He Whare Tikanga o Te Tairawhiti by 5d8rBO

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									Tangata Whenua Sovereign Council
Jason Koia
175 Tyndall Road
Gisborne
Phone 06 8686732
Mobile: 027 3388524
Email: koia@xtra.co.nz



      Waka Umanga – Feedback Hui, Tuesday 7 November 2006, Pirates Conference Centre15
                                   Anzac Ave, Gisborne.


                            ANALYSIS ON THE WAKA UMANGA REPORT


INTRODUCTION


      1. This paper serves to inform the Law Commission (NZ) that there are over 50 Ruawaipu Te
         Tiriti o Waitangi claims currently registered in the Treaty of Waitangi Tribunal East Coast
         Inquiry District that will have a direct interest or prejudice in relation to the Law
         Commissions proposal called the Waka Umanga Report.

      2. This paper has been prepared for the purpose of encouraging dialogue and should not be
         intended to be relied upon as a comprehensive statement of law and practice.

THE WAKA UMANGA REPORT


      3. The Waka Umanga Report (“the Report”) introduces a common sense approach for structural
         governance for Maori entities. The key proposal is based around Tribal groups to develop
         their own structures independently of the Treaty of Waitangi claims process before claims are
         presented to the Waitangi Tribunal or negotiated with government.

      4. However the Report is fundamentally flawed for the following reasons;

                   The Report has been implemented and drafted on the assumption that the Crown is
                    sovereign (under the English version of the Treaty of Waitangi, which is not the
                    prevailing document1).

                   All current treaty settlements and negotiations are null and void because they are
                    settled under the English version of the Treaty of Waitangi. The Report fails to
                    mention the ramifications.


1
    In 1845, Shirley F Wilmore London Legal Advisor viewed that the native interpretation of the Treaty of
Waitangi prevailed .Where there is ambiguity is shall between two texts it shall be the indigenous text to prevail
(Contra preferentum). Te Tiriti o Waitangi (the indigenous version) did not cede sovereignty. The English
version was not used or contracted on the East Coast (Te Tairawhiti).

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                   The Report fails to highlight issues involving tangata whenua rights under customary
                    law2 common law3, international law4 and municipal law5.

                   The Report does not address native title rights, or native title claims in the Waitangi
                    Tribunal and its constitutional consequences for government. For example the issue
                    of common law jurisdiction over customary law is ambiguous 6 whilst the prevailing
                    law in New Zealand (NZ Common law v customary) has not yet been determined.

                   The Reports proposed legislation may be used as an act to make reservations on the
                    draft Declaration on the Rights of Indigenous Peoples 1994, in particular Article 3
                    and 26. New Zealand government is currently prohibiting the full implementation of
                    the dDRIP.

                    The Report and its proposal may be intended to appease the UN regarding
                    indigenous rights as already attempted in 19867

                   The Report proposals have already been attempted in the past by government with no
                    success under statutes such as the 1920 Native Trustee Act, 1945 Maori Economic
                    and Social Advancement Act, 1962 Maori Community Development, and the 1991
                    Ministry of Maori Development Act, and Te Ture Whenua Act 1993. Legislature
                    intended on providing Maori governance and a resource framework by the Crown in

2
    Native title (Aboriginal doctrine) being full rights, powers and privileges prior the Treaty of Waitangi [Tamaki
v Baker 1901]

3
    [ section 37 Letters Patent, December 1840].
[ section 9 & 10, New Zealand Constitution Adoption Act 1846]
[ section 71, New Zealand Constitution Adoption Act 1852]


4
    1945 United Nations Charter Chapter XI
1948 UDHR Article 8, 17 & 20 [ratified by NZ],
1960 UN- General Assembly Resolution 1514 (XV)
1962 UN- General Assembly Resolution 1803 (XVII)
1966 ICCPR Article 1(1) & 2(3). [ratified by NZ]


5
    1962 Maori Community Development Act section 18(1)(c)(iv),
1990 Bill of Rights Act section 28,
1991 Resource Management Act sections 6(e), 7(a), 8, 33,
1993 Te Ture Whenua Act section 2, 145, 218, 338(1) (b),
2001 Human Rights Amendment Act section 73.
2002 Local Government Act sections 4, 81(1)(b).
6
 For example in written submissions to the Waitangi tribunal, Dr PG McHugh argued that common law could
not recognize an exclusive title over the foreshore and seabed. [page 12, NZ Law Society Seminar, April 2005].

