The Claimant’s Position Sample Clauses

The Claimant’s Position. The Claimant contends that Clause 20.6 only makes arbitration mandatory if there is a Dispute Adjudication Board (“DAB”) who has been unable to amicably settle a dispute between the parties and has made some decision that has not been made final. However, no DAB was ever appointed. The Claimant contends that clause 20.8 of FIDIC applies. Clause 20.8(b) in turn does not compel or obligate the parties to arbitrate.

The Claimant’s Position. The claimants invited us to reconsider the applicability of the approach taken in Ko Aotearoa Tēnei (Wai 262). They did so by adopting Xxxxxxxxx Xxxx Xxxxxx’s analysis of Tiriti/Treaty jurisprudence, which argues that the Court of Appeal’s decision in New Zealand Maori Council v Attorney-General (the Lands case) interpreted the ‘principles’ of te Tiriti/the Treaty to mean that the Crown acquired sovereignty, with the right to govern and make law and policy, and in doing accepted a responsibility actively to protect Māori interests so far as rea- sonably practicable, make informed decisions about the implications for Māori and consult with Māori when it required further information, and to provide a process to remedy past breaches.17 Xxxxxxxxx Xxxxxx argued that, following the Lands case, the Waitangi Tribunal ‘accommodated itself ’ to this interpretation of the Tiriti/Treaty principles and, in so doing: ‘reconstructed the constitutional relationship between the Crown and Iwi and Hapu under Te Tiriti through the construct of “principles” that over- state the authority conferred through kawanatanga and deny the essence of tino rangatiratanga’.18 For the claimants, the conclusion of the Stage One Te Raki report represents an important departure from this jurisprudence. They submitted that the Tribunal set out the ‘challenge of re-conceptualising the Tiriti principles’ in the following terms: ‘Given we conclude that Māori did not cede their sovereignty through te Tiriti, what implications arise for the principles of the treaty identified over the years by both this Tribunal and the courts?’19

The Claimant’s Position. The claimants say that the first step in addressing their concerns with the tppa / cptpp e-commerce provisions is ‘to understand the conceptualisation of the digi- tal ecosystem, including data, in te ao Māori according to tikanga Māori’.25 They argue that within te ao Māori, data is a taonga and is therefore subject to active protection under article 2 of te Tiriti/the Treaty. The claimants also acknowledge that there are ongoing debates within te ao Māori, as well as discussions with vari- ous Crown agencies, about the boundaries of what counts as ‘Māori data’ and how it should be governed.26 The claimants brought evidence from four witnesses to demonstrate the Māori conceptualisation of data and the digital ecosystem: ӹ Xxxx Xxxxxx, a named claimant and member of Te Taumata;27 ӹ Xxxxxxxxxx Xxxxxx, a doctoral student at Te Whare Wānanga o Awanuiārangi studying data and tikanga;28 ӹ Potaua Biasiny-Tule, member of the Digital Economy and Digital Inclusion Ministerial Taskforce, co-founder of education initiatives Digital Natives Academy and Digital Basecamp, and chief executive of Māori news website XxxxxxxXxxxxx.xxx;29 and 25. Submission 3.3.57, p 2 at [3] 26. Submission 3.3.61, p 11 at [26.2]; submission 3.3.60, p 26 at [6.6]; submission 3.3.63, pp 26–27 at [1.62]–[1.64] 27. Document b24