Gene tech Bill fails to uphold rights

Video: Presentation to Health Select Committee on Gene Technology Bill

mode Te Rūnanga o Ngāi Tahu Kaiwhakahaere Justin Tipa and Upoko Edward Ellison present to the Select Committee on the BIll.

Transcript

Te Rūnanga o Ngāi Tahu Kaiwhakahaere Justin Tipa

The kaitiaki relationship is now a firmly established feature of New Zealand law and policy, particularly in gene technology, as evidenced by its integration into this Bill.

This mode of relating to the natural world is a key element of rangatiratanga, which links it to, and grounds it in, rights enshrined in Te Tiriti o Waitangi and the Ngāi Tahu Claims Settlement Act 1998.

We represent Ngāi Tahu today to speak in opposition to the Bill before us, because it fails to protect and uphold those rights.

The Crown is obliged to actively protect the rangatiratanga rights of Ngāi Tahu, including where scientific research and gene technology have the potential to impact them.

This must be a core tenet of any interpretation of the Principles of the Treaty in the context of this Bill.

Active protection means comprehensive, consistent protection.

It cannot mean protection sometimes or protection when it’s convenient.

Our view is that the proposed Treaty Principles Clause at Clause 4 of this Bill fails that test.

Ngāi Tahu is concerned that present political polarisation regarding the issue of Treaty Principles is distorting our perception of what constitutes good and functional law in this country.

There are good reasons for preferring a general Treaty Principles Clause—as appears in various other pieces of legislation, including the HSNO Act—over a prescriptive clause.

A general clause embeds Treaty Principles as a lens for interpreting and applying the legislation, preventing ad hoc or inconsistent decisions about the relevance of rangatiratanga rights.

This is critical for a subject as technical and multi-layered as Gene Technology.

If the legislation does not make it clear to decision-makers and stakeholders that they have an obligation to operate in accordance with Treaty Principles, it will simply become an optional add-on.

Some actors and decision-makers will, some won’t, and inconsistency and imbalance will be endemic to the system.

This inconsistency and imbalance will breed discontent and distrust, and, in all likelihood, become a stumbling block for the Bill’s intended purpose.

And the proposed Māori Advisory Committee is no remedy to this.

The committee’s role is to advise—it can weigh in on risks or cultural impacts, but it doesn’t exercise any decision-making power.

It’s also a reactive mechanism, not a proactive one. The committee is relevant after proposals arrive at the table. It has no bearing on whether actors operating under the legislation are reliably required to factor in Treaty Principle considerations.

Currently, there is no mechanism in the Bill that makes the rangatiratanga rights of Iwi Māori a constant. Instead, they are boiled down to non-binding advice from an advisory committee that has limited scope for input and that, in actuality, neither holds those rights nor has a clear mandate to speak for them.  

Which leads me to another crucial point:

A Māori Advisory Committee can never be a replacement for direct engagement with tangata whenua at place.

The Ngāi Tahu Claims Settlement Act 1998 confirms that ‘the Crown recognises Ngāi Tahu as the tāngata whenua of, and as holding rangatiratanga within, the Takiwā of Ngāi Tahu Whānui.’

Read alongside the Te Rūnanga o Ngāi Tahu Act 1996, there can be no doubt about the context of the Treaty relationship within the Ngāi Tahu Takiwā.

Ngāi Tahu speaks for Ngāi Tahu. No one else.

If, in the interest of improving its ability to carry out its Treaty responsibilities, the Crown wishes to appoint an advisory committee, that’s fine.

And there is already such a committee—Ngā Kaihautū Tikanga Taiao—within the EPA.

But it’s not appropriate to do so in a context that implies this, in and of itself, discharges the Crown’s obligation to act in accordance with the Principles of the Treaty.

Because it doesn’t.  

So, in summary, our position is that Clause 4 of this Bill is an inadequate attempt at moving from a general Treaty Principles clause to a prescriptive.

I’ll now hand over to Upoko Edward Ellison to expand on this point.

Upoko Edward Ellison

From a Treaty Settlement perspective, Treaty Principles clauses carry profound significance.

Treaty settlement legislation does not stand alone. The Ngāi Tahu Claims Settlement Act is shaped and framed by a range of other legislation, alongside established interpretations of that legislation.

The HSNO Act came into effect in 1996, and its reference to the principles of the Treaty of Waitangi has, since then, operated alongside and supported the cultural redress elements of the Ngāi Tahu Deed of Settlement, which was signed a year later in 1997.

Extreme care needs to be taken to ensure that the Crown does not inadvertently enact legislation that undermines the foundation and durability of our historical Treaty Settlement.

Ngāi Tahu gave a similar warning to the Justice Committee last month during our oral submission on the Principles of the Treaty of Waitangi Bill.

I want to make it clear that, while that Bill is going to be put to rest, this does not mean we can afford to start recklessly changing clauses in other individual pieces of legislation.

We should not allow the present volatility of our political climate to run roughshod over a careful legislative and judicial evolution like the Treaty Principles. These principles have been instrumental in enhancing equality of opportunity in this nation and in assisting us to address and overcome historical grievances.     

If the Coalition Government is intent on trying to make the move from general Treaty Principle Clauses to prescriptive, much more thinking needs to be done.

Until that thinking has occurred—and credible solutions have been socialized and discussed with us—our position is that any legislation replacing key parts of   HSNO Act must impose Treaty of Waitangi duties on those exercising its powers or functions that are at least as strong as those in the HSNO Act.

This includes the requirement under Section 6 of the HSNO Act to take into account the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, valued flora and fauna, and other taonga.

In closing, without a general Treaty Principles Clause, new, more enabling conditions—such as low-risk exemptions, a single decision-maker, pre-assessed licenses, liability protections, and the adoption of overseas approvals—are simply new methods of sidelining the legitimate rights and interests of Māori relating to the use and application of gene technology.   

It’s disheartening that, after three decades of discourse with ERMA and the EPA, the science sector, and industry over the HSNO Act, Kāi Tahu and Iwi Māori find ourselves here.

With that, we close our presentation.