LawNews - Issue 36 by The Law Association

NEWS Oct 13, 2023 Issue 36

Inside ■ EMPLOYMENT

Lukewarm response to restraint of trade bill P05

■ TE TIRITI

Do the principles actually exist? P06-10

Employment Court grapples with plaintiff name

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SUPPRESSION

Contents 03-04 BLACKLISTS LITIGATION CONFIDENTIALITY

Why the Employment Court is hearing a test case on name suppression

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A National government would scrap Helen White’s restraint of trade bill

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06-10 DEMOCRACY CONSENSUS GUIDELINES

Do the principles of the treaty exist or are they an invention? Part 2 of a three-part series

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Oct 13, 2023 Issue 36

EMPLOYMENT LAW

Employment Court hears claims of employee blacklists in test case on name suppression Chief among the issues is whether the Employment Court must follow a test set down by the Supreme Court in Erceg v Erceg

happening from a small thing. It seems like it’s neverending, even today that I’m here talking. It’s very frustrating.”

Smorgasboard of views Reweti Kohere Asked what impact the publication of his name would have on him, the plaintiff known only as ‘MW’ told the court it would destroy him. “Just the fact you had a dispute, there’s nothing good about that. I work in the same business, I’ve been living here for eight years. A lot of people know me. It could destroy my reputation,” he said. MW could not have been clearer when he appeared on Monday before of a full bench of the Employment Court, which was hearing his application for permanent name suppression in what is regarded as a test case for non-publication orders in the specialist employment jurisdiction. MW wouldn’t have been in court at all, had his former employer respected the confidentiality of their mediated settlement agreement, put together after an employment dispute between MW and the suburban Auckland restaurant where he was employed. The parties had agreed to keep the terms of their settlement confidential and not disparage one another. Yet afterwards, other people came to know about the dispute and the settlement: one person contacted MW to say he’d been warned about the restaurant worker during a conversation with a third party about “money and employment”. MW said he hadn’t told anyone about the terms of the settlement, claiming the restaurant breached both the confidentiality and non-disparagement clauses. He took his matter to the Employment Relations Authority for compliance and nonpublication orders, penalties for the alleged breaches and costs. The authority agreed with MW: the director who signed the settlement agreement on behalf of the restaurant was liable for the breach. However, while

the restaurant was ordered to pay a penalty, it was not ordered to comply with the settlement as the “discrete event” of the breach had passed. Moreover, the authority declined to keep MW’s name secret, saying a permanent non-publication order was unlikely to cure the fact that the “horse has bolted” and people in his industry already knew about his dispute.

‘It’s never-ending’ Before the Employment Court, MW is arguing that the authority was wrong to refuse him permanent name suppression and that the protection he’s afforded by the confidentiality clause in the settlement will be toothless if his name is made public. In the meantime, the court has continued an interim non-publication order it put in place when MW indicated he intended to appeal that part of the authority’s determination. MW’s reputation and financial concerns reflect a broader access-to-justice issue the court is aware of: the informal practice of “blacklisting” employees. The court heard that workers are told at mediation to settle there and then rather than take meritorious claims to the authority as their names would most likely be published in determinations, which employers can later search online when screening job applications. The court was also told that employers have a legitimate interest in knowing whether prospective employees have been involved in employment-related litigation, for few reasonable employers would want to take them on. The confidential nature of mediation was absolutely vital to him, MW told the court, as was the non-disparagement clause. “We had a settlement but to this day, I have never spoken to anybody about what happened,” he said, not even telling his friends or family. “It’s been two years right now since that started

Very few applicants get to keep their name secret as the threshold for non-publication orders is high. Even rarer are the instances where employees ask the court for name suppression, although the Employment Relations Act 2000 confers on the authority and the court the express power to make non-publication orders. The significance of MW’s case was evident by the presence of 11 intervening parties, the consideration of what role tikanga Māori might play in helping the Employment Court approach non-publication orders, and the appointment of Rodney Harrison KC as counsel assisting Chief Judge Christina Inglis and Judges Bruce Corkill, Joanna Holden and Merepaia King. “This case is about name suppression, of employees in particular,” said Harrison, whose primary role was in trying to distill the “virtutal smorgasboard of differing, indeed competing, perspectives” presented by the interveners. Chief among the issues is whether the Employment Court must follow a test set down by the Supreme Court in Erceg v Erceg: a name suppression applicant must show specific adverse consequences that are sufficient to justify departing from the fundamental and constitutionally important principle of open justice.

To follow or depart? Those against change included the New Zealand Law Society and the New Zealand Bar Association, the Employers and Manufacturers Association (EMA), Business New Zealand, Human Resources Institute of New Zealand, Employment Law Institute of New Zealand, and news media outlets Stuff, NZME and

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Continued from page 03

Radio New Zealand. Those favouring change included the plaintiff, New Zealand Council of Trade Unions, The Law Association (previously the Auckland District Law Society), the Privacy Commissioner and Te Hunga Rōia Māori o Aotearoa. If the court concludes it’s not bound by Erceg and instead will formulate a new guideline approach which better reflects the object of the Act to build “productive employment relationships through the promotion of good faith”, several more issues will arise, Harrison said. Will the new approach apply across the board or only to employees? Will the new test apply in both the Employment Court and the Employment Relations Authority, which has a “special and arguably discrete” position? Should interim suppression applications be treated differently to applications for permanent non-publication? More broadly, are there some kinds of cases, such as sexual harassment or breaches of mediated, confidential settlement agreements, where nonpublication orders should be the default position? Does open justice remain the starting point or must it be considered on a par with privacy concerns, tikanga Māori, freedom of expression and other equally important factors? How might tikanga Māori and tikanga values shape the court’s new guideline test? And what weight must the court give to the fact that personal information, published online, exists forever?

