BEFORE THE WAITANGI TRIBUNAL
IN THE MATTER
WAI 900
of the Treaty of Waitangi Act 1975
AND IN THE MATTER
of a claim by Te Rarua McClutchie-Morrell
MEMORANDUM OF COUNSEL – BOYCOTT OF AIRING OF GRIEVANCE HEARINGS Dated: 24 August 2011
Kathy Ertel & Co Barristers and Solicitors PO Box 27042 Wellington 6021 Counsel appearing: Linda Thornton
MAY IT PLEASE THE TRIBUNAL 1.
This reply is filed on behalf of the urgency applicants: Wai 901
Laura Thompson, Te Papatipu o Uepohatu claim
Wai 1171
Albert Beach, The Manutahi A23 claim
Wai 1272
Rapata Kaa, The Ruawaipu Active Protection Claim
Wai 1275
Renata Tawhai McClutchie, Te Whānau a Umuariki and East Coast Wars claim
Wai 1285
Stephen Beach, The Ruawaipu Income Tax and Revenue claim
Wai 1332
Victor Beach, The Ngāti Uepohatu Ethnic Suppression Claim, and
Wai 1381
Te Rarua McClutchie-Morrell, Ngāti Uepohatu Lands and Resources Claim,
―the claimants‖. 2.
Pursuant to the Memorandum-Directions of the Presiding Officer (Wai 2340, #2.5.2), three memoranda (representing 10 claimants)of opposition have been received, one from each of the Crown (#3.1.9), Te Runanga o Ngati Porou (TRONP) (#3.1.8) and 7 East Coast claimants that support the settlement (#3.1.11). There were 24 claimants who support the application (##3.1.3, 3.1.5, 3.1.6, and 3.1.12).
3.
There are two main bases raised in opposition to the urgency: i.
The assertion that the hearings are still underway and therefore no Tribunal intervention is warranted; and
ii.
The Tribunal cannot or should not intervene due to the pending Ngati Porou Claims Settlement Bill.
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4.
We address both of these issues below. We also address application of the case Haronga v. Waitangi Tribunal1 to the claimants’ contentions that they are entitled to a hearing and to support the relief requested.
The hearings 5.
It is mainly the Crown that asserts the argument that because there are going to be other hearings in the future, the claimants cannot make out the elements needed to warrant the exercise of the Tribunal’s urgency intervention.
6.
To support this contention, the Crown submitted a brief of evidence of Marian Smith, an OTS official, to outline the Crown’s version of the evolution of the Airing of Grievance hearings.
Ms. Smith’s evidence deserves a few
comments. Consultation process 7.
Ms. Smith concedes that the details of the Airing of Grievance hearings were agreed between TRONP and the Crown. The Crown has deemed TRONP to represent claimants, when the Crown knows the opposite to be the case. Ms. Smith’s evidence describes a process whereby written comments were submitted by claimants and/or their counsel in regard to the Airing of Grievance hearings. The comments are summarised without including the substance of these submissions. Counsel is aware that numerous objections to the proposed format were submitted, but they are not described or attached to Ms. Smith’s evidence.
Although one submission of several, counsel’s
submissions is attached as Exhibit C. [what is the poin of refering to this?] Among other things, it was submitted that 10 days of hearing time was likely to be insufficient. Lead time for preparation was raised as an issue as well as the amount of time needed to present grievances related to the claims. Demand was made for a hearing equivalent to a Tribunal hearing. 8.
On 29 July 2011 OTS responded by letter which addressed some of the comments it had received on the Airing of Grievance process. A copy is attached as Exhibit D to Ms Smith’s evidence. The response to all issues
1
Haronga and others v. Waitangi Tribunal and others SC54/2010 [2011] NZSC 53
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raised on the format of the hearings was that the facilitator would provide a report to participants and transcripts of the presentations would be submitted to participants for checking before publication. 9.
These comments do not respond to issues raised concerning natural justice requirements for a fair hearing.
10.
This letter also announced that Sir Wira Gardiner would be the facilitator and solicited nominations of co-facilitator. The claimants we act for and others like them were concerned about Sir Wira’s close ties to Ngati Porou. They felt the facilitator should be neutral. Counsel was instructed to object to OTS about the facilitator. This was done by letter dated 16 August 2011, attached as Exhibit E to the Smith evidence which also suggested alternative facilitators. In response an email message was received the next day from Crown OTS officials: ―Kia ora Linda Thanks for your letter. The points you raise are noted. Nga mihi Ron.‖ [Exhibit F]
11.
