Te Tiriti o Waitangi
11.
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Key issues:
* The Commission and the Treaty
* Crown responsibilities under the Treaty
* Consultation with Maori
* Changes to statute.
Introduction
1.
A significant element of the Commission's processes was the consultation
with Maori, described in detail in appendix 1, section 3.6 (Maori Consultation:
the process). This chapter is not about the Maori response, which is recorded
throughout the Report, notably in appendix 3, section 4 (Analysis of the Maori
Consultation). The present chapter deals with the impact of the Treaty on present
and future uses of genetic modification in this country. It also addresses the
manner in which Maori and Treaty issues are dealt with in the Hazardous
Substances and New Organisms Act 1996 (HSNO).
2.
The Treaty of Waitangi is an agreement signed initially
1
on 6 February 1840
at Waitangi, in the Bay of Islands, by representatives of the British Crown and of
Maori. Under the Treaty, Maori agreed to give the Crown rights to govern and
promote British settlement, and the Crown guaranteed Maori protection of their
interests, and full citizenship rights.
2
3.
The importance of the Treaty as a founding document in New Zealand
history has been recognised from the beginning, particularly in the Maori
community.
3
However, as a matter of law and enforcement in the courts, it came to
prominence in the latter half of last century. The courts have described the Treaty
relationship as a partnership,
4
and a jurisprudence of formulating "principles of
the Treaty" has evolved. These principles have emerged from decisions of the
Waitangi Tribunal (a standing commission of inquiry charged with investigating
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breaches of the Treaty), from the courts, and, on occasion, from government
publications.
5
Agreement on what the principles are, and the precise form in
which they should be stated, is still developing.
4.
However, two fundamental principles were referred to in many of the
submissions we received on this matter. For this reason, they are noted here as
Treaty principles particularly relevant to the debate on genetic modification.
They are:
*
active protection: the Crown has a duty of active protection of Maori interests
*
cooperation: the Treaty requires each party to act reasonably and in good
faith towards the other; this requires the Crown to consult with Maori so as
to make informed decisions about matters of significance.
The Treaty and the Commission
5.
It became clear that some submitters saw the Commission itself, and its
processes, as in breach of the Treaty of Waitangi. They referred to matters that
preceded the establishment of the Commission, and on which we are therefore
unable to comment, for instance lack of consultation with Maori about the terms
of reference, and about who should be appointed as Commissioners.
6
Others
focused on matters outside the Warrant, such as a perceived obligation to
"implement" the Treaty and effect constitutional change before examining any
questions of genetic modification.
7
6.
Some submitters referred to the need to acknowledge rangatiratanga,
particularly over Maori resources.
8
Another submitter criticised the legislation
governing the Commission (the Commissions of Inquiry Act 1908) as in breach of
the Treaty because its provisions were seen as not permitting full and active
consultation with Maori.
9
It is beyond our brief to comment specifically on these
points.
7.
Criticism of the Commission's processes was based on the propositions
that the Commission was an agent of the Crown and, as such, obligated to take
reasonable steps to consult with Maori, in terms of Treaty principles, so as to
inform itself sufficiently. As to the first, legal advice from the Crown Law Office
was that the Commission was not an "agent" of the Crown. The test of Crown
agency has two parts:
*
whether the functions of a body properly belong within the province of
government, and
*
the nature and degree of the control that Ministers and other central
government agencies exercise over the body.
10
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8.
Crown Law advised that, while the first part was satisfied, the second and
more important test was not. From the terms of the Warrant and the manner of
the Commission's appointment (ie by the Governor-General in Council) it is clear
that the Commission was expected to carry out its work and reach its conclusions
independently of government, which is how, in fact, we have operated. The
Commission's independence, in the Crown Law Office's opinion, precluded it
from being an "agent" of the Crown.
9.