applicants for employment, search a prospective employee’s name to see if they have been involved in litigation. The court is conscious of the ramifications. In a non-publication order judgment in The Chief of New Zealand Defence Force v Darnley, Chief Judge Inglis noted “the spectre of publication” was increasingly putting many employees off pursuing their claims, which in turn was raising crucial access-to-justice issues. An employee’s ability to pursue legal entitlements under the Act, “without the fear that doing so may damage future employment prospects”, was a relevant factor in balancing open justice with other interests. Many of the interveners addressed how the “screening issue” was having a chilling effect on access to justice. The court heard that 70% of the nearly 300 members that responded to an EMA survey considered it either highly relevant or essential for employers to know that prospective employees had been involved in employment proceedings, regardless of the outcome. Of the nearly 300 respondents, 70% “sometimes” used online database name-search results to identify those with previous involvement in litigation, while 30% used them “often” or “always”. Harrison noted the frequency question, as it was written, left open the possibility that third party recruiters were also screening applicants on an employer’s behalf. While he wasn’t criticising employers who wanted to know this information, “the practices appear to be widespread and likely to continue so that if there is a concern, it’s a concern based on reality”.

Screening issue Decisions of the authority and the court are published online and are freely available to the public in searchable databases. One consequence of this is that employers and recruiters may, in screening

Evidential basis Asked by Judge Holden how the court should view this evidence, EMA general counsel Paul O’Neil said while the results showed “some interest” among the

organisation’s employer members, almost 70% were failing to follow through in either never or sometimes checking online sources. There was no way of telling whether searching online databases was determinative of hiring decisions, O’Neil said, and urged the court to be wary of simply assuming a chilling effect existed because of the large amounts of information available online. Representing the media outlets, Lee Salmon Long’s Daniel Nilsson understood the chief judge’s concerns in Darnley in two ways: a concern about the impact that screening might have on employees’ future job prospects and the related concern about the chilling effect it might have on people accessing the authority. While both concerns were valid, “we need an evidential foundation for it before we start using it as a reason to interfere with fundamental rights. That’s not to say we shouldn’t find out, but it’s to say I don’t believe we have that evidence now”, Nilsson said. “And if it exists, it’s not before this court right now. Kathryn Dalziel, representing the Privacy Commissioner, said both concerns were the reason everyone was in court. “The relevant features of the Employment Relations Act – power imbalance, good faith, productive employment obligations, equity and good conscience – all work together to assist this court with the importance of balancing out the interests, otherwise harm can be done.” At the end of the hearing, Chief Judge Inglis paid tribute to Judge Corkill as MW’s case, over which he had presided, was most likely his last substantive hearing before retiring in February 2024. “He has been a wonderful judge, has made a fabulous contribution to the court and to employment law. So Judge Corkill, thank you so much,” the chief judge said. The court applauded Judge Corkill, and reserved its decision. ■

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Oct 13, 2023 Issue 36

EMPLOYMENT LAW

Scant protection for business in private member’s restraint of trade bill There needs to be a clear connection between restraint of trade clauses and the protection of legitimate business proprietary interests Jenni McManus Labour MP Helen White’s long-awaited restraint of trade bill has drawn a lukewarm response from employment lawyers, with The Law Association’s Employment Law committee saying it could not support the draft legislation in its current form as restraints of trade were justified and necessary in a number of circumstances to reasonably protect an employer’s interest. The Employment Relations (Restraint of Trade) Amendment Bill has had its first reading in the House and will now be considered by the Education and Workforce select committee. But if tomorrow’s election throws up a change of government, the bill will almost certainly be dead in the water. Both National and Act oppose White’s bill, largely because it does not consider the interests of small businesses, start-ups and other employers with trade secrets and other proprietary information that need the protection of the law. White’s bill would ban the inclusion of restraints of trade in employment agreements for all employees earning less than three times the minimum wage, meaning that on today’s numbers the threshold would be an annual salary of $141,648. For those earning above this level, restraints of trade could be negotiated but only for a maximum of six months and the employer would be required to pay the affected employee half his or her salary every week for as long as the restraint continued. At present, restraints of trade can be enforced only if a court determines they are reasonable. Introducing the bill, White said it was one of the reasons she had come to Parliament. In her view, there was a growing tendency among employers to include restraints of trade in employment agreements, often with little thought about whether they were reasonable in the circumstance or what the consequences might be for employees, their families or competition generally.

Rather than applying a salary threshold, the bill should focus on ensuring restraints of trade genuinely protect proprietary interests

In her 25-plus years in employment law, White said she had seen a “parade of low-income workers” who were subject to restraints of trade and could not change jobs because they could not afford to challenge their employer in court, even though the restraint might not be enforceable. For this reason, restraints acted as a suppressant on wages. White said she was talking about people like kindergarten teachers, baristas and seamstresses. “Those are not the kinds of people that most people in this country think would be restrained from going to another company in competition with the one they’re working for…. This means many employees on modest incomes choose to stay in lower-paid work or abide by the restraint.” The bill also meant employers of higher-income employees would need to carefully consider whether a restraint of trade was appropriate for those employees and, if they insisted on a restraint, employers would have to compensate their employees for the restriction. National’s justice spokesman Paul Goldsmith said there was a “kernel” of an issue around excessive restraints of trade for modestly-paid workers but the income threshold in White’s bill meant restraints would be banned for 95% of workers. Restraints of trade existed for a reason, he said. They were not unreasonable for a business which had developed its own secrets, skills and connections. Further, White’s bill