The Crown’s response was to set fewer than 3 days’ hearing time and allocate 20 minutes per submitter on one weeks’ notice.
No co-facilitator was ever
named. Hearings are not an alternative remedy 12.
It cannot be said that the Crown’s plans to have the remaining 9 days of hearing is an alternative remedy. The assertion ―Further hearings are being organised under the Airing of Grievance processes‖ does not address the substantive defects raised in this urgency application, namely that the Claimants want and are entitled to a Tribunal Inquiry into their claims.
13.
The issue of the Airing of Grievances hearings is a good example. Ms. Smith’s evidence was The Minister for Treaty of Waitangi Negotiations gave a closing address to the hui at Te Araroa on 25 August. He issued an open invitation for claimants who had declined to attend to contact his office so that a mutually convenient time 4
could be arranged for the claimants to present their submissions to him in person. . . . 14.
This passage is a bit confounding. The people whom he was addressing were not there. Nor have they been otherwise informed until the Marion Smith Brief of Evidence was served on counsel. Neither TRONP nor OTS informed claimants or counsel.
15.
In fact, the first clue given that there would be further hearings was found in the 1 September 2011 update by whom (Wai 900, #3.1.432). Even though the Crown asserts at paragraph 15 of its Memorandum (Wai 2340, #3.1.9) that ―officials are seeking renewed expressions of interest‖ neither the claimants nor counsel have received any contact from the Crown on this issue.
16.
At paragraphs 18 – 20, the Crown asserts that the claimed prejudice is really a result of the ―decision by Ngāti Porou collectively‖ to settle the claims. The Crown further asserts that the previous Tribunal urgencies have addressed these issues. In fact, Ngāti Porou may have collectively decided to settle its claims the problem, not addressed, is that the Crown is also permitting Ngāti Porou to settle the claims of those who are not Ngāti Porou. The issue of tribal identity has never been heard or decided.
Potential prejudice persists 17.
Moreover, the question of loss of tribal identity and loss of land are alleged in this application as prejudice resulting from the failure to hold hearings. The previous urgency hearings claimants have participated in concerned mandate, as well as an application to review the ratification (Wai 2311), which was declined. These issues were all part of the conveyor belt that draws the claimants closer to the ultimate prejudice that arises from Tribunal proceedings—legislative change of their tribal identity and transfer of their land to others.
It is as if the Waitangi Tribunal had heard their claims and
decided that they were not well-founded. However, no such hearing has ever been held nor such findings made
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18.
To suggest that claimants are somehow part of ―Ngāti Porou collectively‖ deciding to settle claims is a complete fiction that has been perpetuated by the Crown and should not be accepted by the Waitangi Tribunal.
19.
Claimants have a right to a hearing under section 6 of the Treaty of Waitangi Act 19752 and there is nothing found in New Zealand statutory or case law that supports the notion that Crown policy can override the claimants’ statutory and natural justice rights to a hearing.
20.
For example, the Crown asserts that there will be plenty of time to prepare because the hearings will be sometime after the general election. [Wai 2340, #3.1.9, para 23]
This is not the same as promising adequate notice. OTS
originally announced that these hearings would be held in July. Holding them in August does not automatically provide adequate notice—in fact, claimants and counsel were only given one weeks’ notice of the actual dates of the hearings.
So saying now that a hearing is going to take place after the
election, is not the same as giving adequate notice of the hearings. 21.
And to say that the hearings had been publicly ―known‖ is completely misleading. The actual dates of the hearing were not known and in fact, the Crown’s silence for over 6 weeks led to a great deal of confusion and anxiety in the claimant community.
Claimants had heard through informal talk that
there might be only 3 days of hearings. Claimants raised this at the Select Committee meeting.
There was another rumour circulating among the
claimant community that the hearings might be extended back to the 10 days described in the Deed of Settlement. There was simply nothing from the Crown that gave counsel or claimants any real guidance on what to prepare for. The claimants intend to inform the Crown of the bases for their claims. This cannot be done in 20 minutes and it cannot be done with 1 week’s preparation. 22.
And the Crown has said absolutely nothing about how it will determine the length of time for presentation of claims. This is particularly worrying in light of the fact that attention was given to inform the Crown about claims that
2
All subsequent citations to statute are to the Treaty of Waitangi Act 1975 unless stated otherwise.
