zealand has been signed between Ngāti Waewae,
linking directly to an online register that contains core
Makaawhio (Ngāti Māhaki), Te Rūnanga o Ngāi Tahu, and
business information.
West Coast District Council. The agreement aims to set out
a framework for iwi and the council to work together, and As part of the NZBN process, there is now the option
provides potential opportunity for power sharing - given the to self-identify as a Māori business. While some
council’s ability to transfer powers to iwi. businesses may already be using “Tāpui (Limited)” as
part of their company name, there remains a lack of
Following Tūwharetoa Māori Trust Board’s landmark
official data relating to Māori businesses. The new
agreement with the Waikato Regional Council earlier
NZBN Māori business identification option is intended
this year, this first Mana Whakahono a Rohe agreement
to enhance collaboration with Māori businesses and
represents a significant step to increasing Māori
allow for more effective measurement of government
participation. The agreement is also one of the few in the
policies regarding Māori economic development.
country that gives iwi voting rights on a council Resource
Businesses may choose to identify as a Māori business
Management Committee (read more here).
based on a number of factors including philosophy
and tikanga, tangible assets such as land or fishing
Digital Technologies Industry Transformation Plan - Māori rights, or intangible assets like kaupapa Māori or
Tech Success identified as key pillar cultural property. Read the full press release here.
In August, the Ministry of Business, Innovation and
Employment (MBIE) released a progress update on its Digital
Technologies Industry Transformation Plan (ITP). The ITP is at
the core of the Government’s Industry Strategy launched in
June 2019 to grow New Zealand’s digital technology sector.
The ITP has been developed in partnership between MBIE
and NZTech to identify the key foundations for a strong
digital technology sector in Aotearoa.
Partnership with Māori is a key principle guiding both the
Government’s Industry Strategy and the development of
the ITP. To effect this partnership, a Māori engagement
workstream aims to understand the challenges and
opportunities that Māori face in the digital technology
sector and design initiatives to address them.
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New additions to the SG Whānau Te Hunga Rōia Māori o Aotearoa - Kura Reo kī Rotorua 2020
Maringi Kete (Ngāti Maniapoto, Ngāti Mahuta, Uekaha) “Whakaheke mā runga i te waka mō Te Reo Māori
and Keanu Britton-Rua (Te Rarawa, Ngāi Tūhoe) join our hei kotahi te hoe ki ōna moemoea” - “Climb aboard
Whānau as part of our 2021 summer clerk rōpū. the Māori language canoe and row as one
towards its aspirations”.
In November, two of our rōia, Taha and Tāwhiao, attended
the Te Hūnga Rōia Māori o Aotearoa Kura Reo in Rotorua.
This marked the third annual conference attended by Māori
judges, practitioners and students, which aims to develop
te reo Māori proficiency in a fully-immersive wānanga
environment.
Following from the launch of our ‘Ngā Mātāpono o Te Reo
Māori: Te Reo Māori principles’, it was a great moment for
both to fill their own kete of knowledge - and to reflect on
their own journeys. Both Taha and Tāwhiao are planning to
develop our own internal Te Reo Māori programme, to help
others with learning basic pepeha, karakia and mihimihi.
Maringi joins us from the University of Waikato and the
TupuToa internship programme, while Keanu joins us from
the University of Auckland.
Special mention must be made of these two, as this year we
had over 800 applications for 16 clerkships around the motu.
Maringi and Keanu will be rotating through our commercial
litigation, intellectual property and local government and
environment teams (LG&E).
Waikato-Tainui scholar, Dannielle Graham, also joined our
Auckland office on a 2-week internship: experiencing what
it is like to work for our commercial litigation, employment,
and LG&E teams.
Dannielle is now in her final year of study at the University of
Contacts
Waikato, working towards her BA/LLB(Hons). JO-ANNE KNIGHT
Hoa Rangap� (Partner)
T: +64 9 977 5340 M. +64 21 242 6821
Congratulations to our new rōia E. jo-anne.knight@simpsongrierson.com
We congratulate our most recent graduates for being GERALD LANNING
admitted to the bar: Avary Patutama (Ngāti Awa, Te Arawa), Hoa Rangap� (Partner)
Jazmine Cassidy (Ngāpuhi, Ngāi Takoto) and Tāwhiao T: +64 9 977 5406 M. +64 21 660 466
E. gerald.lanning@simpsongrierson.com
McMaster (Te Ātihaunui-ā-pāpā-rangi, Waikato-Tainui).
Avary and Jazmine were admitted at the Auckland NICK WILSON
Hoa Rangap� (Partner)
High Court, while Tāwhiao was admitted in Hamilton. A
T: +64 9 977 5147 M. +64 21 825 416
momentous and memorable occasion for all, as all of our E. nick.wilson@simpsongrierson.com
new rōia were admitted in te reo Māori. Ka mau te wehi!
MARK BAKER-JONES
Mātanga Ture (Special Counsel)
T: +64 9 977 5409 M. +64 21 719 806
E. mark.baker-jones@simpsongrierson.com
SANDY DONALDSON
Mātanga Ture (Special Counsel)
T: +64 9 977 5146 M. +64 21 766 866
E. sandy.donaldson@simpsongrierson.com
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