had been introduced at a time when businesses were struggling with cost-of-living pressures, labour market shortages, and “a barrage of thefts and ram raids”. Act’s Chris Baillie said the bill didn’t address scenarios where lower-paid employees had access to confidential information and an employer could not protect its interests. The Law Association’s Employment Law committee made formal submissions on the bill. Opinion among its members was mixed. Some recognise the bill’s potential benefits for lower-income workers while others expressed concern about its restrictive nature and the potential for unintended consequences if it came into force in its current iteration. The committee said there needed to be a clear connection between restraint of trade clauses and the protection of legitimate business proprietary interests. The competing interests of employees, businesses and the public interest should be carefully considered. The committee also said the salary threshold was arbitrary, too high and did not sufficiently take into account the detrimental effect of the bill on small businesses and emerging start-ups. It would catch middle and senior managers in business development positions who had significant business relationships and could pose a risk to the business if they left. “Rather than applying a salary threshold, the bill should focus on ensuring restraints of trade genuinely protect proprietary interests,” the committee said. It also noted that because no specific consideration needed to be paid to an employee for a restraint, employers would often include them as a standard clause in employment agreements, rather than considering whether they were genuinely needed for a particular role. And even if a court were to view a restraint as unreasonable, there was little to prevent an employer from using the threat of litigation to prevent employees from moving to another job within the same industry, or to deter competitors from recruiting their staff. ■ 05

Do the principles of te Tiriti o Waitangi exist? Or are they an invention? If there had been greater respect for the property rights of tangata whenua, many of which are not fully understood, then this country would be a much different – and I would say happier – country

Until New Zealanders are given the final say, the principles will remain empty words, devoid of the democratic authority claimed for them

Reweti Kohere & Rod Vaughan “Contestation is the treaty’s only consistent companion,” writes Justice Sir Joe Williams (Ngati Pūkenga, Waitaha and Tapuika), in a foreword to Ned Fletcher’s book The English Text of the Treaty of Waitangi. As a site of political, cultural, legal and historical controversy since its signing in 1840, the treaty is constantly debated “because it matters so much to so many”. And how true are his words. In the eyes of some to whom LawNews has spoken, the lack of any definitive list of principles of the treaty means they simply must not exist. Their “invention” lacks democratic authority and has racially divided the country and the government is breaching the treaty in conferring “special” rights and privileges on Māori. In the eyes of others, however, the principles must drive the Crown “to do more, do better” for Māori. They must evolve – sometimes subtly – to meet newer challenges, and respecting the property rights of tangata whenua is crucial to better race relations. In the second of our three-part series, LawNews has asked

In part two of a three-part series on the principles of the Treaty of Waitangi and whether New Zealanders will ever reach consensus on what they might be, LawNews speaks to stakeholders with a wide variety of views.

a wide range of people how the principles might play out in everyday life and whether they remain relevant to 21st-century Aotearoa New Zealand.

‘I’ve lived it’ For those of us who live in the real world, says former AttorneyGeneral Chris Finlayson KC, certain fundamental principles have not been honoured. “If there had been greater respect for the property rights of tangata whenua, many of which are not

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TREATY OF WAITANGI

Oct 13, 2023

Continued from page 06 fully understood, then this country would be a much different – and I would say happier – country.” As National’s most recent Treaty Negotiations Minister for nine years from 2008, Finlayson saw the principles up close across nearly 60 settlements – an unprecedented achievement. He’s seen where things have gone wrong and where his approach to the principles might have made a difference. “I’m a practical sort of sod...so I address it in that way rather than in ethereal concepts,” he says, and as with any good legal practitioner, an example is given: Parliament’s effort to protect the Ka Mate haka for Ngāti Toa. The Haka Ka Mate Attribution Act 2014, which gives effect to provisions in the deed of settlement between the iwi and the Crown, recognises: ■ Ngāti Toa rangatira Te Rauparaha as the composer of the famous haka; ■ the haka is a taonga of the iwi; and ■ the iwi has a right of attribution to the haka: Ngāti Toa must be identified if the haka is used for commercial gain. The iwi can enforce the right, but only through seeking declaratory relief. While the haka is the “intellectual creation” of Te Rauparaha, its composition drew upon matauranga Māori, the iwi says in a statement scheduled to the Act. “In Māori thinking, such a composition does not ‘belong’ to the composer per se, but instead is a taonga of the iwi to which the composer affiliates. It is they who give life and form to the words…As long as [the taonga] continues to exist, Ngāti Toa Rangatira obligations will continue.” Some people would dispute property rights as a principle, Finlayson says, to which he responds: “I’ve lived it, and I would say it’s an extremely important principle. I would say that’s the one that’s been breached the most.”

‘Do more, do better’ The purpose of the principles is to guide the Crown’s conduct in its dealings with Māori, says Aroha Harris (Te Rarawa and Ngāpuhi), an Associate Professor of History at Auckland University and former Waitangi Tribunal member. Kāwanatanga, or the Crown’s right to govern, must be balanced with rangatiratanga, or what existed in 1840, to the extent that tangata whenua want to retain it, Harris says of the principles, which also include cooperation (or partnership), redress, active protection and equity. Take the “multi-layered” principle of equity, for example. The World Health Organisation defines it as “the absence of avoidable or remediable differences among groups of people”. Not only are differences in health status unfair and unjust, but they are the result of differential access to the resources necessary for people to lead healthy lives, she says.

