Today marks the commencement of the Government’s consultation round on the “shares plus” concept raised in the Waitangi Tribunal’s interim report into the New Zealand Māori Council’s freshwater and state-owned enterprise claim. I spoke briefly about the Government’s duty to consult on Newstalk ZB this morning, but time constraints resulted in a rather truncated analysis.
The Duty to Consult
The duty to consult is a long-standing principle of natural justice. It is as extension of the common law right of Audi Alteram Partem (the right to be heard) and arose as Government decision-making extending beyond decisions primarily affecting individuals to decisions affecting larger numbers of people.
Initially, the Courts did not recognise any duty to consult implicit in Te Tiriti o Waitangi. In he landmark 1987 Lands case, the Court of Appeal defined consultation with Māori as being elusive and unworkable, although a precise reading of these comments can see that the nature of the consultation referring to by the Court was full consultation with Māori on all issues. Framed as an all-encompassing duty to consult in all situations it is easy to see why such a duty can be elusive and unworkable. The Court of Appeal would make this distinction clear in the Forests case (NZMC v Attorney-General  2 NZLR 142) when it held that the duty of good faith requires consultation on “truly major issues”
The Tribunal continued to develop the nature of the duty to consult during the 1990s and in the 2002 Ahu Moana: Agriculture and Marine Farming Report (Wai 953), noted that:
It is now well established that, in a matter of particular significance to Māori, the Crown has a duty to act reasonably, to make informed decisions, and to turn its mind to the future needs of Māori. This cannot be done without consultation. Full discussion must take place with Māori before the Crown makes any decisions on matters that may impinge upon the rangatiratanga of a tribe or hapū in relation to its taonga.
The duty is, however, not absolute. The Court of Appeal, in Wellington International Airport, held that consultation does not mean agreement, nor does it envisage negotiations towards an agreement. It does, however, require more than a prior notification that the Government intends to pursue a particular course of action.
For this discussion, the following principles can be distilled:
- The Government has a duty to consult with Māori on issues that impinge on the exercise of tino rangatiratanga;
- Mere notification of a planned course of action is not sufficient;
- Consultation is a genuine, open-minded, discussion between the Government and affected Māori; and
- Consultation does not mean agreement.
The Government’s “Shares-Plus” Consultation Process
There are some positives and some negatives of the current process being undertaken by the Government.
- The Government has made an effort to go out and talk to those iwi directly affected by the planned sell down of the power companies. The Hui are being held in the rohe where the hydroelectric dams exist and impact on the rangatiratanga of local iwi and hapū.
- The Government is engaging in this process with the Deputy Prime Minister, with facilitation to be shared by Sir Wira Gardiner and a chair appointed by local Māori. A high-level discussion with the politicians making the decisions is more positive than one with officials only.
- Information on the hui was only released last night. I presume that the Government has made contact with the local hapū in advance, the short public notification leaves little time for those within the area to organise themselves and present a detailed argument for the adoption of the shares plus model.
- In many respects the Government is treating this as a pro-forma exercise of consultation. It is merely ticking the boxes to satisfy the Court in the event of a challenge to the sale process that it has followed due process.
This second negative could come back to haunt this Government. While consultation does mean agreement, the Government cannot enter into consultation with a pre-determined outcome in mind. The Press Release yesterday referred to the “shares-plus” concept as follows:
The Government has already said that such a shareholding would be unattractive, unnecessary and unworkable but now that the matter has been raised we will talk to affected Iwi about it.
The Tainui Boycott
Finally, news came through this morning that Waikato-Tainui will not be attending the first consultation hui in Hamilton this afternoon. Tainui are clearly of the opinion that these issues require a national hui but their boycott is misguided for two reasons. The first is that these hui are designed to be very specific in the issues that are discussed and a national hui is not an appropriate place to discuss the “shares-plus” concept. Māori input in the operations and management of hydro-electric power companies should be limited to those iwi and hapū who are directly affected by the companies, i.e: those that have hydro damns on their waterways. A national hui with the Government on freshwater management is important and should be held, but that issue is completely different to the issue under discussion today. Tainui risk being shut out of this process completely.
That point leads directly onto the second problem with Tainui’s approach. The High Court, in the recent decision of Greenpeace v Minister of Energy and Resources  NZHC 1422, commented directly on this issue. The Court noted that the Government held two consultation rounds and that the local hapū, Te Whanau-a-Apanui, did not make any submissions as to concern for its taonga. The Court noted that Te Whanau-a-Apanui were provided with advance notice of the consultation and received an offer of a face-to-face discussion. The hapū did not actively engage with the Ministry. The Court stated that consultation and good faith is a two-way street, and requires the engagement of both parties. The Court concluded by stating that:
If Te Whanau-a-Apanui had the concerns it now puts forward, on the basis of later opinion advice, it would have raised them then [at the time of consultation]. In choosing not to actively participate substantively or respond to the request to consult, it cannot complain now.