E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-9347 Volume 9 Number 3 (September 2002) Copyright E Law and author File: williams93.txt ftp://law.murdoch.edu.au/pub/elaw-issues/v9n3/williams93.txt http://www.murdoch.edu.au/elaw/issues/v9n3/williams93.html ________________________________________________________________________ Honouring the Treaty of Waitangi – Are the Parties Measuring Up? Dr David Williams University of Auckland School of Law Note: These remarks were originally prepared for a panel discussion at the 4th New Zealand Public Law Forum, Wellington, 16-17 April 2002. The paper was revised for presentation to an Australian audience at ALTA 2002, Murdoch University, Perth, 29 September-2 October 2002. It has now been revised for publication and references have been added. Contents * Introduction * Government Responses to Treaty Issues * Conclusion * Notes Introduction 1. My starting point is that if we could begin again in 1975 (when the Treaty of Waitangi Act 1975 first established the Waitangi Tribunal), then the most appropriate option for the future of Aotearoa New Zealand would have been the establishment of an historical truth and reconciliation process. The specifics of apartheid in South Africa's recent history are very different from the colonisation of New Zealand beginning in 1840. However the idea of retrospectively examining the impact of British and settler state policies in New Zealand on the indigenous Maori of Aotearoa has the potential to enable peoples to come to terms with our history and to re-assess the power relationships between the peoples of our land. If such a process had first examined in general terms the adverse impacts on Maori of laws and Crown policies implemented in breach of the guarantees to Maori contained in the Treaty of Waitangi signed in 1840, it would have been appropriate then to devise a framework for the settlement of particular claims of tribal groups. 2. There was no forethought about how to handle historic grievances when the Waitangi Tribunal was established in 1975 nor was there any public consultation between the Crown and Maori leadership concerning the jurisdiction of the Tribunal. Rather, the policies fashioned in an ad hoc pragmatic manner over the last quarter century have one major flaw, above all else - policies to settle Treaty of Waitangi claims have been devised by the Crown alone. Maori input into settlement policies has usually been by way of ex post facto "consultation" or reactive litigation when already announced government policies have failed to take proper account of Maori interests. The Waitangi Tribunal process has also been bedeviled by Parliament's decision in 1975 to permit 'any Maori' individual to lodge a claim. This has made it very difficult to align a Treaty settlement process today with the collective nature of the tino rangatiratanga [full authority] guaranteed to Maori in 1840 and the fact that the compact was originally between collective entities - the Crown on the one hand and hapu [tribal] Maori social formations on the other hand. 3. A brief overview of the Government's many changes of direction in recent years shows that generally Crown policies have been formulated in response to political events of the day. There has been a lack of a clear sense of the long-term goals being sought or an understanding of the totality of colonial history and its impact on Maori. Indeed there was a profound ignorance in official circles of Maori understandings of colonial history prior to the seminal reports of the Waitangi Tribunal released in the 1980s.[1] I will focus on the last quarter century when Treaty issues have received serious deliberation in governmental circles. Prior to that and for most of our brief history since the entrenchment of settler political power following New Zealand wars from 1860 to 187[2] the Treaty did not feature at all in national politics or in laws. Indeed the legal orthodoxy of Wi Parata v Bishop of Wellington (1877) was that 'the pact known as the "Treaty of Waitangi" ... must be regarded as a simple nullity.'2 That case was cited by the Court of Appeal without disapproval as late as 1963.[3] Government Responses to Treaty Issues 4. In the early 1970s Government policy was forced to respond to the early manifestations of Maori protest - petitions to promote the Maori language and political demonstrations organised by Nga Tamatoa [The young warriors] and the Waitangi Action Committee.[4] The usual response, though, was an affirmation that New Zealand was the most happy multiracial society in the world. There was no need at all to focus on the past and, anyway, Maori protests were largely the product of European 'stirrers' and did not represent a genuine grievance. 