7
    New Zealand Statement Working Group on Indigenous Populations – Seventh Session, Geneva, August 1989.
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                    the past has been overridden by the Crown with conflicting legislation such as the
                    Petroleum’s & Oil Act 1937, Land Transfers Act 1952, Wildlife Act 1953, Local
                    Government Act 1974, Crown Minerals Act 1991, Treaty of Waitangi (Fisheries
                    Claims) Settlement Act 1992, and Foreshore and Seabed Act 2004 8.

                   The proposed legislation as recommended in the Report is still subject to overriding
                    legislation of Parliament/Crown and offers no security of Treaty rights.

                   The Report does not address Treaty rights, but rather assimilates Maori into a
                    constitutional process under municipal law.

                   The Waka Umanga Report fails to meet the recommendations of the UN9.



COMMON LAW RIGHTS

       5. Cooke P viewed that the extinguishment of an aboriginal title by less than fair conduct or on
          less than fair terms would likely be a breach of a fiduciary duty of the Crown10.


                   “Nor is this all. They [[native-aboriginals of New Zealand]]must not be permitted to
                    enter into any contracts in which they might be the ignorant and unintentional authors
                    of injuries to themselves”. [Instructions Lord Normanby to Consul Hobson 14
                    August 1839].

                   “That nothing in the said charter contained shall affect or be construed to affect the
                    rights of any aboriginal natives of the said colony to the actual - occupation or
                    enjoyment in their own persons, or in the persons of their descendants, of any lands
                    in the said colony then actually occupied or enjoyed by such natives” – [Queens
                    Instructions s37, December 1840]


                   “Native customary rights continue unless and until they are extinguished explicitly by
                    statute and the natives freely consent to such extinguishment” [The Queen v
                    Symonds 1847]


       6. The Law Commission as an independent statutory body of the Crown has a fiduciary duty “to
          undertake the systematic review, reform and development of the law of New Zealand. Its
          purpose is to help achieve law that is just, principled and accessible, and that reflects the
          heritage and aspirations of the peoples of New Zealand”.


8
 The Runanga Act 1990 which was an attempt to provide a common legal structure Maori rejected it on the
grounds that it was an attempt to place tikanga under Pakeha legalism.
9
    (draft) Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Rodolfo Stravenhagen. – Addendum MISSION TO NEW ZEALAND, 10 March 2006.
Refer to recommendations (1) the Treaty of Waitangi can no longer be ignored (2) the NZ government is
breaching international law and (3) Tangata whenua have rights to their own system and law.
10
     Te Runananganui o te Ika Whenua Inc Society v Attorney general [1994]
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7. The Report fails to provide advice on just, principled, accessible law that reflects the heritage
   [customary right] of tangata whenua. Instead the Report diverts from significant issues of law
   and Treaty rights.

8. Tangata whenua must be correctly informed. This is a fiduciary duty of the Crown and its
   Agents.


THE OTS

9. Apart from disenfranchising hapu and treaty rights, the intent of the Office of Treaty
   Settlements (“OTS”) is to extinguish Treaty rights and native title rights by unfair conduct
   (illegal and illegitimate means). OTS grievances are currently before the Waitangi Tribunal.