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would require substantial time.
In this regard, at OTS request, Counsel
provided some detail (beyond filling out the registration form) about the presentations of various claimants she registered. This effort proved to be a complete waste of time because in fact OTS was all set to issue a 20 minute slot whether a claimant was presenting about the loss of a one-acre block or the entire tribal identity and papatipu of Ngati Uepohatu. Preparation to make a 20 minute presentation is quite different to that for a thorough presentation. The Crown had all the information but it shared very little with the claimants. 23.
And the effort to solicit information from counsel, in our submission, was meant to be misleading.
It was meant to appear that OTS was giving
consideration to the relative presentation needs of the presenters. There is no such reflection in a schedule of 20-minute time slots to everyone. 24.
Despite assertions that the hearings are still to be held, the Crown has carefully avoided agreeing not to do the same things again.
We note the Crown’s
unhelpful suggestion that claimants can reapply for urgency if the next plan does not work out. [Crown memorandum, #3.1.9, para 30] 25.
In fact, it appears that the Crown is trying to reinvent history with the pretence that hearings have only begun while glossing over the fact that had claimants not boycotted the hearings and filed this urgency application, they would have been subject to a 20 minute presentation and then wiped out of history forever by legislation.
26.
Ultimately, then, the claimants find themselves back to where they were on 1 May 2011 just before the Crown revealed the details of the Airing of Grievance hearings and requested their comments. The only difference is they are now down one day – to 9 days – and the Crown is proposing to again hear those who have already presented! [Brief of Evidence of Marian Smith, para 18.2]
27.
Although the Crown’s memorandum refers to developments after the urgency application was filed [para 14], there is in fact very little that has changed. The Crown has not offered any assurances or any other format change that should lead this Tribunal to the conclusion that anything is different than it 7
was when this application is filed. In fact, it is precisely because the Crown is not being forthcoming that the Tribunal’s jurisdiction is being invoked. The Crown’s comments ―further hui to be organised for the period after the general election‖ are likewise not helpful. There is presumptively an eternity of time after the general election and claimants are entitled to have a clear idea of when their claims are to be heard, and some reasonable assurance that they will be given adequate time to present their grievances—this is their only opportunity to address the Crown to establish their Treaty grievances and they intend to do so. Claimants seek natural justice hearings 28.
And to avoid doubt, claimants are not merely seeking Airing of Grievance hearings. Claimants are seeking a proper natural justice hearing as guaranteed to them under s 27 of the New Zealand Bill of Rights Act 1990. Submissions to OTS have raised the fact that claimants are entitled to a hearing under s 6. Under some formats, the airing of grievance hearings may have met natural justice standards; under the status quo, there is nothing to suggest that claimants’ rights to a hearing are being protected.
29.
The Crown’s memorandum [Wai 2341, #3.1.9, para 22] is very open about the fact that the Airing of Grievance process is not about natural justice where ―formal evidence is expected to be marshalled and briefed in support of a legal case.‖ It has been made clear that the Crown will not be engaged in Crossexamination and there will be no technical witnesses, nor will the Crown present evidence to support its contentions.
This is because the Crown has
already decided what it will do to settle these claims. 30.
For the claimants, however, the Crown is acting without full information and they intend to put on the record before the Crown the facts about their tribal identity and their ownership of land. This is the claimants’ opportunity to be heard; a denial of this right is a violation of their natural justice rights, s 6, and s 27(a) and (c) of the New Zealand Bill of Rights Act 1990.
31.
Of importance to this issue is the case Haronga v. Waitangi Tribunal. This case addressed an application for urgent hearing and how the Waitangi 8
Tribunal should exercise its jurisdiction.
It has been suggested that the
Haronga decision’s protections are offered only to those who have received a Tribunal hearing with a finding that their claims are well-founded. 32.
This narrow reading of Haronga is not supported by the text of the case itselef. The Supreme Court in Haronga held that even after a hearing which resulting in a finding that that the urgency applicant’s claim was well-founded, the Tribunal could not avoid granting hearing on a resumption application. It is the principal function of the Waitangi Tribunal to inquire into and make recommendations on claims submitted to it under s 6 of the Treaty of Waitangi Act.
