Predictably, the tribunal “found” that “the procedural and resourcing arrangements supporting the Marine and Coastal Area (Takutai Moana) Act 2011 breached the Treaty and prejudicially affected Maori”.
Why “predictably”? The tribunal almost without exception recommends in favour of claimants and has done so for decades.
Evidence? Over the past few months, the tribunal has recommended against the government regarding treaty principles, Maori wards, the Orangi Tamariki Section 7AA, Maori homelessness, and so on.
How does it do this? Basically, by making up new rules as it goes along.
Why is it able to do this? The tribunal appears to invoke the widest possible interpretation of the third sentence of the Preamble to the Treaty of Waitangi Act 1975, which says:
The Act created two new property rights only available to Maori groups who could prove continuous uninterrupted use all the way back to 1840.
As the claims deadline loomed, a rush of 600 claims were lodged for the entire coastal area which extends from the high water mark on the beach out 22km from the shore.
But wait, it got worse.
When competing tribes claimed areas in the Bay of Plenty, a High Court Justice named Churchman over-ruled the “continuous use back to 1840” test as specified by Parliament in 2011.
As you know, in our constitution al arrangements, Parliament is the boss and courts are subject to Parliament.
Enter the National-ACT-NZ First coalition government which re-affirms the primacy of the 1840 test as specified in legislation.
So how does the tribunal wriggle its way around this?
Tribunal conjured up an elaborate argument to recommend that the Crown’s regime was inconsistent with Treaty obligations because it failed to:
The report goes on to say that the discussion in the six-page Chapter 3 lays the foundation for the 42-page chapter 5, which creates a range of procedural arrangements and non-financial resources that would make the Crown “treaty compliant”.
And the 41-page chapter 6 creates a whole lot of funding requirements that would render to Crown compliant.
The argument is simple. The Crown hasn’t met requirements that didn’t exist before the tribunal conjured them up therefore the Crown has breached the treaty principles.
To be clear, the tribunal does not rule on an issue – it makes a non-binding recommendation which the Crown may accept or reject.
In this case, the government will ignore the tribunal and while so doing a cluster of breathless “government being mean to Maori” news items will dominate the airwaves for a while.
In short, the tribunal is currently functioning as a group of government-funded activists pushing a narrative.
This peculiar arrangement was created by a government nearly 50 years ago to get Maori protest off the street.
Despite such a forum, plus more than $4-billion paid in compensation just for land grievances, we still have Maori protest on the street – as well as protest from this government-funded appeasement agency.
I’m with the 61 percent of us supporting ACT’s David Seymour in thinking that the Waitangi Tribunal has got it wrong for decades and now is the time for the people of New Zealand to help get it right.
See Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report at https://www.waitangitribunal.govt.nz/news/tribunal-releases-report-on-2/
Mike Butler wrote The Treaty: Basic Facts which is available at https://trosspublishing.com/product/the-treaty-basic-facts/
How does it do this? Basically, by making up new rules as it goes along.
Why is it able to do this? The tribunal appears to invoke the widest possible interpretation of the third sentence of the Preamble to the Treaty of Waitangi Act 1975, which says:
And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.Despite warnings, the Marine and Coastal Area (Takutai Moana) Act was introduced in 2011 by the Key National government at the behest of the Maori Party to replace the Foreshore and Seabed Act 2004.
The Act created two new property rights only available to Maori groups who could prove continuous uninterrupted use all the way back to 1840.
As the claims deadline loomed, a rush of 600 claims were lodged for the entire coastal area which extends from the high water mark on the beach out 22km from the shore.
But wait, it got worse.
When competing tribes claimed areas in the Bay of Plenty, a High Court Justice named Churchman over-ruled the “continuous use back to 1840” test as specified by Parliament in 2011.
As you know, in our constitution al arrangements, Parliament is the boss and courts are subject to Parliament.
Enter the National-ACT-NZ First coalition government which re-affirms the primacy of the 1840 test as specified in legislation.
So how does the tribunal wriggle its way around this?
Tribunal conjured up an elaborate argument to recommend that the Crown’s regime was inconsistent with Treaty obligations because it failed to:
• provide adequate and timely information about the Crown engagement pathway for applicants to seek recognition of their customary rights in the marine and coastal area;The two treaty principles the tribunal identifies as “most relevant” to their inquiry are: “partnership (particularly the duty of good faith it gives rise to) and active protection”.
• put in place adequate policies to ensure that the High Court pathway and the Crown engagement pathway operated cohesively;
• actively and practically support efforts to resolve overlapping interests in the marine and coastal area;
• cover 100 per cent of all reasonable costs that the claimants incurred in pursuing applications under the Act;
• manage real or perceived conflicts of interest in the administration of funding; • provide sufficiently independent, accessible, and transparent mechanisms for the internal review of funding decisions;
• enable timely access to funding for applicants in the Crown engagement pathway; and
• fund judicial review for Crown engagement applicants and Maori third parties.
The report goes on to say that the discussion in the six-page Chapter 3 lays the foundation for the 42-page chapter 5, which creates a range of procedural arrangements and non-financial resources that would make the Crown “treaty compliant”.
And the 41-page chapter 6 creates a whole lot of funding requirements that would render to Crown compliant.
The argument is simple. The Crown hasn’t met requirements that didn’t exist before the tribunal conjured them up therefore the Crown has breached the treaty principles.
To be clear, the tribunal does not rule on an issue – it makes a non-binding recommendation which the Crown may accept or reject.
In this case, the government will ignore the tribunal and while so doing a cluster of breathless “government being mean to Maori” news items will dominate the airwaves for a while.
In short, the tribunal is currently functioning as a group of government-funded activists pushing a narrative.
This peculiar arrangement was created by a government nearly 50 years ago to get Maori protest off the street.
Despite such a forum, plus more than $4-billion paid in compensation just for land grievances, we still have Maori protest on the street – as well as protest from this government-funded appeasement agency.
I’m with the 61 percent of us supporting ACT’s David Seymour in thinking that the Waitangi Tribunal has got it wrong for decades and now is the time for the people of New Zealand to help get it right.
See Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report at https://www.waitangitribunal.govt.nz/news/tribunal-releases-report-on-2/
Mike Butler wrote The Treaty: Basic Facts which is available at https://trosspublishing.com/product/the-treaty-basic-facts/
7 comments:
I recall back in the early 1980's, as I was working for the Health Department, we were told that the Tribunal was set up to deal with complex land claims. to take pressure off the courts, because the claims were very time-consuming.
Since then, of course, the tribunal has gotten very busy in re-writing the Treaty of Waitangi to create this racist fiction they call "Tiriti".
If two tribes are claiming the same piece of forshore on the basis of continuous use since 1840 someone must be falsly claiming, probably both.
As David Round pointed out, it was the very wise Kipling who said: "Once you start paying the Danegeld, you never get rid of the Dane". It is high time that Government had the guts to say "NO!!".
Absolutely Right, Bruce !!
Pharmac have even gone one further, by creating a fourth "Treaty" article.
Here it is - from their website :-
"Article Four: Wairuatanga
Spiritual practices and wellbeing. A defining characteristic and determinant of good health."
How long before the WT adds it to their work of fiction called "Tiriti" ?
That Round fella is a very clever man. Those wanting to learn something of the Treaty would do well to watch his 1law4all four part mini series on youtube starting here: https://www.youtube.com/watch?v=SsR1xNHd9qY
Seconded!
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