THE WAITANGI TRIBUNAL
WAI No 1071
IN THE MATTER of the Treaty of Waitangi Act 1975
AND
IN THE MATTER of Foreshore and Seabed Claims

MEMORANDUM OF THE CROWN
5 November 2003

MAY IT PLEASE THE TRIBUNAL:
1. This Memorandum is filed in response to the Tribunal’s Directions of 28 October 2003.
2. The Crown’s response to the questions posed at paragraph 2 of the Tribunal’s Direction is as follows. The questions are dealt with in order other than the question posed at paragraph 2.6, which is best addressed first.
3. For ease of reference the Tribunal’s questions are set out in full.
“2.6 Crown Counsel submitted in a memorandum on 7 September 2003 (paras 11 and 12):
“The Crown considers a Tribunal hearing might provide a useful forum for further exploration, by Crown and claimants of the issues relevant to the Crown’s proposals.”
and
“Accordingly the Crown considers a hearing should be held as soon as possible to enable the Crown to be informed of the Tribunal’s views before the Crown proceeds to take any final decisions.”
Has the Crown’s position changed?
4. Response:
4.1 The Crown’s position has changed to this extent. Initial support for an urgent inquiry was based upon the then proposed policy and legislative timeline. This would have enabled a Tribunal inquiry into the Crown’s policy proposals as modified or developed following the public consultation process. During the consultation process, many Maori and other submitters, were critical of the speed with which the Government was moving to develop and implement policy following the Court of Appeal’s Ngati Apa decision. The Government remains committed to moving with reasonable expedition to clarify the law following the Court of Appeal decision in Ngati Apa. It is accepted, however, that more time is needed to consider the large volume of submissions received and to engage in further dialogue with Maori and other interested parties before finalising that part of the policy that is to be the subject of legislation in February or March 2004.
4.2 While this process is underway, the Crown would prefer not to be engaged in a simultaneous Tribunal inquiry on aspects of the policy or the process. This is primarily because an urgent inquiry running in conjunction with a period of further engagement inevitably diverts the resources and attention of both claimants and the Crown. The adversarial positioning of parties before the Tribunal can also undermine efforts to establish a constructive dialogue.
4.3 It is hoped that the contents of this Memorandum will assist both the Tribunal and claimants in the choices that need to be made between dialogue and/or litigation in the Tribunal, and the respective timeframes.
4.4 In the event that the Tribunal and claimants wish to proceed with an urgent hearing, the Crown will make best endeavours to assist. While the Crown remains of the view that the Tribunal may still provide expert advice on key issues, its immediate priority is to develop and finalise its policy through a process of further dialogue.
4.5 From the Crown’s point of view, there remains an imperative to move with reasonable expedition. The Crown is not prepared to bind its policy and proposed legislative timeline to the contingency of a Tribunal inquiry and report. Neither does it consider that it is under a duty to do so (refer para 7 Tribunal Directions). The processes of Parliament itself cannot be restricted or fettered. It is also relevant to note that the immediate issue concerns only whether there could or should be an urgent inquiry and report before a Bill is introduced. If the parties or the Tribunal conclude that such an inquiry is no longer required, or is not feasible at this stage, the Tribunal still retains jurisdiction to inquire into the claims once the Bill is passed.
5. Tribunal question:
“2.1 Do the four principles set out in the August document “remain in force” as stated by the Deputy Prime Minister in Parliament on 21 October 2003?”
6. Response:
6.1 The foundation of the Government’s policy remains that legislation is necessary to alter the jurisdiction of the Maori Land Court so that private titles cannot be issued over areas of foreshore and seabed. The four principles “remain in force” in the sense that they provide the framework within which the Government proposes to reconcile the various interests at issue. How the various principles are implemented and balanced against each other is a key issue for further discussion.
7. Tribunal question:
“2.2 On what matters does the Government now propose to engage in consultation? When and with whom will that consultation take place?”
8. Response:
8.1 The Crown is seeking further engagement and dialogue with Maori and other interested parties on its proposed policies. In terms of engagement with Maori, the Crown wishes to have further dialogue with a cross-section of groups from amongst:
8.1.1 Those who made submissions as part of the public consultation process;
8.1.2 Those who have pending applications before the Maori Land Court;
8.1.3 Iwi and hapu leaders, Maori organisations and commentators
8.1.4 Maori who have foreshore and seabed related claims currently before the Waitangi Tribunal.
9. There is obviously overlap to a large degree between these categories. The time within which this further engagement and dialogue can take place is approximately one month. The discussions will be between Maori representatives and senior officials, led by the Department of Prime Minister and Cabinet. Ministers will also be available for meetings with major claimant groups and organisations. These discussions have already commenced. The Government is endeavouring to arrange meetings with all the major iwi groups who are claimants in the Tribunal, and who also have applications before the Maori Land Court. In addition, the Government intends to have further discussions with local government and recreational interest groups.
10. The matters for discussion are the Government’s policy proposals, options for implementation (including the nature of proposed legislative amendments), the link between the foreshore and seabed policy and other related policy in the coastal marine area including oceans policy and marine reserves.
