TIKA CHAMBERS BARRISTERS

TAVAKE AFEAKI PO Box 7728, Wellesley Street, Auckland 1141

Phone: (09) 307-6997/Fax: (09) 307-6992 Email: tavake@tikachambers.co.nz

KEI MUA TE RŌPU WHAKAMANA I TE TIRITI WAI 900 BEFORE THE WAITANGI TRIBUNAL OF NEW ZEALAND Wai 703, 1446

I TE TAKE O TE TURE I TE TIRITI O WAITANGI 1975

IN THE MATTER OF THE TREATY OF WAITANGI ACT 1975

ME AND I TE TAKE O TE TAIRĀWHITI INQUIRY IN THE MATTER OF EAST COAST INQUIRY ME AND I TE TAKE O DAVID SWANN RĀTOU

KO NGĀTI ONEONE IN THE MATTER OF DAVID SWANN AND

OTHERS FOR AND ON BEHALF OF NGĀTI ONEONE

HE WHAKAPĀ TUHINGA O NGĀ ROIA KAI-KERĒME MO WAI 703, 1446 MEMORANDUM OF COUNSEL FOR WAI 703, 1446

TĒNEI TE RĀ 11 O HERE-TURI-KOKA, 2011

11 AUGUST, 2011

Wai 1446, #3.1.24 Wai 703, #2.24

703.1446.MOC.TTS.100811.docx

2

HE WHAKAPĀ TUHINGA O NGĀ ROIA KAI-KERĒME MO WAI 703, 1446 MEMORANDUM OF COUNSEL FOR WAI 703, 1446

MENA KA PAI KI TE ROPU WHAKAMANA I TE TIRITI

MAY IT PLEASE THE TRIBUNAL

1. This memorandum replies to the Crown response memorandum dated 1 August 2011.

2. This case is not about “cattle cars and death camps” as the tone of the Crown memorandum suggests. Genocide comes in many shapes and forms as well as having infamous precursors such as the Nürnberger Rassengesetze (the Nuremberg Laws of 1935).1

3. It is to be noted within the New Zealand historical context that Crown war-criminality has been reported on by the Waitangi Tribunal in the chapter concerned with Ngatapa in the Tūranga Report (Tūranga Tangata Tūranga Whenua: The Report on the Tūranganui a Kiwa Claims). Māori

4. In that report the in-depth analysis undertaken by the Tribunal whereby it was established as a fact that between 86 and 125 prisoners of war2 were murdered in cold blood by Crown forces. It is hard to imagine anything that comes so close to being a genocidal episode if not actually being one in its own right.3

1 Nürnberger Rassengesetzeinstitutionalisierten die National sozialisten ihre antisemitische Ideologie auf juristischer Grundlage (The Nauremberg laws were the legal basis for institutionalisation of Nazi antisemitic ideologie).

2 In Tūranga Tangata Tūranga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: [...]; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Tūranga Māori ‘alleged’ to be rebels. (Summary to the Tūranga Tangata Tūranga Whenua: The Report on the Tūranganui a Kiwa Claim).

3 The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Māori from the Tūranga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history. (Summary to the Tūranga Tangata Tūranga Whenua: The Report on the Tūranganui a Kiwa Claim).

3

5. Counsel was being very careful in the header paragraph of the application4 for urgency in this case to refer to the appropriate categorization of genocide that counsel submits rightly applies in this case (counsel’s emphasis).

Crown acts committed with intent to destroy, in whole or in part, ..., ethnical, ..., as such: [...] causing serious bodily or mental harm to members of the group [Ngāti Oneone]; deliberately inflicting on the group [Ngāti Oneone] conditions of life, calculated to bring about its physical destruction in whole or in part

6. The international legal definition of the crime of genocide is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide. Article II describes two elements of the crime of genocide: 1) the mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and 2) the physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called "genocide." Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity.

7. An excerpt from the Convention on the Prevention and Punishment of Genocide Article II informs this discussion (counsel’s emphasis as to that which is applicable in the current context): In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

4 TAKE NOTICE that on a day in July 2011 at a time in the fore or afternoon or at such time as the

matter may be heard and after counsel for the claimant and the Crown have been heard counsel

for the claimant WILL SEEK DIRECTIONS from the Tribunal granting an urgent hearing into the

Crown’s action namely that of perpetrating genocide (Crown acts committed with intent to

destroy, in whole or in part, ..., ethnical, ..., as such: [...] causing serious bodily or mental harm to

members of the group [Ngāti Oneone]; deliberately inflicting on the group [Ngāti Oneone]

conditions of life, calculated to bring about its physical destruction in whole or in part) against

the applicant and his hapū, wherefore the same is in breach of the International Crimes And

International Criminal Court Act 2000 and the Principles of the Treaty of Waitangi:

4

8. This is not an instance of the applicant suggesting Crown-murder (as so grimly perceived by the Crown in its memorandum) but rather it is the harm done by the exercise of legal authority in the Crown—through its operational policies—which reifies Ngāti Oneone as a hapū of Ngāti Porou when such a statement is so clearly factually and historically false. Cultural genocide is a form of genocide and this is clearly a form of cultural genocide.