Compared with non-Māori, tangata whenua have what has been described as “the most pervasive and long-standing health inequities”: lower life expectancy; higher death rates at nearly all ages; an unequal health status across almost all chronic and infectious diseases, plus injuries, including suicide; poorer overall health outcomes and less of an inclination to access services. When seen against article three of te Tiriti, which confirms Māori have all the rights and privileges of British subjects, equity is the guarantee through which Māori and all other citizens of New Zealand are assured equitable treatment from the Crown, the Waitangi Tribunal says in its Hauora WAI 2575 report. Equity also means the Crown, in order to actively pursue equitable outcomes for Māori, must provide health services that Māori need. These services must not only treat patients equitably but be equitably accessible and funded, the tribunal says. Equitable services, access and outcomes, as Harris describes it. Put another way, everybody might be able to go to school in Aotearoa New Zealand, given there are 2,500 of them nationwide. But simply providing a school doesn’t guarantee tamariki the outcome of a good-quality education. Nor does the existence of a school guarantee that tamariki can access it every day. “It’s really [about] driving the Crown to do more, do better, think about every element and not just the fact that you’re providing the service,” Harris says.

Abandoning equality Barrister Gary Judd KC says Parliament was wrong to introduce the phrase “the principles of the treaty” into the legislative lexicon. But given the impossibility of removing them, they must be defined in plain English, “by reference to the actual meaning of the treaty”. Judd, a member of the Act Party, disagrees with the view that the principles should be the bedrock of the country’s constitutional system. While the treaty’s actual meaning is important, “the rule of law is the bedrock of New Zealand’s constitution. The most important aspect of the treaty is that it is the way the rule of law came to New Zealand.” Judd is critical of the Labour government’s radical moves toward “separatism” – or what others describe as “cogovernance”. Much controversy has surfaced in the past three years as a result of Labour’s Three Waters reforms, where 50/50 representation of mana whenua and councils would be established on the bodies overseeing the boards of the amalgamated water entities managing the country’s water infrastructure. The creation of Te Aka Whai Ora, the Māori Health Authority, tasked with “indigenising” the health system to better meet the needs of tangata whenua, has also ignited claims of separatism. But co-governance is not new – it has been a feature of

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Issue 36

Chris Finlayson KC

While the treaty’s actual meaning is important, the rule of law is the bedrock of New Zealand’s constitution

Continued on page 08 07

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Gary Judd KC

The treaty is the way the rule of law came to New Zealand

treaty settlements too. Take the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, which set up the Waikato River Authority, a body tasked with looking after and cleaning up the Waikato River. Half of its 10 board members are iwi appointees, selected by Māori from the five iwi bordering the awa. The remaining half are Crown appointees. There exist other co-governance arrangements: Tūpuna Maunga Authority, comprised of equal iwi/Auckland Council membership, manages Auckland’s volcanic cones, including Ōwairaka/Mt Albert. Put simply, “the present government has abandoned the principle of equality when it comes to conferring special rights and privileges on iwi”, Judd says. All New Zealanders should feel concerned about moves to establish separate systems with different entitlements on the “irrational, divisive and evil basis of race or ethnicity. “There has never been any rational basis for making distinctions based on something which no one can do anything about. It has taken humankind centuries to realise this, but it has been understood in civilised societies for several hundred years and it is quite astounding that New Zealand in the 21st century should be sanguine about attempts to turn the clock back.”

When meaning is absent The principles are nothing more than an invention, says Auckland University education professor Elizabeth Rata. The fact that MPs didn’t know what the principles of the Treaty of Waitangi meant when they were inserted into statutes from 1975 is a “monumental political failure” in her eyes. “At the very least, a democracy requires words to have an agreed meaning, otherwise rational communication is impossible.” Two versions of the treaty exist: the 1840 treaty containing the actual articles and what Rata names “the principles treaty”, she says. While the meaning of the 1840 treaty is in its articles, the “inventors” of the principles treaty have, “after decades of uncertainty”, settled on the so-called core principles of

partnership, active protection and redress – despite these words not appearing in the treaty articles. MPs’ failure to define these core principles raises serious questions of legitimacy, Rata says. “In a democracy, parliamentarians represent us, the people. Yet does this authority have legitimacy when, first, our representatives did not know what the principles meant? Second, can the source of parliamentarian authority be said to be based in the final authority of the people when meaning is absent?” Continuing to insert the principles doesn’t make up for the “astonishing” failure of political representation, she says, the consequence of which is a racially divided country. Continuing to do so only makes the failure worse. Until New Zealanders are given the final say, the principles will remain empty words, devoid of the democratic authority claimed for them. Rata says: “The discussion about whether we want treaty principles may be four decades late, but it must happen for the sake of New Zealand democracy.”

‘Specious in the extreme’ Finding an explicit, definitive list of the principles is proving challenging, Sandra Goudie says. The ex-Thames mayor and former National MP for Coromandel says she has been “impelled” to take more decisive action because of the Labour government’s drive to make it harder for local government to comply with te Tiriti. “Treaty legislation has changed from ‘have regard to’ to ‘have regard and give effect to’ and now it’s ‘give effect and provide for’. Someone has to pay for whatever entity – usually a regional and local authority – decides what it will do to ‘give effect and provide for’,” she explains. “And, of course, the onus falls largely on the hard-working mums and dads of New Zealand who own property, paying for local and regional rates that escalate accordingly.” The controversial local politician, who declined to take the Pfizer covid-19 vaccine (although voted for its rollout in

Continued on page 09

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Oct 13, 2023 Issue 36

Continued from page 08 her region) and refused to confirm whether she believed in climate change, asked Environment Minister and AttorneyGeneral David Parker for a copy of the principles in relation to the Natural and Built Environment Act 2023, one of the latest statutes to include a “give effect to” treaty clause. Goudie says while his response was “specious in the extreme”, she was told there is no authorised copy of the principles. “He took pains to assure me the principles have been ‘explored’ and ‘discussed’ by the courts and the Waitangi Tribunal. Sorry to say, but as Attorney-General, he should know that exploration and discussion does not a principle make.” She was further unimpressed when Parker and the Electoral Review Panel offered to give her guidelines on the principles, describing the move as disingenuous. “How can anyone have a guide or guidelines for something that does not exist? No authoritative copy means that as at this point, they – the treaty principles – do not and have never existed.”