5. Matiu Rata, MP for Northern Maori and Minister of Maori Affairs in the third Labour Government from 1972-197[5] did prompt debate aimed at the establishment of a Waitangi Tribunal and what jurisdiction should be conferred on it. Unfortunately almost all this debate took place within the Labour caucus. Rata argued for a jurisdiction to report and make recommendations on Maori grievances extending back to 1900. This would enable many historical grievances to be looked at without opening the cans of worms associated with 19th century land confiscation laws and the early land 'purchase' transactions.5 Cabinet and caucus, however, were willing only to give the Tribunal a prospective jurisdiction to inquire into Maori grievances arising after the Act came into force in 197[6] 6. At the end of 1975 the National Government returned to power. It marginalised Maori issues and focussed on social welfare and housing programmes. It resolutely refused to address grievances from the past, preferred to promote multi-culturalism, rejected Treaty-based arguments for biculturalism and reacted defensively when faced with Maori protests on Waitangi Day every year and on other occasions. 7. There was very impressive public support for the Maori leadership that initiated a Hikoi ki Waitangi [Walk to Waitangi, from the Waikato] early in 1984.6 This helped to refocus thinking on Treaty policy in the opposition Labour caucus, but before policy formation was completed a snap election in mid 1984 put Labour into power. Early in the term of this fourth Labour Government there were Government initiatives on Treaty policies. The Waitangi Tribunal was at last granted retrospective jurisdiction to inquire into and make recommendations on Maori grievances right back to 1840 (though the right of any individual Maori to put in a claim was not amended).[7] A White Paper proposed the inclusion of the Treaty in a Bill of Rights with the status of supreme law superior to ordinary legislation.[8] 8. Generally, however, the Government's development of Treaty policy happened as an after-thought and was usually prompted by litigation induced crises. For example, what became section [9] requiring the Crown not to 'act in a manner that is inconsistent with the principles of the Treaty of Waitangi' was drafted in great urgency and inserted into the State-Owned Enterprises Bill in 1986 only at the third reading stage. This followed a Waitangi Tribunal interim report that criticised the lack of provision for Maori claimants in the Government's scheme for corporatisation of Crown assets. The Tribunal's jurisdiction covered Maori claims against the Crown alone and the power to investigate historic claims had come into force in January 1986. Yet before the year was out, and long before most Maori had been given a reasonable opportunity to research and prepare claims, the Government was now proposing to transfer huge areas of Crown land, subject to actual or potential claims, to non-Crown corporatised entities.9 9. The Treaty of Waitangi (State Enterprises) Act 1988, with a number of statutory mechanisms to protect the interests of Maori claimants, was developed in negotiation with Maori litigants only after the Court of Appeal shocked the Government with its findings for the New Zealand Maori Council in the SOE Lands Case 1987.[10] The full bench of Court of Appeal judges held that, pursuant to section 9 of the State-Owned Enterprises Act 1986, there had to be specific safeguards for Maori claimant interests before any Crown assets could be transferred to a State-owned Enterprise. It is well documented that the government of the day had not intended section 9 to be a paramount provision in the Act.[11] The Court of Appeal decided however that it could not read down the broad words of the section as Parliament must have intended its words to have some meaning and effect. 10. The Crown Forestry Rental Trust, which ironically is now the major source of funding for research to assist Maori in pursuing their claims against the Crown, was created in 1989. This came about only after another decision by the Court of Appeal found the Government to be in breach of its section 9 statutory obligations to Maori. The Government's proposed sale of Crown forestry assets had been designed to avoid the implications of the 1987 SOE Lands decision, but the Court of Appeal allowed the Maori litigants to invoke the leave reserved to re-apply and again found in their favour.[12] Corporatisation of the coal industry also involved an attempt to circumvent section 9 by the Crown's reliance on the argument that mining rights were not interests in land. This argument did not convince the Court of Appeal.[13] 11. Whilst there was a very clear commitment by the fourth Labour Government in the late 1980s to economic policies of corporatisation (and then privatisation) of state assets, no attempt was made to evolve a coherent Treaty policy until the Crown Principles on the Treaty were issued in 1989.