Browsing by Author "Love, Toni"

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Open Access
Questions Concerning Consultation with Māori: What is required from a Treaty perspective?
(Te Herenga Waka—Victoria University of Wellington, 2016) Love, Toni
The New Zealand case law and Waitangi Tribunal jurisprudence have developed the meaning of consultation in the Treaty context. Recently, this has been informed by UNDRIP. Overall, New Zealand has always had substantive consultation obligations in certain circumstances but the duty has been interpreted too narrowly. Purely procedural consultation in some situations is insufficient to discharge the Crown’s duty to actively protect Māori or to discharge their duty of partnership. The level of consultation required is directly correlated to the taonga (interest) at stake, and interests in land are sufficient to trigger a substantive duty. The fears espoused in the SOE case have impeded the development of a substantive duty; however, the Canadian duty to accommodate and their spectrum analysis (shared by the Waitangi Tribunal) demonstrates that fear of creating an onerous duty is inflated and consultation can be developed in a way that balances the partnership between Māori and the Crown, as well as allowing a duly elected government to govern as it sees fit.
Open Access
Te Ture Whenua Māori reform - When poor problem definition leads to illegitimate policy
(Te Herenga Waka—Victoria University of Wellington, 2017) Love, Toni
Achieving policy legitimacy is incredibly challenging. One key element includes input legitimacy which includes the early review stages that seek to define the problem the resulting policy will address. The recent proposed reform of the Te Ture Whenua Māori Act 1993 demonstrates the importance of problem definition in achieving policy legitimacy. In order to effectively define the problem in this case, an assessment of the Act was required to determine whether the regulatory framework and the Māori Land Court were inhibiting utilisation of Māori land. The Review Panel tasked with undertaking the review of the 1993 Act chose to rely on current research to design a policy that sought to address what it perceived as the barriers to utilisation of land, rather than determine whether the current framework was in fact inhibitory. This choice was the ultimate error and resulted in a policy perceived as illegitimate overall. The Panel effectively ignored history, relied disproportionately on poor quality evidence, and used this evidence incorrectly.