11. In particular, the Crown is seeking further discussion on key issues such as:
11.1 The way in which the law can best provide for the concept of the public domain;
11.2 The way in which statute law and/or administrative processes within central and local government can best provide for and protect customary interests going forward;
11.3 How best to ensure that any new systems put in place to provide for and protect customary interests are reconciled with existing legal rights and other relevant regulatory and administrative systems.
12. The Government also wishes to discuss how existing legislative regimes that affect Maori customary interests in the coastal marine area could be improved. This would be a longer term process and would address what further consequential legislative change may be desirable.
13. The Government does not propose to constitute a formal Crown/ Maori working group to consider that part of the policy that is to be implemented by the legislation proposed for February March 2004, as has been proposed by some claimants. The reason is primarily logistical and timing related.
14. Tribunal question:
“2.3 If legislation were to be introduced on 23 February 2003, by what date would Parliamentary Counsel be briefed as to the content of the legislation?”
15. Response:
15.1 It is expected that Parliamentary Counsel will be instructed around mid-December. Thereafter there is likely to be an ongoing process of refinement and review between PCO and Ministers right up to the point of introduction.
16. Tribunal question:
“2.4 If the Government’s policy is to be finalised before Christmas, what opportunity is there for the Tribunal’s views to influence the content of the policy and enacting legislation?”
17. Response:
17.1 On the current expected timelines, the Crown would be in a position to advise the Tribunal of its policy decisions around mid-December 2003. The Bill will be developed and refined during January and February for introduction not before late February, early March. There is opportunity to influence the content of the Bill right up to the point of introduction. The Crown would keep the Tribunal appraised of any changes to the expected date of introduction of the Bill. Subsequent to introduction there will also be an extensive Select Committee process at which time claimants may make their views known and draw to the attention of the Select Committee any relevant Tribunal findings and recommendations. On this basis, the Crown considers that there remains an opportunity for the Tribunal to inquire and report in the manner proposed at paragraph 10 of the Crown Memorandum dated 23 October 2003.
18. Tribunal question:
“2.5 What is the Crown’s position on the undertakings sought by claimants that are set out in paragraph 13 of Mr Castle’s memorandum dated 24 October 2003?”
19. Response:
The First Undertaking
19.1 The first undertaking (para 13.1 Mr Castle’s memorandum) sought was that “the Crown will not interfere with the foreshore and seabed during the period of the adjournment.”
19.2 It is not clear whether this undertaking is directed solely towards the foreshore policy proposals and their potential implementation, or whether it is also meant to catch the regulatory and administrative regimes already in place. Either way, the breadth of the undertaking appears to be based upon assumptions as to the legal effect of the Court of Appeal’s Ngati Apa decision which the Crown would question.
19.3 Many of the existing regulatory and administrative regimes are operated by local government. Short of legislative intervention, the Government has very limited power to direct or control local authorities. Similarly, local government have only limited discretion not to act. Neither the Crown or local government can fetter or abrogate their statutory responsibilities. Nevertheless, to the extent that it is able, the Crown is willing to consider any particular issue or activity in the coastal marine environment that are drawn to its attention by claimants, pending resolution of the foreshore and seabed policy.
19.4 Clearly the Crown cannot agree to “not interfere with the foreshore and seabed”. Governments must govern. They must do so within established constitutional principles and in accordance with the rule of law. The Treaty of Waitangi itself was founded upon the conferral of the right of governance upon the Crown pursuant to Article 1 in exchange for guarantees of protection of rangatiratanga in Article 2.
19.5 In its draft options for resolution of foreshore and seabed issues, (October 2003), Te Ope Mana a Tai state:
“The Court of Appeal in the Marlborough Sounds decision found that any rights held by the Crown, other than fee simple title, are subject to the rights held by iwi/hapu according to tikanga.”
19.6 They go on to say that the correct starting point for resolution of the issues;
“is for the onus to be on the Crown to show that any particular part of the coastal marine area is not held in accordance with tikanga, rather than for iwi/hapu to prove that it is.”
19.7 The Crown considers that these propositions, and the request that the Crown undertake not to interfere with the foreshore and seabed during the period of any adjournment overstate the effect of the Court of Appeal judgment. The basic problem, as the Crown sees it, is that there appears to be an assumption that Ngati Apa represents confirmation that tikanga is fully cognisable by New Zealand law in the coastal-marine zone, and that tikanga operates as the only valid set of rights and obligations in that zone. The Crown sees the situation as being more complex for the reasons that follow.
19.8 The decision in Ngati Apa answers a specific preliminary question of law about the jurisdiction of the Maori Land Court. The Court of Appeal found that the Maori Land Court has jurisdiction to make status orders relating to land in the foreshore and seabed. It did not make findings about the existence or non-existence of specific customary interests in particular parts of the coastal marine zone. Indeed, judges indicated they thought such claims may be difficult to maintain.