9. The extermination of peoples begins with the destruction of their identities and this is a well-known feature of genocidal conduct by governments who wish distinctions of identity eliminated in order to advance a political agenda.5

10. It may well be that the case here is at the low end of the genocidal spectrum (and counsel is prepared to accept that) but it still fits within the definition of international law. It is the mental destructiveness of the Crown conduct forcing an independent hapū Ngāti Oneone to be legally exterminated by a stroke of a legislative pen.

11. This is common play in New Zealand and is a feature of Crown policy: Big iwi are to assimilate small iwi for the purposes of Treaty settlements (for example Ngāti Apa (NI) subsuming Nga Wairiki; the insidious part of this process begins with the Crown denying the tribal identity of those who express or imply their own independence as a starting point in a relationship with the Crown; see Report on Aspects of the Nga Wairiki Claim Wai 6556). It is wrong, it is morally wrong, it is illegal at international

5 The Nazi regime issued more than 400 separate laws and decrees against the Jews in Germany.

If one includes the decrees issued in Nazi-occupied territories the total would run to some

thousands. they were banned from government jobs; banned from owning land; they were

deprived of economic and political rights; they were not allowed to engage in sexual relations or

marry a 'pure German'; banned from joining the army; banned from key professions; teaching;

accountancy dentistry etc; they had to carry name tags; identification cards so to speak; they had

to register all wealth and property; cinemas were also censored. they used this method to turn

the German people against them and so they did; they burned a lot of Jewish books; or books

written by Jewish people.

6 The report’s findings are that, in 1849, Ngā Wairiki suffered a heavy blow to their identity as a recognisably distinct iwi. This came about when Donald McLean, Crown agent, deliberately overlooked the separate identity of Ngā Wairiki in arranging the purchase by the Crown of the lands comprised in the Rangitīkei–Turakina purchase. Colonial processes generally conspired to merge the identities of the groups whose interests were affected by the signing of the deed. The Tribunal found that the Crown, through its agent McLean, breached the Treaty principles of good faith and active protection, and in doing so caused prejudice to Ngā Wairiki by undermining their ability to survive as a group with separate identity and recognition.

5

law and it amounts to a form of genocide. It is New Zealand’s form of ethnic cleansing.

The Jurisdiction Issue section 6(6) Of the Treaty of Waitangi Act 1975

12. The Crown raises the jurisdictional issue and this may be easily dealt with in the following way. The application for urgency is not an impeachment of the Ngāti Porou Settlements Bill currently before the House. If it were then the application would run foul of section 6(6). It is an impeachment of everything done by the Crown in this context ‘the context that preceded it’ (Mair para 155 below).

13. In the Mair case (Attorney-General v Mair - BC200966841) at paragraph 155 et seq. the Court of Appeal discusses the extent or not of section 6(6) and clearly states that Crown acts and omissions which pre-date the matter that is the subject of any bill before the House is able to be the subject of inquiry by the Waitangi Tribunal (emphasis in the original).

[155] Section 5 of the Interpretation Act 1999 requires the court to consider text and purpose. Section 6(6) of the Treaty of Waitangi Act does not say it may be used to stop the agreed statutory process. It does no more than its text states: it concerns freedom of parliamentary speech and prevents the Tribunal from examining a bill; not the conduct that preceded it.

[156] Since the text supports the respondents, if the Crown’s argument is to be accepted the text must be read up, according to some inconsistent purpose, to capture what its plain language does not cover.

[157] The argument for doing so is that the courts of New Zealand would infringe principles of comity with Parliament by presuming to examine conduct that preceded a bill with overlapping content.

[158] But Art 9 of the Bill of Rights has no greater application here than is provided by s 6(6). It is the very purpose of the Treaty of Waitangi Act to subject to the jurisdiction of the Tribunal all conduct of the Crown both as Executive and as Legislature, even including Acts of Parliament, other than what falls within the language of the s 6(6) exception. What matters is New Zealand’s own

6

legislation, read in the light of ss 5 and 6 of the Interpretation Act and the constitutional evolution of this country.

[159] The construction asserted by the Crown would deny to Māori rights resulting from the settlement of the Lands case and the Forests case. It therefore raises the question whether, as was necessary in the Forests case, a second application should now be made to this Court pursuant to the leave reserved in the former decision.

[160] If Parliament had such purpose it could readily have said so. This Court would require very clear language before accepting such a result. But there is none.

[161] It is contrary to settled principles of Crown dealing with indigenous peoples for legislation to be read up against them and their interests. Parliament has chosen to limit the constraint on the Tribunal’s jurisdiction only to specific interference with its own processes; apart from that the Tribunal is empowered to examine all prior conduct. There is no reason to make any assumption to the contrary.

[162] Since Parliament has authorised the Tribunal to review statutes it must a fortiori countenance review of all Legislative and Executive conduct short of the bills referred to in s 6(6).

