What’s the Treaty got to do with the Rena?!?

Environment | Print Article

[Spring 2014]

Someone said a while ago that if an asteroid were on its way to Earth, the Daily Telegraph would write it up as another attack on the middle class.

When asteroid Rena landed on Otaiti Reef three years ago, a crusty old cynic might have regarded it as only a matter of time till the Waitangi Tribunal wrote it up as a breach of the Treaty.

The Tribunal’s Interim Report on the MV Rena and Motiti Island Claims was released in late July 2014, and it does indeed consider the Crown to have breached its obligations under the Treaty. But before Telegraph readers and the encrusted get too excited, they should download a copy from the Tribunal’s website and have a look.

The first thing to be noticed is that nobody alleges in this proceeding that the wreck of the MV Rena is itself a breach of the Crown’s obligations to Maori.

The claimants’ concerns related to the adequacy of the consultation process undertaken by the Crown after it had already bound itself to consider, in good faith, making a submission in support of the ship owner’s application to leave the wreck on the reef. The agreement includes provision for a payment to the Crown for ‘public purposes’ if the Crown makes such a submission (or does not oppose the application), and the consent application succeeds.

Why should a small group of Maori get a hearing on this issue, and what more can they expect to achieve in any event?

Plainly, there are extremely difficult issues for the Crown to deal with here: legal, technical, safety, environmental, commercial and economic, to name a few. It would be tempting to place more weight on these than on cultural or Treaty issues, and to argue that all citizens are equally vulnerable to damage by this kind of event. The civil courts are available to all where damage to commercial interests has occurred; and the Environment Court is open to all who have an appropriate interest and the funding to make submissions.

The reason Maori get another bite at the cherry is that the Treaty of Waitangi Act 1975 gave the Waitangi Tribunal jurisdiction to hear, and make recommendations about claims that the Treaty has been breached. New Zealand law may once have regarded the Treaty as a nullity, or at best a nice idea, but from 1975 on there has been statutory respect paid to the view that a deal is a deal, however confusingly it has been phrased.

And so it is that the Maori people of Motiti Island are able to ask the Tribunal to state that the Crown has a duty (under the Treaty) to protect the environment itself, and to protect Maori in their exercise of rangatiratanga over taonga (‘treasures, precious things’). The Tribunal had no hesitation in finding that the reef was a taonga, and that the Crown did have the duties suggested.

What is the practical outcome of such a finding? Already owners and insurers, as well as the government, are pointing to the extreme risks to life and limb of an operation to remove a wreck from far below a very rough sea. The Tribunal leaves such issues to the parties and the Environment Court.

The recommendations in the Report relate to what the Crown should do in its own submissions to the Environment Court (especially in light of the various Deeds signed with owners and insurers); and how the Crown should assist Maori to make properly informed submissions of their own.

Implicit in all of this, of course, is the suggestion that the Crown ought really to try harder in meeting its obligations to Maori, even in these extraordinarily tough cases: consultation, for example, doesn’t mean just sending someone to listen, but providing as much information as possible to Maori so that they can make an educated submission to the Environment Court on matters essential to them.

Urgent hearings of the Waitangi Tribunal are not granted lightly. With limited resources, and many claims to be dealt with, the Tribunal requires claimants to show that there would be significant and irreversible prejudice to them if the hearing were not held urgently, and that there is no other reasonable remedy available. The urgent nature of the proceedings, and the requirement to get out recommendations to the relevant ministers before it is too late, put huge pressure on all involved.

Telegraph readers, and crusty old cynics, should be reassured by the firm but measured tones of this Tribunal (Judge Sarah Reeves, Sir Tamati Reedy, Sir Doug Kidd, and Ron Crosby). Its recommendations may or may not be heeded, but there is nothing in them that each of us would not want someone to say about our own treasured places. In some ways, perhaps, the Waitangi Tribunal has become a forum in which we can still hear arguments about losses that cannot be fixed with money.