With limited
exceptions, the Tribunal is obliged to inquire into every claim. This involves determining whether the claim of Crown action inconsistent with the Treaty of Waitangi is well-founded, and if so, whether the Tribunal should recommend to the Crown that action be taken to compensate for or remove the prejudice. While the Tribunal is not obliged to recommend a remedy for all claims it has decided are well-founded, it is required to determine whether it should do so. Its recommendations may either be in general terms or indicate specific actions which, in the opinion of the Tribunal, the Crown should take. Each of these steps if s part of the inquiry which it is the Tribunal’s duty to undertake. The obligation to inquire into each claim is not discharged by a determination that the claim of Treaty breach is well-founded.3 33.
The Tribunal has a duty to hear all claims, including those of claimants. It is evident from Haronga that the duty to hear a claim arises from inception; it is not limited to applications that arise after a decision that a claim is wellfounded. The duty to hear arises from statute, not from an earlier finding of well-foundedness.
3
Haronga, para 80.
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34.
The Haronga court based its holding on the statutory history of the Treaty of Waitangi Act 1975 and 1988. A purpose of the 1988 Act was accordingly to protect both existing and likely future claims submitted to the Tribunal. . . . [Âś] Implicitly, Parliament, like the Court, was concerned to protect such claims on an individual basis.4
35.
The purpose of s 8HB was described by the Court The purpose accordingly was to protect claimants by supplementing their right to have the Tribunal inquire into their claim with the opportunity to seek from the Tribunal remedial relief which would be binding on the Crown.5
36.
The resumption application then is a remedy that may be invoked after a finding that the relevant claim is well-founded. The Haronga Court found that claimants had a right to a hearing and further that their rights were not discharged by entering into negotiations after a finding of well-foundedness.
37.
In fact, Haronga found Given the statutory obligation, discussed above, to inquire into every claim and consider making recommendations where they are well-founded, the general findings and indications given in the report cannot fairly be read as fulfilling the responsibilities of the Tribunal under s 6(2) and s8HB(1). [Emphasis added]6
38.
The Court recognised that there was a difference between the recommendatory powers and binding powers and concluded that: Where matters reach a stage, as here, where settlement will defeat the claimants’ right to have resumption determined by the Tribunal, the fact that the compulsory jurisdiction is
4
Haronga, paras 65, 66 Haronga, para 76, citing s 6(2) Treaty of Waitangi Act 1975 6 Haronga, para 95 5
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invoked cannot be irrelevant. . . . It could not be in the spirit of the legislation or its policy of providing greater security to Māori claimants in obtaining return of land to treat the loss of the opportunity as irrelevant. It was itself a right of real value. ...7 39.
The refusal to permit a hearing where claimants present their claims is part of the ultimate grievance because denies claimants the opportunity – the only opportunity they will ever have—to present to the Crown their claims about their rights to recover their land.
40.
The Crown has been heard to allege the right to resumption and the rights recognised by Haronga only apply after the tribunal has found their claims to be well-founded. Any denial of process that denies them the right to establish that their claims are well-founded ultimately denies them the right to the remedy of resumption and violates the principles recognised by Haronga.
41.
Claimants here will never get to a resumption hearing unless their rights under s 6 Treaty of Waitangi Act 1975 as recognised by Haronga are protected. Claimants have not yet had a finding of well-foundedness on their claim or claims, but this is through no fault of their own. To say that protections of the right to seek resumption of land only accrue after a finding of wellfoundedness would put the Crown in a position to be able to defeat these rights by intervening to avoid the hearing process—effectively putting the cart before the horse.
42.
There is nothing in statute or case law to suggest that the Crown can elevate its policy over the plain language of section 6. If a claimant has a right to seek return of land, that claimant also has a right to get through the antecedent hearing process to obtain a finding that her claim is well-founded in order to support the resumption application. These are the steps of the inquiry that the Tribunal has a duty to undertake.
7
Haronga, para 106
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43.
Moreover, the Crown should be estopped to deny that the claimants’ claims are well-founded.
It has negotiated a very substantial settlement with
TRONP/Te Haeata partly on the basis of those claims. 44.
We note that Haronga also held that claimants have a right to withdraw their mandate for negotiations. We consider that there was no legal compulsion for Mr. Haronga and the proprietors of Mangatu Incorporation to remain within the settlement process.
45.
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The Haronga mandate was affirmatively given and negotiations begun on that premise. The filing of an urgency application by Mr. Haronga was interpreted by the Court to amount to withdrawal of mandate.
46.
In this case, the claimants are certainly entitled to the same protections. They have never rested in their efforts to obtain hearings and determination that their claims are well-founded and seek return of their land. Yet, instead of an affirmative grant of mandate, these claimants have been deemed to have given their mandate. This is so despite their objections from the very beginning of the process in 2007 that have continued until now.
