Manufacturing complexity

Te Kāhui Tika Tangata Human Rights Commission is intervening in Wairarapa Moana’s long-standing claims over historic land confiscation. 

The Commission believes whānau have had their right to seek justice thwarted by the Crown.

Here’s Dayle Takitimu in conversation with Connie Buchanan about why the Commission is getting involved.

 

The Human Rights Commission has had a watching brief on the Wairarapa Moana case for some time.

This particular case has become very complex. But we should bear in mind that it started off as a clear-cut series of wrongs, which ought to have been put right a long, long time ago. Instead, the breach of guarantees made by the Crown has been left to fester.

Metiria Turei lays out the history of those broken promises here.

In summary, in the 1880s, the Crown allowed Pākehā farmers to drain and acquire Wairarapa Moana ancestral lake lands, and then failed to supply whānau with promised reserves of 3,000 acres.

Eventually, some 20 years later, they offered Wairarapa whānau a block of land in compensation, known as the Pouākani block. But Pouākani was 400 kilometres away. And it was Raukawa ancestral land that had been wrongfully confiscated from whānau there. So the Crown was looking to fix one breach of rights with another breach of rights.

When Wairarapa Moana whānau were unable to access and develop that far-away land, the Crown allowed Mercury Energy to take it under the Public Works Act to build a dam. Wairarapa Moana want their title to this land resumed. But the Crown can’t do that without creating another injustice for the people they wrongfully took it from.

It leaves Wairarapa Moana in a difficult position. They’re trying to get the Crown to find a solution. They’ve been trying for a long, long time.

In 2022, Wairarapa whānau received a judgment from the Court of Appeal that their case for resumption of land could proceed to the Waitangi Tribunal. Resumption is one of the few circumstances where the Tribunal can make binding recommendations on the Crown. Within hours of the judgment, the government used its parliamentary power to pass the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Claims Settlement Act 2022.

The Act acknowledges the harm from the land confiscation and breach of promises but does not compensate for it. Rather, it extinguished the claims. The legislation stumped the ability of whānau to take their fight any further. The government used the Act to thwart whānau access to avenues for justice.

That’s deeply problematic from the Commission’s point of view. Access to justice is a human right, and human rights are not supposed to work like that. The very nature of human rights is that they’re inherent and not at the government’s discretion on a given day, nor subject to the politics of the day.

But the general situation is something that happens quite often in Treaty settlements: the Crown scoops up a whole lot of claims within a region and says those claims are now extinguished by virtue of the broader settlement agreement with an iwi. But in this case, the whānau said no, absolutely not, our claim can’t be settled that way.

They were in the middle of a long-standing process to seek justice. They were not satisfied with their claim being scooped up and extinguished just because there was proximity of geographic location.

It’s not as if they came in at the eleventh hour and, unknown to the Crown, tried to put forward a new case or a new claim. The Crown has known about their case for decades, and what’s more, has never denied the wrongs and breach of guarantees. But once the case headed off in a particular direction, toward the possibility of a decision that is binding on the Crown, it passed a law to cut off that option.

The big problem in this case is that, for quite some time, there’s been a government policy that you can’t look to correct or remedy one Treaty breach by creating another injustice. That’s the rationale for why private land is not accessible through the Treaty settlement process. It’s one of the modern-day settlement policies.

So the difficult question for the Crown is how to fix things now that they’ve made this blunder. Their answer is that you don’t fix it. You bury your head in the sand for 100-odd years and make things more and more complex through legal processes — and then scurry to pass legislation quickly to subvert what’s happening in court when things might not be going your way.

That’s simply not what our human rights protections and the New Zealand Bill of Rights Act are designed for.

So now the Wairarapa Moana whānau are seeking a remedy from the court to say they should still be allowed to carry the case through to its natural conclusion. One way of doing that is by seeking a declaration that the Crown’s legislation is inconsistent with the New Zealand Bill of Rights Act.

It would obviously send a strong signal if government action was found to be inconsistent with the Bill of Rights. There would be significant implications.

Things like the Bill of Rights are put in place in this country, and in many countries, to be a check and balance on executive power. And in international forums, New Zealand likes to herald the fact that we’re a progressive country for human rights, and progressive with rights protections in our democracy. One of the Human Rights Commission’s statutory mandates is to hold the New Zealand government to account for its human rights protections and recognitions.

That’s why the Commission has looked to intervene in this case. It’s part of our mandate to hold the government to the standards that already exist in law. Because it’s expected by the New Zealand public that what are said to be the protections for human rights, are, in fact, able to be actualized. Otherwise, they’re not human rights at all. They become completely discretionary.

So we’re intervening to assist the Court of Appeal with the human rights dimensions of the case. Our position is that the High Court does have jurisdiction to consider whether a declaration of inconsistency should be granted.

That’s what the latest hearing in this case is about.

More broadly, it represents a wave of complexity around trying to seek Treaty justice, which, over time, has become a process that is unilaterally controlled by the Crown.

If the wider New Zealand public understood some of the politicking and machinations of the government in the settlement process, it would be worrying to everybody. But there’s so much misunderstanding about settlements. New Zealand goes abroad to the United Nations and sings its own praises about how progressive the settlement process is. But that’s not really the case at all.

The Wairarapa Moana example exposes some of the Crown manoeuvring that goes on behind closed doors. It exposes some of the patent unfairness. I think New Zealanders should be worried about that. We should all be concerned when citizens have their access to justice thwarted.

Certainly, the law has been used as a weapon for a long time as part of the colonial method. That’s not purely historical — it continues to be that way. As many Māori will attest, and as we’ve seen in recent times, it is an ongoing process that the law is weaponised against Indigenous rights in this country.

This case is another example. And it’s also an example of a claimant group saying: We’ll still try to use the law as a shield, and we will still look to the courts for their jurisdiction over human rights to try to keep our case alive.

For me to say that we have a settlement process in this country that is controlled by the Crown, and then to say that the Crown acts in its own interests is, I think, beyond controversy at this point. We know that to be the case. But it’s important to also say that the option remains for the Crown to step up and be an honourable partner.

It has always been an option over 184 years of Treaty partnership for the government to have a direct discussion with Wairarapa Moana outside of the courts, outside of the Tribunal, and to actually fix the problem. They have the option to sit down, address the issue, and come to some mutually agreeable resolution. There are tikanga ways of doing that, as Metiria Turei explains in her article.

That option remains open because Treaty partnership, of course, can occur between partners face-to-face, by negotiation. But the Crown wants to settle historic grievances and make them go away, as opposed to really implementing the Treaty relationship in an honourable way.

We should have got to justice in this case a long time before whānau had to look to the court for a statement that the Crown’s behaviour is inconsistent with the Bill of Rights.

For the whānau involved, this has already been a long, long journey. And how long might it now take for them to seek a declaration about human rights from the court, to go through the Supreme Court and then be heard by the Waitangi Tribunal? Then, if there is a binding recommendation from the Waitangi Tribunal, the parties will still need to sit down and talk through what happens next. So, it seems inevitable that they need to sit down in partnership, regardless.

This is a series of injustices piled on top of each other. It should have been addressed years ago. I don’t even hesitate to say that the ensuing complexity has been manufactured every step of the way by those looking to elude responsibility for putting things right. That should be an outrage to all New Zealanders. People should have access to justice when wrongs occur, and justice should be done in a timely manner.

 

Dayle Takitimu (Te Whānau-ā-Apanui, Ngāti Porou) is the Human Rights Commission’s Rongamau Taketake, Indigenous Rights Governance Partner.

As told to Connie Buchanan and made possible by the Public Interest Journalism Fund.

© E-Tangata, 2024