However, even were the legal position otherwise, the Commission is confident
that it more than fulfilled the requirements of reasonable consultation for the
purpose of informing itself before preparing this Report. As previously indicated,
the way in which we set out to do this is recorded in appendix 1, section 3. With
the help of views obtained at an initial scoping hui, the Commission arranged an
extensive programme of information workshops and hui. Maori also participated
in public meetings, formal hearings and the public submissions process.
Nevertheless, concerns were voiced that the time frame imposed by the
Commission's tight reporting requirements would impair the consultation process
because of absence of sufficient information and knowledge about the issues, and
the lack of time to consider and respond to them.
10. In part, the workshop programme was a response to these concerns, which
the Commission heard less frequently as the consultation proceeded. The
Commission wishes to add that, in the initial stages of the inquiry, it heard similar
concerns at public meetings; again, they were voiced less often as the nature and
extent of the Commission's consultation process became apparent.
Crown responsibilities under the Treaty
11. The Warrant sought views on the Crown's responsibilities in relation to
genetic modification under the Treaty. There has been some divergence in
submissions about what this part of the Warrant might mean:
*
that Maori views have "no primacy" resulting from the Treaty, but that
Maori had established a "community of interest", which required their
views to be taken into account along with others
11
*
that the Crown's obligations in this area were unclear
12
*
that it was premature to address this matter while such cases as the WAI 262
claim to the Waitangi Tribunal, or the appeal to the High Court (the
Bleakley case
13
), were still outstanding.
14
Regardless of that, however, we are
required to report on Treaty obligations. So far as the Bleakley case is
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concerned, in fact the High Court decision became available before the
Commission completed its work and has been taken into account.
12. There were written and oral comments, in both Maori and non-Maori
submissions, that the Treaty is a relevant or essential consideration.
15
For the
Maori Congress [IP103] it was, in fact, the starting point for consideration. As far
as the obligations arising from the Treaty are concerned, there has been a measure
of consistency in submissions from Maori and non-Maori sources. Both have
referred to the duty or responsibility for active protection of Maori interests, and
the duty or responsibility to consult.
16
Reference has also been made to duties of
equity and redress, acting in good faith, reasonableness and cooperation.
17
As one
submitter has put it:
... the Crown's responsibilities under the Treaty of Waitangi mean relating issues about GM
back to the principles of partnership, protection and participation ...
18
13. Other submissions have referred to what could be called an economic
element in applying the Treaty. For some, a perceived lack of clarity about the
principles means that a pragmatic approach is needed, calling for Crown action
on behalf of all New Zealanders to help secure national benefits through genetic
modification.
19
But there has also been comment that:
The Treaty of Waitangi requires the Crown to promote the well-being and economic
prosperity of all New Zealand's peoples. A strategy in which the Crown approves and
encourages the responsible research, development and application of genetic modification
in New Zealand is consistent with this requirement. The desire of Maori to place genetic
modification technologies under fair scrutiny should be supported.
20
14. As noted, certain points emerge as particularly relevant to our inquiry,
namely the principles of consultation, active protection of Maori interests, and of
partnership. In addition, there is the pervasive principle that the Treaty calls for
reasonableness and cooperation.
21
The obligation to consult requires reasonable
steps to be taken to consult. The principle of partnership requires the Treaty
partners to cooperate to make the partnership work.
22
15. We consider that the responsibilities to consult and to actively protect
Maori interests are closely linked: consultation is needed, for instance, to identify
the relevant interests and how best to protect them. We therefore discuss aspects
of the process of consultation briefly here. Discussion of the cultural concepts
underpinning the Maori approach to consultation is contained in chapter 3
(Cultural, ethical and spiritual issues).
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Consultation
Consultation requirements
16. Crown consultation with the Maori Treaty partner is a fundamental part of
any process for dealing with questions of genetic modification. Over a decade
ago, the Court of Appeal stated:
We think it right to say that the good faith owed to each other by the parties to the Treaty
must extend to consultation on truly major issues.