[163] In considering purpose there is need for comparative examination. While there is good reason for it, it is the case that New Zealand courts are now alone in the free world in not claiming the power to set aside legislation as unconstitutional. To a significant extent the United Kingdom and Israel have left that category. By not claiming such a power the New Zealand courts recognise that such an exceptional regime has proved broadly satisfactory for this small community. But to withdraw from reviewing conduct antedating introduction of the bill would take us even further from what elsewhere is considered necessary to protect the constitutional rights from the very kind of loss in this case to which, since Mr McLean, Māori have been vulnerable.

7

[164] Elsewhere there are effective protections against and remedies for expropriation. In Italy the Constitutional Court has recently applied the principle of equality in order to reject Prime Minister Berlusconi’s claim to be the only citizen exempt from the criminal law: Judgment no 262 of 2009 19 October 2009. It is inconsistent with New Zealand jurisprudence to apply that principle in reverse: that while other New Zealanders can come to the ordinary courts to vindicate their property rights, Mäori who received a statutory protection for theirs by ss 8HA–8HI will be prevented from enforcing them if a backbencher happens to have obtained a ballot permitting presentation of an inconsistent bill.

[165] Since Art 1 of the Bill of Rights of 1688, the law has excluded the Executive from overriding vested legal rights. It is one thing for Parliament to be able to do so, butto permit the Executive to revoke a legal right of access to the s 8HA–8HI procedures is another thing again. Whatever the construction of s 6(6) before the enactment of ss 8A–8H and 8HA–8HI, Parliament has come nowhere near saying that the clawback they guarantee can be stopped in its tracks as the Crown proposes.

[166] Section 6 of the Interpretation Act requires the courts to construe legislation in the light of changing circumstances. One can imagine the reaction of the plaintiffs in the Lands and Forests cases if during the negotiations the Crown had said “You realise that we can disapply the whole scheme of ss 8A–8H and 8HA–8HI by deciding to lodge an inconsistent bill in the House”. Any such suggestion would have run foul of the “honour of the Crown”. It still does.

[167] It may be added that if s 6(6) were intended to have the effect suggested by the Crown, it could hardly have escaped the notice of the Crown counsel before the Tribunal in the Lands case, which in addition contained members with outstanding legal experience. The point would have defeated the report that led to s 9 of the SOE Act. What was before the Tribunal was not a challenge to the parliamentary process but an invitation to it to perform its function of advising the Executive about a topic which warranted the attention of each. In the result Parliament was able to legislate in a manner that was better informed.

8

To facilitate the due conduct of the business of the House is the precise opposite of the challenge to its dignity to which s 9 of the SOE Act is directed. Neither s 9 of the SOE Act nor s 6(6) of the Treaty of Waitangi Act presented an impediment that was surprisingly overlooked.

[168] While the Tribunal has also given opinions to the opposite effect, it is ultimately for the Court, not the Tribunal, to determine the meaning of statutes.

14. That being so, the section 6(6) argument does not apply in this

case and accordingly the Tribunal is invited to hold an urgency hearing as to the matters raised in the application. In other words see para 162: ‘[162] Since Parliament has authorised the Tribunal to review statutes it must a fortiori countenance review of all Legislative and Executive conduct short of the bills referred to in s 6(6).’

The Haronga Case (Haronga v Waitangi Tribunal - BC201161628)

15. The Haronga case is relevant here not on the facts but rather on the principles that apply in the case of the Tribunal undertaking inquiries. That is to say that the Tribunal is required to follow its statutory regime in such a way that it discharges what is required of it by law.

16. Haronga was mentioned in this context because it appears to overturn the passage raised in the Crown memorandum (a) concerned with the subsumption of claims into a larger Crown settlement, and (b) concerned with smaller groups with legitimate claims being squeezed and therefore subsumed into Crown settlements. Ngāti Oneone wishes to have the matters they raise investigated by Tribunal inquiry since the allegations are of the most serious kind and affect all Crown settlements in the country to some greater or lesser degree.

17. The Haronga case therefore, it is submitted, completely relevant.

The 6AA Application (s 6AA of the Treaty of Waitangi Act 1975)

18. It was envisaged that, should the Tribunal grant urgency and find in favour of Ngāti Oneone, then logically the option would be to have the matter investigated in terms of section 6AA. That is still the position.

9

19. Counsel submits that this is a case where it is appropriate that matters concerning relationships with the Crown are sorted according to iwi or hapū individuality. Ngāti Oneone says it has its own relationship with the Crown because it is an independent iwi and that Ngāti Porou is an independent iwi that can have its relationship with the Crown but without the subsumption of Ngāti Oneone.

20. Matters of tikanga and whakapapa matter significantly in such a case before the Māori Appellate Court

Affidavit

21. An affidavit by a member of Ngāti Oneone can be filed herewith in support of the application at the Tribunal’s request.

Dated this 11th day of August, 2011

____________________________________________

Counsel Acting Tavake Barron Afeaki

To: The Registrar of the Waitangi Tribunal

To: Counsel for the Crown – Te Tairāwhiti / East Coat Inquiry

To: Counsel for claimants – Te Tairāwhiti / East Coast Inquiry