They have filed and
participated in an urgency hearing on the mandate issue, they have filed an application with the Maori Land Court under section 30 et seq of Te Ture Whenua Maori Act 1993, they have filed an application for urgency to review the ratification, they have contacted the United Nations Special Rapporteur on the rights of indigenous peoples, who recommendation that ―special measures‖ be implemented for these claimants. They have written letters and carried petitions. They appeared at the Select Committee meeting only to be told that the Committee wasn't interested in their whakapapa or their claims. Separately or together, these acts constitute a withdrawal of their mandate – the mandate involuntarily imposed on them. 47.
And the deferral of the Wai 900 inquiry should not be an instrument of the termination of the claims. The Haronga court addressed this issue:
8
Haronga, para 99
12
It follows from this statutory scheme that the power under s 7(1A) cannot be used, consistently with its purpose, in order to defeat a claim, in the sense of precluding it from being the subject of an inquiry or precluding completion of that inquiry. In that respect, an inquiry into a claim is not complete until the Tribunal has determined whether the claim is well-founded and, if so, whether it should recommend a remedy. . . . But the exercise of the s 7(1A) power for scheduling reasons or to permit negotiated settlement does not end the inquiry. It does not remove the Tribunal’s obligation to complete an inquiry by adjudicating on whether it should make remedial recommendations for claims that it has decided are wellfounded. If settlements do not eventuate or if irremediable prejudice to the claimants will result from deferral for scheduling purposes, the Tribunal must reconvene its adjourned inquiry to adjudicate on whether recommendations should be made.9 48.
In this case the claimants will suffer irremediable injury. Their papatipu lands will be given to others and their identity legislated into obscurity.
Deed of Settlement 49.
The Crown has asserted that the Deed of Settlement cannot be enforced as it is not yet final.
50.
To begin with, the Crown asserts that claimants are bound by the Deed of Settlement because it was Ngāti Porou who negotiated it and they are defined as Ngāti Porou.
This, however, is circular logic—TRONP/Te Haeata
negotiated something that defined someone else so they can’t complain about what was negotiated. This definition is not the definition that Claimants have for themselves. They define themselves as Ruawaipu iwi (Wai 1272 and 1285) and Ngāti Uepohatu iwi (Wai 901, 1171, 1275, 1332 and 1381). The Crown calling them Ngāti Porou does not magically make it so. 9
Haronga, paras 84, 87
13
51.
The Crown then asserts that because they have defined the Claimants as Ngāti Porou and they are therefore bound by the Agreement, they are particularly bound by the provision that ―the parties‖ have reached that prevents use of the deed in evidence before a tribunal.
52. Claimants do not feel particularly bound by this provision inasmuch as they have not agreed to it, but should the Tribunal feel compelled to apply these provisions, Claimants must then point out that there would be no evidence of any hearings, past or future–even the watered down Airing of Grievance hearings that the Crown may ultimately plan to provide. Accordingly, there would be nothing before the Tribunal that would indicate that there are any hearings of any type that address the statutory hearing under s 6. 53. Moreover, the application does not address the Bill. It addresses the issue of rights to a hearing. It addresses Crown conduct in preventing claimants from getting the hearing they seek to prove their claims are well-founded and seek redress of their grievances in the form of return of their land. 54. The application also addresses the grievances and the conduct of the Crown in perpetuating them. Had the Wai 900 hearings not been cut off before the Deed of Settlement was concluded, the Crown might have been able to deal with the evidence of original land ownership and tribal identity in its settlement—as the Treaty grievance process was set up to work. Instead, the Crown is now faced with the spectre of committing another Treaty breach of a magnitude no less than the Treaty breaches it claims to be settling. Relief requested 55. Accordingly, claimants request that the Tribunal recommend that the Crown hear claimants’ claims in hearings that meet the minima of natural justice, including an opportunity to be heard to adequately set forth their claims, including adequate preparation and presentation time, a neutral hearing officer, and a final report to the Crown on the merits and substance of their claims, in essence an inquiry pursuant to s.6 of the Treaty of Waitangi Act 1975.
Claimants also request that this application be set for judicial
conference, if necessary, to determine whether to grant a hearing and 14
if so, under what conditions. Dated this 28th day of September 2011 at Auckland.
Linda Thornton – Counsel
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