The Crown’s position. The Crown argued that the plant variety rights review had been underway for three years and had been substantially progressed when Xx Xxx Tawhiti was announced and that the review had already been delayed for almost 30 years Further, the Crown highlighted that Xx Xxx Tawhiti has no confirmed process or timeline in place as yet Nor did the announcement of Xx Xxx Tawhiti create an obligation on the Crown’s part to further delay the plant variety rights review 100 The Crown argued that, if the introduction of the plant variety rights legislation were to wait for Xx Xxx Tawhiti consultation and response to begin, it would cause more prejudice to Māori because the current regime was not Tiriti/Treaty consist- ent and Māori interests were not directly provided for in the current Act 101 The Crown submitted that, the sooner the legislation is passed, the less opportunity there would be for further breaches in this regard 102 It pointed out that the plant variety rights review actually provided the impetus for initiating Xx Xxx Tawhiti 103 Further, the Crown submitted that the reforms arising from the current review would not be set in stone and that there was nothing to stop it updating the legis- lation if Xx Xxx Tawhiti, or any other consultation process, were to come to the view that the Treaty of Waitangi required a different regime 104 The Crown argued that, while opportunities for further improvements through Xx Xxx Tawhiti would 96. Submission 3.3.44, p 17 97. Submission 3.3.47(a), p 49; submission 3.3.44, p 26; submission 3.3.49, p 6 98. Submission 3.3.44, p 14 99. Submission 3.3.47(a), p 33 100. Submission 3.3.48, p 13 101. Ibid, p 14 102. Ibid, p 26 103. Ibid, p 4 104. Ibid, p 26
The Crown’s position. In response, the Crown has consistently highlighted the relatively limited scope of the Te Raki inquiry’s findings on sovereignty.23 In the letter of transmittal, the presiding officer of that inquiry said: I reiterate that our report concerns the meaning and effect of the treaty in February 1840. It does not contain findings in respect of claims, and nor does it make recom- mendations. It makes no conclusions about the sovereignty the Crown exercises today. Nor does it say anything about how the treaty relationship should operate in a modern context.24 The Crown argued the Te Raki Stage One report concluded that ‘there was clarity and understanding between the parties to te Tiriti/the Treaty about rela- tive roles for international affairs’.25 At the same time, the Crown accepted that ‘its exercise of this international affairs function is paired with responsibilities to understand and actively protect Te Tiriti/the Treaty interests of Māori as it does so – both procedurally and substantively’.26 In response to Xxxxxxxxx Xxxxxx’x argument that Tribunal jurisprudence falls into ‘three phases’, the Crown argues that Tribunal jurisprudence has been consistent across time, notwithstanding the influence of the Lands case, and more recently the Te Raki Stage One report.27 Crown counsel point to relevant Tribunal findings that describe kāwanatanga as ‘less than a cession of sovereignty’ and of tino ranga- tiratanga as requiring the Crown ‘to acknowledge Māori control (or unqualified chieftainship) over their tikanga, resources, and people to allow Māori to manage their own affairs in a way that aligns with their customs and values’.28 20. Waitangi Tribunal, He Whakaputanga me te Tiriti, p 527 21. Submission 3.3.63, p 40 at [5.16] 22. Ibid