23
17. We have looked at what such consultation might involve. As a matter of law,
the Courts have indicated that,
24
in general, consultation means:
*
providing information
*
providing an opportunity to comment on a proposal
*
that the decision-maker maintains an open mind in order properly to
consider the views expressed.
18. We note that the importance of consultation between the Treaty partners
was raised at public meetings, and at every hui in our consultation process, for
instance by Sir John Turei (Tuhoe) at Orakei Marae.
19. We were reminded at our formal hearings that consultation is not the same
as agreement, or even negotiation.
20. The responsibility to consult is not unlimited. In 1987 the Court of Appeal
said:
... the notion of an absolute open-ended and formless duty to consult is incapable of
practical fufilment and cannot be regarded as implicit in the Treaty. I think the better
view is that the responsibility of one Treaty partner to act in good faith fairly and
reasonably towards the other puts the onus on a partner, here the Crown, when acting
within its sphere to make an informed decision, that is a decision where it is sufficiently
informed as to the relevant facts and law to be able to say that it has had proper regard to
the impact of the principles of the Treaty.
25
21. The amount of consultation required to meet this test will vary.
26
Practical difficulties
22. We have heard about the difficulties of applying these principles in
practice. For instance, applicants to the Environmental Risk Management
Authority (ERMA) who have been advised to consult with Maori about their
proposals have spoken of their difficulty in knowing whom to consult. Cost has
also been a concern.
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23. On the other hand, there are Maori concerns that consultation is often
carried out too late, is too brief and that, on occasion, isolated individuals have
been expected to respond on behalf of one or more hapu or iwi, or sometimes on
a national basis. Dr Mere Roberts, of Nga Kaihautu Tikanga Taiao, an advisory
committee of ERMA, spoke of the "almost impossible task" of speaking on
behalf of Maori given current time and resource constraints, and was also
concerned about the pressures and difficulties of "the solitary Maori on an
IBSC".
28
Other submissions stressed the importance of acknowledging Maori
scientific knowledge, and the need to avoid regarding Maori views solely as a
"cultural" response to consultation.
29
Moana Jackson spoke of the perception
that:
... the views of our people are at best a cultural clip-on, and at worst irrelevant to the
"real" scientific, ethical, and intellectual issues that need to be resolved. Our people are
being silenced even as they are overwhelmed with cultural sensitivity or embraced in
Treaty partnership.
30
24. It is outside our brief to comment in a general way on consultation processes
with Maori. However, in this chapter, and also in chapter 6 (Research), we
comment on aspects of consultation with Maori specifically in the context of
genetic modification issues.
Successful consultation
25. We heard of successful consultation processes. An outline of the process
used by Carter Holt Harvey is contained in the diagram overleaf, which was
attached to the company's submission [IP17].
31
The key elements of the process
are that:
*
tangata whenua are identified with the assistance, where possible, of the
consent authority, eg ERMA
*
a consultation process is agreed with the tangata whenua including outcomes,
time frames and costs
*
consultation is carried out before an application is lodged with the consent
authority
*
where there is an "ongoing relationship" a memorandum of understanding
is developed with the tangata whenua group.
26. The importance of consulting the group or groups with manawhenua over
a relevant area is apparent from the background to the Bleakley case referred to in
paragraphs 34 to 41. A valid mandate cannot be obtained from those who have no
direct responsibility for the area in question. We have discussed this issue in
chapter 6 (Research).
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27. Equally, jointly building an adequate and agreed time frame for the
consultation and discussing costs before they are incurred, together with
consultation before a decision is made on an application or other project, are
likely to be vital steps in a successful process. The significance of this last step was
referred to by the Parliamentary Commissioner for the Environment [IP70]
when he noted that in his experience, for many iwi and hapu, consultation is seen
as "a reaction to someone else's initiative" rather than "full and equal involvement
from the outset in considering the options and determining the kaupapa".
