In March 2016 the Waitangi Tribunal released its report on claims concerning the proposed reforms to theTe Ture Whenua Māori Act 1993. This lengthy 361-page (pre-publication) report is entitled He Kura Whenua Ka Rokohanga.1 With the report’s release the Tribunal’s media statement summarises its findings as follows:
“The Tribunal found that the Crown would be in breach of Treaty principles if it did not ensure that there was properly-informed, broad-based support from Māori for the new Bill to proceed. ‘Māori landowners, and their whānau, hapū, and iwi, would be prejudiced if the 1993 Act were repealed ‘against their wishes, and without ensuring adequate and appropriate arrangements for all the matters governed by that Act’.
With regard to the provisions of the Bill, the Tribunal noted that Treaty principles do not require any one specific form of protection mechanism, so long as it is effective and has the properly informed, broad-based support of Māori. However, the Tribunal concluded that a number of the Bill’s provisions nullified or weakened the mechanisms intended to ensure the retention of Māori land. That was inconsistent with the Crown’s duty of active protection.
Other aspects of the Bill relating to succession and compulsory dispute resolution, the Tribunal found, were also inconsistent with Treaty principles.
The Tribunal recommended that the Crown avoid prejudice to Māori by engaging further nationally via hui and written submissions, after ensuring that Māori are properly informed by means of empirical research. The Tribunal also made a number of other general and specific recommendations to the Crown concerning both the review and reform process and the new Bill.”2
Our Summary Policy Assessment
We advise the report is comprised of five chapters. Panui provides a chapter analysis.
In our view the report, despite being ridiculously long, is generally well considered. There is a clear balance within many of its analytical discussions, and we note a conspiracy theory that the Crown is deliberately weakening Māori land-owners interests for its own gains is (rightly) rejected. (Meaning policy and process clumsiness are really the issues at hand.)
We consider that the Tribunal lets itself down slightly in four key respects, including lack of solutions, scope creep, and limited consideration in some areas. (Details are provided within Pānui).
We also note Minister Flavell’s commented that some of the Tribunal’s findings relate to earlier versions of the Bill, and proposals which are no longer on the agenda. This gap between the Tribunal’s findings and the currently proposed Bill provided the Minister with an opportunity to progress the reforms more readily (i.e. the argument that the Tribunal report was out of date before it was published). But that aside, a question for the Minister to consider is why it appears to have taken a Tribunal hearing to prompt such additional policy analysis and further revisions to the Bill from his officials? In our view this situation presents as creating policy and legislative settings off-the-cuff, and is high risk. Accordingly, although it is an easy out to end any report with the basic conclusion ‘more research required’ – in this case that presents as a very fair comment from the Tribunal.
1 Pre-publication means a final report, but still subject to publication formatting and grammatical checking, etc.
2 Note this is an extract from the media release (not the full release).