Nothing more to add LawNews asked Parker about the principles, whether better definition would remove their ambiguity and whether they should be the bedrock of our constitutional system. The Attorney-General’s responses refer LawNews to a raft of Acts containing treaty clauses (such as the Urban Development Act 2020, the Local Government Act 2002, and the Crown Minerals Act 1991), the High Court decision of Ngāti Whātua Ōrākei v Attorney-General [2022] NZHC 843 (which discusses the principles), and Te Puni Kōkiri’s He Tirohanga o Kawa principles guidebook. Parker gave no indication of his views. On whether he accepts that some New Zealanders are worried the principles are being foisted upon them without their permission, Parker says the courts and the Waitangi Tribunal have “articulated how they apply in particular situations” and lists those widely accepted as core principles: partnership, active protection and redress. Invited to reconsider his answers, Parker said he had nothing more to add.

A foundation stone Harris acknowledges other counter-arguments exist: that the principles don’t go nearly far enough, they aren’t so important when you can reconcile the two texts of te Tiriti and that the Māori text is the more significant version. But some kind of guidance is still necessary. “Even if we magically agreed that we need only to work with the te reo Māori text and therefore we don’t need any other explanation, you’ve still got to balance article one and two using only the Māori text,” she says. “I think you still need some kind of guidance – whether it’s principles or some other guidance – because you have to implement it. You have to make it real for people. “For example, what does the justice system look like when

you have kāwanatanga and rangatiratanga co-existing? Let’s imagine that north of the Brynderwyn Hills is entirely Māori territory. If, say, somebody from Auckland goes and commits a crime there, do they have to go to that local justice system or do they get extradited to Auckland? I still think we would have needed some guidance to work out that.” Do all New Zealanders need to know about the principles and understand what they mean? In the interests of New Zealand’s democracy, it would help if they did, says Harris. But it’s not up to them to bring the principles to life. That responsibility must rest with the Crown. “Te Tiriti wasn’t the destination. It was maybe a foundation stone, a platform, but we still had things to work out after that. That’s especially so, given the tribal nature of the Māori world. The treaty wasn’t the beginning or the end of everything,” she says. “It was a broader, high-level agreement and we had to get to the detail and the detail had to be worked out, I think, locally, with hapū.”

No idea of the treaty Wellington lawyer David Cochrane echoes Harris in saying the starting point of any discussion is that “the treaty is a treaty with the Crown”. The former Chapman Tripp partner was a member of the Waitangi Tribunal between 2014 and 2022. In his experience as a panel member hearing claims about the Trans-Pacific Partnership Agreement (TPPA), the Crown “had no idea of the treaty”, he says. Beginning in June 2015, claims were lodged out of concern that New Zealand’s entry into the TPPA, a free-trade agreement between New Zealand, the US, Japan and nine other Pacific Rim countries, would diminish the Crown’s capacity to fulfil its obligations to Māori under te Tiriti. While a clause in the agreement allowed the Crown to give Māori more favourable treatment, the claimants didn’t believe it would adequately protect Māori interests. They also claimed the Crown’s consultation process fell far short of its partnership obligations. The tribunal in 2016 found the clause should have reasonably protected Māori interests, but was critical of the Crown for not seeking or giving Māori, as the partner to te Tiriti, a realistic opportunity to identify their interests in the TPPA. This difficulty was compounded by the secrecy with which the Crown developed its policy and negotiating position – a likely factor in the low levels of engagement between the Crown and Māori before the claims were lodged. The tribunal was also concerned that lines of advice to the government on Māori interests affected by the TPPA appeared limited. “It is not clear what role TPK [Te Puni Kōkiri] played in Crown engagement or policy during the negotiation of the TPPA. We only heard from MFAT witnesses,” the tribunal said. “We did not see any contemporary evidence of consultation

Elizabeth Rata

The present government has abandoned the principle of equality when it comes to conferring special rights and privileges on iwi

Continued on page 10 09

Continued from page 09

Sandra Goudie

That MPs didn’t know what the principles of the treaty meant when they were inserted into statutes from 1975 is a monumental political failure

between MFAT and TPK on the nature of the Māori interest in the TPPA or engagement with Māori on the TPPA.”

This linguistic shift might be subtle, but “it’s a major mind shift”, he says. Five years after the claims were first lodged, the tribunal found the Crown’s process for engagement over particular issues had been consistent with its Tiriti obligations to Māori.