32
28. Attention to devising a jointly acceptable consultation process may be
time-consuming initially, but, if done well, can result in direct responses in later
cases as both trust and a knowledge base in each party is established. A
memorandum of understanding is one way to formalise this. We were impressed
by the example provided by Carter Holt Harvey.
29. There will be other examples of successful consultation by the Treaty
partners, and certainly there are publications from the public sector with
suggestions of how to approach consultation.
33
We think the time has passed when
parties could credibly say that they do not know how to undertake appropriate
consultation, or where to begin.
30. We envisage that Toi te Taiao : the Bioethics Council (for further details,
see chapter 14: The biotechnology century) will have a role in drawing up a
framework of principles for both Treaty partners. This framework may cover
consultation to bring the elements of "best practice" together in one place. In
addition, we envisage that Nga Kaihautu Tikanga Taiao, the Maori advisory
body of ERMA, will continue to look at specific applications made to that body,
and that local iwi will be consulted both through IBSCs or their equivalent, and
directly where any proposals affect their locality.
Giving statutory effect to the principles of
the Treaty
31. So far as relevant, sections 5, 6 and 8 of HSNO provide:
5. Principles relevant to purpose of Act ­ All persons exercising functions, powers, and
duties under this Act shall, to achieve the purpose of this Act, recognise and provide for
the following principles:
(a) ...
(b) the maintenance and enhancement of the capacity of people and communities to
provide for their own economic, social and cultural wellbeing and for the reasonably
foreseeable needs of future generations.
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6. Matters relevant to purpose of Act ­ All persons exercising functions, powers, and
duties under this Act shall, to achieve the purpose of this Act, take into account the
following matters:
(a) ...
(b) ...
(c) ...
(d)
the relationship of Maori and their culture and traditions with their ancestral
lands, water, sites, wahi tapu, valued flora and fauna, and other taonga: ...
8. Treaty of Waitangi ­ All persons exercising powers and functions under this Act shall
take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
32. The Commission heard submissions regarding the expression "shall take
into account", for example from Te Runanga o Ngai Tahu [IP41], which in its
written submission said:
... there needs to be a thorough review of HSNO in relation (to) provision for tangata
whenua. The minimum provision in relation to iwi concerns values should be to "recognise
and provide for".
34
33. Although this submission described "recognise and provide for" as the
minimum acceptable formula, reference to cognate statutory provisions and case
law shows that this would provide maximum protection. Further, discussion with
Ngai Tahu representatives during their oral presentation failed to identify any
intermediate position between "take into account" and "recognise and provide
for" (or wording to similar effect).
34. In the Bleakley case, the High Court discussed the meaning of the statutory
expressions in the sections set out above, and the distinctions between them.
Justice McGechan said:
There is a deliberate legislative contrast between s.5 "recognise and provide for" and s.6
"take into account". When Parliament intended that actual provision be made for a factor,
Parliament said so. One does not "provide for" a factor by considering and then discarding
it. In that light, the obligation "to take into account" in s6 was not intended to be higher
than an obligation to consider the factor concerned in the course of making a decision ­
to weigh it up along with other factors ­ with the ability to give it considerable, moderate,
little, or no weight at all as in the end in all the circumstances seemed appropriate.
35
35. Although written with reference to sections 5 and 6, this reasoning
must apply equally to section 8, dealing with the principles of the Treaty. In
this context, the wording "take into account" is a commonly used statutory
formula, found also in section 8 of the Resource Management Act 1991.
Sometimes, a stronger form of words has been used, the State-Owned
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Enterprises Act 1986, for example, stating in section 9:
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the
principles of the Treaty of Waitangi.
while section 4 of the Conservation Act 1987 provides:
The Act shall be so interpreted and administered as to give effect to the principles of the
Treaty of Waitangi.
36. Although semantically submitters may have been correct in saying that the
last example is merely the State-Owned Enterprises Act formula stated
affirmatively, it appears to represent the high-water mark of statutory recognition
of Treaty principles to date.