           “[the Crown] disregarded Maori law and authority. Contrary to Maori law, and in
            disregard for Maori authority, [the Crown] presumed to buy from one group, though
            to do so would effect all and when, by their own collective process, not all affected
            had agreed. The tribunal found the Crowns actions in not dealing with all the affected
            groups were contrary to the treaty. The tribunal further found that the Crown was
            obliged to negotiate for Maori land on the basis of the incidents ordinarily accruing to
            native title”. [Re Wai 143 the Taranaki Report at page 78],

10. Ruawaipu is a traditional Treaty tribe-hapu as a matter of factual existence. Section (9) (b) of
    the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 extinguishes Ruawaipu treaty
    fishing rights without consultation or consent, and prohibits any person from challenging the
    validity of the Act before any NZ court or tribunal. The Allocation of the settlement (under
    the Maori Fisheries Act 2004) goes to a statutory body of the Crown known as Te Runanga o
    Ngati Porou. Te Runanga o Ngati Porou is incorporated under the Maori Trusts Board Act
    1955. Section 35 of the Trusts Board Act extinguishes all beneficiary interests whether
    vested, legal or contingent or equitable to any assets of the Board. The fisheries settlement
    assets belong to the Runanga Board. To make matters worse, the Royal Assent was
    illegitimately given on the grounds that the Governor Generals powers were repealed under
    section 3 of the Imperial Laws Application Act 1988.The fundamental legal flaw of the 1992
    settlement is that probative clauses cannot extinguish Treaty rights, as a matter of fact the
    native title is inextinguishable as the Crown has not purchased one inch of soil under its legal
    pre-emptive right, furthermore, the settlement was promulgated under the English Treaty of
    Waitangi which is not the prevailing Treaty.

11. The Report also fails to resolve the OTS process of Treaty breaches. By not identifying the
    prejudices the structures and legislative frameworks for tangata whenua is a concern. For
    example Treaty claims under Te Tiriti o Waitangi must secure residual royalty, territorial
    authority, levy collecting and supreme jurisdiction over legislation. The Report does not
    mention this formula, nor has the Law Commission proposed to implement Treaty of
    Waitangi legislation that secures just, principled, accessible law that reflects the heritage
    [customary right] of tangata whenua. For example Treaty legislation that has binding powers.




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CONCLUSION


  12. The Report is based on the assumption of Crown sovereignty under the English Treaty of
      Waitangi. The English treaty is not the prevailing treaty. Te Tiriti o Waitangi did not cede
      sovereignty.

  13. The proposal has been attempted by the Crown continually through out its legislative history
      and has been overridden by Crown legislation and treaty breaches.

  14. Advising tangata whenua to pre-empt the Treaty claims process without actually identifying
      key issues in the treaty claims process first and foremost will cause unnecessary delay and
      injury to tangata whenua

  15. Tangata whenua are not ready to development and implement frameworks in the collective
      management of their Treaty rights because their treaty rights are yet to be determined and
      redressed.

  16. The Report does not address treaty legislation development.

  17. Tangata whenua have legal rights to their own laws and systems.

  18. The Waka Umanga policy or legislation may be subject to a claim in the Waitangi Tribunal.

  19. Customary law prevails over common law. (English law can only be exercised on English
      soil).

  20. The Crown UK & NZ cannot be expected to honor Te Tiriti and are commercially liable.



RECOMMENDATIONS

  1. Article II of Te Tiriti o Waitangi must be the foundation

  2. A report under 5(2) of the Treaty of Waitangi Act 1975 must be used as a guiding
     foundation

  3. The 1994 Draft declaration on the Rights of Indigenous Peoples sets the framework policy.

  4. A Treaty policy and process must be overriding and independent of domestic legislation

  5. An impartial or international body should be established with full binding powers to hear and
     determine jurisdictional and Treaty issues between tangata whenua and the Crown (UK).

  6. Tangata whenua should bypass domestic legislation and seek formal declarations under
     international law, if prohibited by the Crown (NZ).

  7. Tangata whenua legislation needs to be implemented without prejudice.




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