Consultation then engagement

Expire or expand

One must read between the lines, “but MFAT basically said, ‘we’re not interested. That’s Te Puni Kōkiri’s problem, they can work it out’,” Cochrane says. “That was the attitude: ‘We’ve all got our specialities and that’s our speciality. Of course, the Crown as a whole does comply with its duties because there’s an indivisible Crown so the limb that is Te Puni Kōkiri does the Māori bit, and we do the foreign bit and we don’t expect Te Puni Kōkiri to go overseas and negotiate with the Germans or the French or whomever and we don’t poke our nose into how they handle the Māori aspect’.” This explanation doesn’t sound so offensive, “but it is”. Cochrane says the tribunal concluded the Crown was “very good at dealing with its obligations under international treaties with treaty partners, but not so good at dealing with the domestic treaty partner”. He raises a subtle shift in the tribunal’s language. Five years before the TPPA WAI 2522 inquiry, the tribunal released its WAI 262 report Ko Aotearoa Tēnei, which recommended wide-ranging reforms to laws and policies affecting Māori culture and identity while calling for the Crown-Māori relationship to move beyond grievance to a new era based on partnership. Cochrane says the WAI 262 report is all about “consultation”. But, five years later, the language in the tribunal’s TPPA report reflects something different – “engagement” – a word the TPPA itself uses. Where consultation legally means, “we’ve looked at this issue and there are two or three ways of doing it, here’s the one we prefer, what do you think?”, engagement must occur much earlier, Cochrane explains. Engagement means: “‘We want to do this, what do you think about it? What bits of it interest you? How do you think we should proceed? We may not do it the way you say, but we want to know what you think about what we should do rather than here’s what we’ve decided to do’.”

However, the tribunal left for the final stages of its inquiry some residual issues of engagement and the secrecy of the government’s negotiations with other countries; the claimants still believed the Māori perspective was, as the tribunal’s stage two report puts it, “at the margins, always required to react as best as it can to an agenda and timeframes set by the Crown (and others)”. Those issues were later settled through mediation, which meant the tribunal didn’t end up addressing them. The tribunal’s 2023 Comprehensive and Progressive Agreement for Trans-Pacific Partnership report records MFAT, under the mediation agreement, would “engage with authenticity and integrity” to build a mutually beneficial relationship with the claimants. From there, the parties would set up Ngā Toki Whakarururanga, a by-Māori, for-Māori body advancing and protecting Māori interests in trade. MFAT would ensure the body is “fully engaged with, and has meaningful influence over” trade policy. Ngā Toki Whakarururanga would also, among other things, commission independent Tiriti impact assessments and identify Māori matters that potentially affect relationships with taonga and Tiriti rights. Cochrane doesn’t think the principles have passed their use-by date; to say otherwise is to accept that New Zealand must start over again with how it tries to apply a 183-year-old treaty in 2023. Yet starting over again is too-far-gone an option for the country, he says. “The treaty gets more important as it goes along. Most treaties don’t. Most treaties get less significant as time passes. Treaties either expire or expand because they meet new situations and you have to sit there and say ‘does it cover this or not?’” ■ Next week: how can lawyers ‘give effect’ to te Tiriti and what does the treaty’s constitutional future look like? ■

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Oct 13, 2023 Issue 36

Letter to the editor

Oct 6, 2023 Issue 35

Photo: Phil Walter / Getty Images

TREATY OF WAITANGI

The principles of te Tiriti o Waitangi: where it all started While there is no consensus on what the principles are, a common throughline does exist in te Tiriti jurisprudence: that the treaty forms a partnership based on a duty to act reasonably, honestly and in the utmost good faith – or you don’t trick each other, you don’t try to con each other. You listen to each other but you don’t always agree

Principles of the treaty, international law and power

Cooke P summarised the principles as requiring ‘the Pākehā and Māori treaty partners to act towards each other reasonably and with the utmost good faith’

Reweti Kohere Imagine this: some time has passed since New Zealand went to the polls. With a bare majority, and barring a loss of confidence in the House, a National-Act coalition government is leading Aotearoa New Zealand for the next three years. In the run-up to the election, Act has announced a bottom line in any post-election coalition negotiation: a new statute defining for the first time the principles of te Tiriti o Waitangi, subject to voters approving it in a referendum. New Prime Minister Christopher Luxon’s response? “That is something that’s not our policy and we don’t support it.” Except National ends up agreeing to it. The new government’s coalition agreement reveals National will help pass Act’s Treaty Principles Bill. Act leader David Seymour, in comments echoing the party’s race relations policy document, says an open debate about the treaty and its place in “our

Continued on page 04 02

Tracking down the principles of the treaty Alongside the debate on whether lawyers require an independent regulator, the most controversial proposition put forward by the three-person panel reviewing the legal profession was that the principles of the Treaty of Waitangi should be incorporated into the Lawyers and Conveyancers Act 2006. Problem is, most New Zealanders have few clues about what these principles might be. In a three-part series beginning today, LawNews investigates the origin of principles, whether consensus can ever be achieved on what they are and whether it is realistic to try to incorporate them into the Act that lays out lawyers’ fundamental professional obligations.