37. In addressing the submissions seeking a stronger formula, a distinction
needs to be drawn between section 8 considerations, and those dealt with in
sections 5 and 6.
38. As noted, section 5(b) requires the Authority to "recognise and provide for",
among other things, the maintenance of the capacity of communities to provide
for their economic, social and cultural wellbeing. Understandably, section 5(b) did
not feature prominently in the judgments in the Bleakley case. It is not specific in its
applicability to Maori or any ethnic group.
39. Regarding section 6, the High Court in Bleakley accepted that, in general,
references to taonga would include intangible spiritual and cultural aspects, both
as related to tangible taonga, and in their own right.
36
In relation, specifically, to
the use of the term in section 6(d), Justice McGechan said the issue was not so
simple. The concept had been transplanted from the Resource Management Act,
with its emphasis on physical considerations rather than the need to consider
intangible and spiritual beliefs in their own right. However, in accordance with
usual concepts, and consistently with the Treaty, the Judge was satisfied that the
reference to "other taonga" was meant to include intangible cultural and spiritual
taonga. Justice Goddard reasoned that the addition of the words "and their culture
and traditions" to "Maori" was designed deliberately to underscore the special
nature of the relationship of Maori ("as opposed to any other group") with the
relevant matters listed in the subsection. However, like Justice McGechan, she
made it clear that the matters to be taken into account under section 6(d) were not
amenable to classification as purely physical entities: "some are essentially
spiritual; some are also intangible; all have intrinsic value to Maori".
40. In the result, the High Court interpreted section 6(d) as requiring those to
whom the section is directed to take into account, not only the relationship of
Maori to their ancestral lands, sites and other taonga of a tangible kind, but also
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Maori cultural and spiritual values not specifically linked to physical or tangible
features.
41. From the Bleakley judgments it is clear that, given the facts of the case, had
the Authority accepted the evidence about particular spiritual and cultural values
of an intangible kind, and decided to give effect to them, the only available
outcome would have been to decline the application, regardless of whatever merit
it might have had, such as research or health benefits. It follows that, had section 6
required the Authority to "give effect" to Maori spiritual and intangible values,
and had the application been found to be in conflict with them, then, regardless of
merit in other respects, the Authority would have been bound to decline the
application.
42. We are unable to recommend that section 6 should be amended so as to
afford even stronger protection for Maori values. It would be contrary to the spirit
and the principles of the Treaty were the spiritual and cultural values of either
Treaty partner given pre-emptive standing. In our view, the appropriate framework
for the consideration of applications under HSNO is that the spiritual and cultural
values of all New Zealanders ought to be taken into account, as envisaged by
section 5.
Incorporating reference to the Treaty in legislation
43. The manner in which reference to the Treaty of Waitangi ought to be
incorporated raises different issues. Legislation has given steadily increasing
significance to the concept of the principles of the Treaty during the quarter
century that has elapsed since enactment of the Treaty of Waitangi Act 1975. As
indicated earlier in this chapter, definition of what constitutes the principles
continues to evolve, mainly through pronouncements of the courts and the
Waitangi Tribunal, and academic discussion. As stated, a number are regarded as
well settled. We do not see why legislation seeking to incorporate such fundamental
concepts need be half-hearted or ambiguous. In our view the principles should be
incorporated in plain terms, and not left in the potentially token state of being
"taken into account". We would favour amendment of section 8 so that, on the
precedent of the Conservation Act, it is clear that effect is to be given to the
principles of the Treaty. We note the High Court has said that, since the Treaty
was designed to have general application, such general application "must colour all
matters to which it has relevance",
37
so it may be that what we are proposing goes
no further than what, in many cases, would be regarded as the appropriate legal
interpretation.
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Recommendation 11.1
that section 8 of the Hazardous Substances and New
Organisms Act 1996 be amended to provide that effect is to be
given to the principles of the Treaty of Waitangi.