THE WAITANGI TRIBUNAL
WAI No 1071
IN THE MATTER of the Treaty of Waitangi Act 1975
AND
IN THE MATTER of Applications for an urgent inquiry into Foreshore and Seabed issues

MEMORANDUM ON BEHALF OF THE CROWN
Dated 23 October 2003

MAY IT PLEASE THE TRIBUNAL
1. At the Judicial Conference on 20th October 2003, the Presiding Officer asked counsel to take instructions on whether the Crown would agree to the following timeframes for any resumed hearing:
1.1 A period of six weeks from the confirmation of a final Crown policy position to the resumption of hearing;
1.2 A period of five days for the hearing itself;
1.3 A period of two months following the hearing, for the Tribunal to prepare and issue its report.
2. The Crown’s response is as follows:
2.1 Initial Crown support for an urgent hearing was based upon the then expected policy and legislative timeline. For reasons set out in its Memorandum dated 17th October 2003, the Crown has reconsidered that timeline.
2.2 The Crown has always accepted the need to consult with Maori concerning its foreshore and seabed policy – the hui and the call for public submissions were part of that consultation process. However, the Crown accepts the need to engage further with Maori, and steps are now underway to facilitate that.
2.3 In that connection, the Crown does not agree with the Tribunal’s view (as expressed at paragraph 2.5 of its Memorandum dated 10 October 2003) that “the only opportunity for sustained and meaningful engagement” between the Crown and Maori is in the context of the Tribunal Inquiry. While the Crown would like to take advantage of the Tribunal’s expertise in matters relating to Maori customary interests in foreshore and seabed, and is interested in hearing its views about the Crown’s foreshore and seabed policy, it considers that consultation and discussion with Maori is best carried out face-to-face, and not in the context of a Tribunal hearing which inevitably has adversarial elements to it.
2.4 During the Judicial Conference on 20th October 2003, a number of claimant counsel sought assurances or undertakings from the Crown designed to preserve their clients’ position in relation to the Tribunal hearing. These matters have been considered in conjunction with the Tribunal’s proposed timeframes for a hearing.
2.5 The Crown understands the wish of the Tribunal and claimants to obtain some certainty in respect of the scheduling of a hearing prior to completion of the policy development process. The Crown cannot, however, agree to a situation where the policy development process itself becomes predicated upon arrangements for an urgent Tribunal hearing.
3. The Crown’s indicative timetable for completion of the policy development process is December this year, with likely introduction of legislation in late February or March 2004 for passage during the year. The Bill will be referred to a Select Committee and it is expected that there will be extensive deliberation on the Bill through the Select Committee process. This timetable is predicated on an assumption that proceedings in the Maori Land Court or Maori Appellate Court, which could possibly lead to the issue of further private titles in the foreshore and seabed, will be adjourned while the policy and legislative process is underway. Subject to that caveat, the Crown is prepared to commit not to introduce a bill before 23 February with the first reading to follow on 26 February at the earliest.
4. The Crown proposes to make application for an adjournment, initially in the Maori Appellate Court, in respect of the proceedings referred back to that Court by the Court of Appeal. The Crown wishes to have further discussion with the parties to that proceeding about the terms of a possible joint application.
5. While it remains possible to have an urgent hearing within these estimated timeframes, the Crown is unable to guarantee to the Tribunal a period of six weeks from the determination of the final policy position to the start of any hearing. It is unlikely on present estimates that the Crown would be prepared to wait a further two months from the conclusion of a hearing for receipt of a Tribunal report before introducing legislation.
6. The clear view of many Maori (and others) was that the Crown ought to take more time to develop its foreshore and seabed policy. These views were influential in the decision to continue engagement. In addition to further dialogue with Maori, the Crown also wishes to engage further with other interested parties and organisations in light of the extensive and considered submissions received.
7. It is acknowledged that there are links between this policy process and ongoing work on Marine Reserves and Oceans policy. More time to address these linkages would also be beneficial. The Crown views the Aquaculture reforms differently and considers there is a need to try and advance that policy in conjunction with, or if necessary, ahead, of the foreshore and seabed policy proposals.
8. The Crown does not wish to prejudice the right of claimants to have their claims heard before the Tribunal. It is the Crown’s preference, however, to focus upon the opportunities for further engagement and dialogue, and then, at the conclusion of that process, reassess the timing and scope of any Tribunal inquiry.
9. The Crown will use best endeavours to cooperate with claimants and the Tribunal to facilitate an urgent hearing if that is what the claimants want following confirmation of the Crown’s policy. If a hearing is to proceed, it is hoped that the issues may be refined as a result of further dialogue in the meantime.
10. On the basis of the indicative timetable set out at paragraph 3 above, the Crown puts forward the following proposals for the consideration of the Tribunal and the parties:
10.1 The Tribunal and the parties proceed now with research and consideration of Issue 1 of the Tribunal’s confirmed list of Issues. Issue 1 is:
“Generally, and not in relation to any particular group, what are the Maori interests in the foreshore and seabed?”
10.2 The Crown would value the Tribunal’s view on this issue if the Tribunal feels able to consider and report as soon as possible, and in any event prior to the expected introduction of legislation in February 2004. In the Crown’s view, consideration of this issue need not await confirmation of the Crown’s policy position, presently expected in December.
10.3 Once the Crown has confirmed and announced its policy proposals, claimants may then wish to refer the policy, or aspects of it, to the Tribunal for an urgent hearing. Assuming the policy was announced in December, it may be possible to hold an urgent hearing in January 2004, with the Tribunal to report sometime in the first half of February 2004.
10.4 It is the Crown’s view that any inquiry in such circumstances would have to be narrowly focused on the issues of most immediate relevance. In terms of the current confirmed list of issues, the Crown considers that Issue 4 is likely to embody the key issues. The precise framing of the issue would need to be considered once the Crown policy has been announced. It is acknowledged that the Tribunal would need to consider the subsidiary issue of whether prejudice to Maori arose as a result of the policy.
10.5 These are matters that could be discussed at a further Judicial Conference.

DATED at Wellington this 23rd day of October 2003.

____________________________
Michael Doogan
Crown Counsel

To: Registrar, Waitangi Tribunal

And: Claimant Counsel

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