communities which is deemed divisive. I write in response to Reweti Kohere’s article in last week’s LawNews To include the treaty as part of this debate is, I think, unfortunate. It is I worked for the Waitangi Tribunal when I first was admitted to the bar in also superfluous for many constituents. In the script of the treaty itself 1992 and wrote reports for small claims, as they were then known. During many authors have written that contextually it did cede sovereignty. In the this period, the Kai Tahu fish claims were released, Muriwhena claims judgments referred to in the article, sovereignty was ceded. (Northland) were being written after hearings and hearings for Taranaki The troublesome relationship (governance versus sovereignty) has been were being conducted. brought into stark relief by the election, where questions of identity have From there, I went on to work for Carmen Kirkwood who, with Ngaaneko been raised: what is a Māori and who are the tangata whenua?, questions Minhinnick of Huakina Development Trust fame, spearheaded the of three (or 10) waters and co-governance. Manukau harbour claims (where Dame Sian Elias was I live around farmers and most people I socialise with (aside counsel in the 1980s). I say all this as I worked in this I do not agree from other lawyers) are Pakeha and Māori farmers. Both, jurisdiction, but it was post the period of the SOE cases that a treaty surprising as it may seem, are of the same view: that the where the treaty principles were developed. Where I think the debate is more interesting is not so much can evolve; nor treaty “partnership” in whatever form it takes means little the meaning of the principles. As Mark Burton, the former can principles to them. What our rural communities wish for are the more Minister for Treaty Negotiations has said, it is what to do derived from a fundamental expectations of their government (whether with the relationship that counts. that includes Māori members of Parliament, or not). It will I disagree with the Chapman Tripp partner David Cochrane, treaty evolve not be lost on many Māori that there has been a heavy a tribunal member from 2014 to 2021. I do not agree that a Māori presence in government – Kelvin Davis and Marama treaty can evolve; nor can principles derived from a treaty Davidson, for instance. Has the lot of Māori improved over evolve. Relationships can, and I am not sure that the state the past six years? Māori, like Pakeha, are concerned with the economy of the relationships between Māori and Pakeha are in harmony right now, and, as producers, Māori are concerned about any regulation. It either which makes for good debate on this issue. stymies their productivity or enhances it. With employment at an all-time Treaties, governed by international law, are usually interpreted within high (with only 3.6% unemployment) the days of confining our discussion the context of the time they were signed. I recall that Queen Victoria about Māori to gangs and Māori in crime really do need to move on to a was invited and reluctantly proposed to take on sovereignty over this dominion. Should treaties evolve, then it makes it somewhat difficult for the more mature conversation. Wetland development as an aspect of land development on private and signatories to know what their obligations are. public farms, which enables enhancement of indigenous species, has been I appreciate that some are trying to re-write or re-interpret the first article embraced in Matamata, parts of the Manawatu and in parts of the South of the treaty to say there was no sovereignty ceded. Again, the principles Island (to name one initiative). Some are Pakeha and Māori partnerships developed by Robin Cooke, I think, were made against this big issue of and some are one or the other, alone. what to do with rangatiratanga, sovereignty and kawanatanga. The maxim This is an example of farmers taking on community concerns on their “lost in translation” is, and was, a problem with a treaty written in two private or public lands which they farm. Credits for tax, under the languages. We can see, however, that both the treaty and the principles emissions trade scheme, where whole tracts of land from Whakatane derived from it have been interpreted as ceding sovereignty. What will and down the East Cape on to Wairoa have shown what disaster such an come if this debate continues, where it is re-interpreted that sovereignty incentive and regulation may bring. It did neither enhance productivity was not indeed ceded, some 180 years on? on the land, nor did it benefit the air or land environs. The man-made Amidst the election debate, what was ceded and what this means for the future of governance is again rearing its head. Sovereignty and governance are two different things which we as lawyers may appreciate, but many Continued on page 12 constituents/lay persons do not. Hence the current fear out there in our

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roads that bring goods and services to all those remote areas were wrecked, bringing economic devastation which the country will pay for over decades. A local farmer where I live, using his choppers, sent in supplies to all Māori and Pakeha farmers for two weeks, in February, when the government did not assist. Claudia Orange, (interviewed on 7 February 2021 about her book The Treaty of Waitangi (2020, 3rd ed, Wellington Press)), says she cited, in the first edition published in 1987, a Ngaapuhi who told her “we’re not really concerned ..about the money and the benefits that a settlement would bring. We simply want the government to treat us as equals”. As one of the principles of the treaty is to be equal, I am not sure all Māori would echo that concern about money and benefits. Justice Sir Joe Williams said in a speech delivered at Victoria University in December 2019 as part of the annual Robin Cooke lecture series: “A small number of chiefs even did rather well out of colonisation.” This is the worrying point for many constituents today. If they are not ‘in power’, do they get to share the benefits that come with the power? Do any economic windfalls get passed on? We cannot survive on air nor mana, alone, you see. ■ SK Green Barrister

More treaty principles uncovered Great historical references to the principles of Te Tiriti, however there is no mention of the updated principles of the Hauora Claim 2019 Wai 2575 or indeed the Pae Ora Act 2022. These include: ■ the guarantee of tino rangatiratanga; ■ partnership; ■ active protection; ■ equity; and ■ options. These principles were written into the Pae Ora legislation, except for the guarantee of tino ranagatiratanga. This is in fact an article of Te Tiriti o Waitangi which was ignored purposefully. ■ Lady Tureiti Moxon Managing Director Te Kohao Health Waikato

Oct 13, 2023 Issue 36

INTERNATIONAL LAW

Why did Hamas attack and why now? What does it hope to gain? The overall lesson for Israel is that it has to develop a policy for managing the Palestinians living in the areas it controls Ian Parmeter In hindsight, the drivers of Hamas’s startlingly wellplanned, land-sea-air attack on Israel on Saturday were in plain sight. The operation reflects a pattern of four wars and regular outbreaks of violence between Israel and Hamas militants in Gaza since 2005, when Israel withdrew its military posts and forcibly removed 9,000 Israeli settlers from the territory. Each time Hamas has launched rockets at Israel or engaged in similar provocations, it has drawn heavy retaliation from Israel in the form of major bombings on the Gaza Strip. Hamas, however, seems to regard this as a cost of doing business. An important factor motivating Hamas towards violence is that it has to watch its flanks. Other smaller, but increasingly extremist, groups are contesting its authority in Gaza, notably Palestinian Islamic Jihad. These groups have, at times, independently launched rocket attacks on Israel, which bring retribution on the whole territory.