19.9 The Ngati Apa decision allows status orders to be made, declaring that land is held according to tikanga.
19.9.1 The onus is on the applicant to show that land is held according to tikanga.
19.9.2 The extent and nature of holding according to tikanga will be subject to inquiry as to the nature of tikanga, and possible regional, iwi, hapu and whanau variations of tikanga.
19.10 The decision in Ngati Apa does not remove or prevent regulatory regimes remaining in place and applying to land in the coastal marine zone. Even if a particular part of the coast was held according to tikanga, and particular customary interests or rights were identified as relating to that area, there is no automatic presumption that the tikanga rights and obligations “trump” the regulatory regime established by the Crown in Parliament. A series of difficult legal questions arise as to the relationship between tikanga, the Te Ture Whenua Maori Act regime and other law. These are issues under consideration and on which the Crown seeks further dialogue.
19.11 The questions of how best to protect customary interests in a way consistent with the Crown’s wider obligations to all New Zealanders, are not answered by reference to the specific legal question at issue in Ngati Apa. These are the issues on which the Crown now seeks further dialogue.
The Second Undertaking
19.12 The second undertaking sought (para 13.2 Mr Castle’s memorandum) was that the Crown immediately provide “engagement protocols”. Details of the process of further dialogue and engagement are set out elsewhere in this Memorandum. The Crown does not propose to establish a joint Crown/Maori working party at this stage.
The Third Undertaking
19.13 The third undertaking sought (para 13.3 Mr Castle’s memorandum) is that the Crown commit now to a date for releasing its confirmed policy proposals. The Crown expects to advise the claimants and the Waitangi Tribunal of its confirmed policy decisions around mid-December 2003. This will correspond with the point at which Government is in a position to issue initial instructions to PCO.
19.14 The status of the four principles is dealt with at para 6 above.
The Fourth Undertaking
19.15 The fourth undertaking sought (para 13.4 Mr Castle’s memorandum) was that the Crown immediately release all policy documents which underpin the development of its policy, including its proposed policy framework of August 2003. There is no change to the Crown’s position from that summarised at para 13.4 of Mr Castle’s memorandum.
The Fifth Undertaking
19.16 The fifth undertaking sought (para 13.5 Mr Castle’s memorandum) was that the Crown must not develop or progress any legislation or amendments to existing legislation that in any way interferes with customary rights and asserted rights to the foreshore within the period of the adjournment. For reasons outlined elsewhere in this Memorandum, the Crown is not prepared to put on hold, or bind, its legislative and policy development timeline to the contingency of an urgent Tribunal hearing. The Crown does intend to continue to develop its policy and considers that there are wider public policy imperatives that require it to do so with reasonable expedition. The Crown is conscious that it also has Treaty duties and obligations to Maori and that the customary interests at issue were affirmed by the Article 2 guarantees in the Treaty. However, it does not accept that the nature of these obligations are such that it must “freeze” its policy or legislative process in order to provide for an urgent Tribunal inquiry and report. While an important and relevant consideration, it cannot be determinative.
Options for Hearing Process
20. At paragraphs 5 and 6 of its Directions, the Tribunal set out possible options for a hearing process. The Crown would wish to consider the response of the Tribunal and the parties to the contents of this Memorandum before commenting further on possible options for a hearing process. At this stage, the Crown can confirm that it stands by the proposals put forward at paragraph 10 of its Memorandum of 23 October 2003. A hearing on these issues and/or those issues identified by the Tribunal as a possible “Stage I hearing” would seem feasible within the timeframes proposed.
21. The Crown’s view at this stage is that a hearing or inquiry on process would not represent the best use of limited resources and time.
22. The Crown indicated in its Memorandum of 23 October 2003 that it proposed to make application for an adjournment, initially in the Maori Appellate Court, in respect of proceedings referred back to that Court by the Court of Appeal. That still remains the Crown’s intention. The Crown, however, proposes to wait until the parties to the Ngati Apa proceedings have had the opportunity to consider the contents of this Memorandum and then discuss whether terms of a joint application to the Maori Appellate Court can be agreed. If terms cannot be agreed, the Crown will then reconsider its position. There is no “unspoken premise” or implied threat that if such adjournment is not obtained, the Crown would proceed with the earlier introduction of legislation as is suggested by counsel for Te Ope Mana a Tai. It is accepted that there is a defacto stay in operation while the Port Marlborough appeal to the Privy Council awaits hearing and determination. The Crown has committed not to introduce legislation before 23 February 2004. Whilst it does not anticipate any need to act before that time, it must reserve the right to do so in the event of unforeseen or unexpected circumstances. An adjournment in the Maori Appellate Court, and subsequently in respect of particular Maori land Court applications, is the Crown’s preferred method of securing a period of time within which foreshore policy and related legislation can be developed, considered in Select Committee, and passed without the risk that proceedings may continue or commence.

Dated at Wellington this 5th day of November 2003

_______________________________ Michael Doogan/Damen Ward Counsel for the Crown

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