On top of this, the Israeli government formed by Prime Minister Benjamin Netanyahu last December is the most right-wing in Israeli history. It has made no secret of its desire to annex the West Bank and has permitted significant expansion of Jewish settlements in the territory, which are illegal under international law. That has led to conflict between settlers and young West Bank Palestinians, who in the past year have formed a loose grouping known as the “Lions’ Den”. This grouping, comprising independent militants with apparently no central control, has scant regard for the Palestinian Authority which governs the West Bank and is led by the octogenarian Mahmoud Abbas. The Palestinian Authority has little real administrative, security or moral authority in the territory. The “Lions’ Den” also vies with Gaza militant groups for influence among Palestinian youth, both in Gaza and the West Bank. Added to this, a minister in Netanyahu’s coalition, Itamar Ben-Gvir, has visited the Temple Mount, the site of the Al-Aqsa Mosque, one of the holiest shrines

in Islam. This was considered a provocation by all Palestinians, both in the West Bank and Gaza. Further angering Palestinians, Israeli tourists also travelled to the site during the recent Sukkot holiday. A visit to the Temple Mount by Ariel Sharon in 2000, then the leader of the opposition in Israel’s government, is generally regarded as the spark that ignited the Second Intifada from 2000-2005. Under an agreement predating Israel’s foundation, Jordan has custodianship of the Al-Aqsa religious complex. Israel aimed to respect Jordan’s role when it signed the Israeli-Jordanian peace treaty in 1994. But Palestinians see the visits by Israeli ministers and nonMuslim tourists as disrespectful of the sanctity of the site and counter to this undertaking. Hamas has also claimed these visits have led to the desecration of the Al-Aqsa site, an argument obviously aimed at winning support from Muslims throughout the Arab and wider Islamic world.

Why attack now? Significantly, Hamas has named its action “Operation Al-Aqsa Flood”. This provides some clues to the primary reason for striking at this time, which

Continued on page 18

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emphasises what Hamas sees as Israeli acts of desecration of a holy Islamic site. However, an additional motivating factor was likely the increasing tendency of Arab states to make peace agreements with Israel, as evidenced by the 2020 Abraham Accords, involving the United Arab Emirates, Bahrain, Sudan and Morocco. There has recently been strong speculation that Saudi Arabia is about to make its own agreement with Israel. This is of great concern to all Palestinians, not just those in the West Bank, as it further reduces pressure on Israel to reach a settlement with them. Netanyahu has made clear in his public statements that he prioritises peace with Arab states over eventual peace with the Palestinians. Hamas does not recognise Israel, but has said it would observe a truce if Israel withdrew to its 1967 borders. Israel would be unlikely to take Hamas’s word on this and withdraw as demanded. But there would be even less chance of that condition ever being realised if Saudi Arabia were to conclude its own deal with Israel. Another aspect of the timing is that it coincides almost precisely with the 50th anniversary of the start of the Yom Kippur or Ramadan War in October 1973, when Egypt and Syria attacked Israel together. The significance of a Palestinian entity being able to surprise Israel in the same way would not be lost on Hamas. So there were several objectives for Hamas to launch an attack at this time – and possibly a combination of them. Hamas is likely to gain much sympathy from the wider Arab world, but little in the way of material assistance. Hamas’s military operation will likely cause Saudi Arabia to hold back from normalising relations

Israel may send special forces if it gains intelligence on the whereabouts of its kidnapped citizens

with Israel for now. That said, it’s unlikely any of the Arab states that have signed the Abraham Accords will withdraw from them now in protest at Israeli retaliation against Gaza.

Where the conflict is headed Where the conflict is headed is unclear. The Hezbollah militant group in Lebanon has already fired on positions in Israel’s north. But the extent to which it will become seriously involved will depend on its sponsor, Iran. Tehran has generally been seen to want to keep Hezbollah’s considerable rocket and missile strength in reserve in case of an Israeli strike on Iranian nuclear facilities. There is also the question of whether “Lions’ Den” militants in the West Bank will launch their own attacks, effectively creating a third front against Israel.

And a possible fourth front could come from attacks on Jewish Israelis by Arab Israelis living in Israel. US President Joe Biden has already promised support for Israel, so there can be little doubt Israel will eventually get on top of these challenges. Netanyahu has warned of a long war, but it may prove reasonably short if Israel goes all out in its retaliation. The main constraint on Israeli action against Gaza will be the fact that an unknown number of Israeli citizens have been kidnapped by Hamas militants and taken to the strip. Indiscriminate Israeli bombing would certainly put those lives at risk. Israel will also be reluctant to put its defence forces in Gaza because of the risk of heavy casualties. However, it may send special forces if it gains intelligence on the whereabouts of its kidnapped citizens. A further risk for Israel in its retaliation is that too brutal an assault on Gaza could turn Western opinion against it. So far, however, Western governments are strongly supportive of Israel and unsympathetic towards Hamas. The overall lesson for Israel is that it has to develop a policy for managing the Palestinians living in the areas it controls. The current situation, in which hard-line militants are contained in Gaza while Israeli forces curtail the actions of Palestinians living in Israel and the West Bank, has suited the Israeli government for many years. It has been able to ignore Arab and international pressure to negotiate a two-state solution or to acquiesce in a one-state solution. The real significance of Hamas’s operation is that such a non-policy can no longer continue. ■ Ian Parmeter is a research scholar at the Centre for Arab and Islamic Studies at Australian National University ■ The above appeared first in The Conversation and is republished with permission

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