[14] Unfortunately, however, this policy was developed by the newly created Treaty of Waitangi Policy Unit as a unilateral statement of Crown policy. There was no invitation to Maori interests to dialogue with the Crown in formulating those Principles. 12. Ad hoc Treaty policy continued in the 1990s with National or National-led governments. Railways surplus lands were to be disposed of, so the Crown/Maori Congress Joint Working Party was established. This was a bilateral body but its task was limited to looking at railway land settlements as 'on account settlements' of Treaty of Waitangi claims.[15] 13. Cabinet made a decision about a new comprehensive Treaty settlements policy for historic land claims on 21 September 1992, but no-one outside Crown departments knew about it until late 1994 when the take it or leave it 'fiscal envelope' proposals for the settlement of Treaty of Waitangi claims were announced. The sum of $1 billion would be set aside over a 10 year period to cover redress in cash or in the value of resources to be returned to Maori as full and final settlement for all historical grievances.[16] The proposed policy was emphatically rejected by the pan-tribal hui [meeting] convened by the central North Island tribe, Ngati Tuwharetoa, at Hirangi in 1995.[17] Thirteen regional 'consultation' hui organised by the Government followed and in every case the rejections of the fiscal envelope proposal were just as emphatic. Yet, with a very few minor amendments, this was the only policy that Government was prepared to implement. This was spelled out for the public in a monograph written by the Minister in Charge of Treaty of Waitangi Negotiations, Douglas Graham.[18] 14. Thus, despite the vigorous Maori opposition, the Crown proposals became Crown policy and in substance they remain the policy to this day. The New Zealand First Party when in coalition with National from 1996, claimed credit for the removal of the fixed fiscal cap for the settlement envelope. The Labour/Alliance coalition government did a bit of rewording in July 2000 to move from the fixed fiscal envelope concept to 'ensuring there is a reasonable and sufficient provision for the settlement of Treaty claims'.[19] But, bedded in by the terms of deeds to settle the major claims of the Waikato Tainui tribes and the South Island Ngai Tahu tribe, redress quantum benchmarks have been established for the assessment of offers that might be made to all other claimant groups willing to negotiate directly with the Crown. The unilateral policy of the Crown as imposed in 1995 essentially remains in place to this day. 15. So we have in force a Treaty settlement policy that has a very narrow focus on historic land grievances - though with the Government's arbitrary and retrospective inclusion of the 1992 fisheries settlement quantum into the fiscal envelope sum for all Treaty settlements.[20] The Office of Treaty Settlements - a stand alone Government Department that replaced the Treaty of Waitangi Policy Unit in the early 1990s - has a checklist of items to assess the redress quantum to be offered to each large natural grouping of Maori claimants: - proportion of land lost since 1840; - current population of claimant community; and - the means of land loss.[21] 16. It is apparent that settlement of claims concerning 'raupatu' - legislative confiscation of land as in the Waikato region - has the highest priority for the Government in terms of assessing the means of land loss; then claims about early Crown purchasing policies - such as the Ngai Tahu purchases in the South Island; then any other reasons for land loss that the Crown is partly responsible for. The current preference of Office of Treaty Settlements for direct negotiations bears an unfortunate resemblance to the work of the Chief Native Land Purchase Officer, Donald McLean, in 'purchasing' of contested lands already settled by New Zealand Company settlers in regions of the lower North Island and upper South Island during the 1850s. The policy parameters are non-negotiable. Claimants may take what is on offer or reject it, but either way the Crown will control the outcomes in resource allocation terms.[22] 17. In 1999 the Crown finally accepted the arguments of many claimants that the Native Land Acts and the Native Land Court operations were a land loss-causing Treaty breach issue. Nevertheless, no provision to recognise this by an increase in the redress available from the settlement envelope was forthcoming.[23] 18. The pan-tribal gathering held at Hirangi in January 1995, in addition to rejecting the fiscal envelope, put forward a wide range of constitutional reform issues that needed to be looked at as well as historic land claim settlements. Participants 'discounted the possibility of durable Treaty settlements without fresh constitutional guarantees and a final break with colonial law and processes.'[24] Governments since then have firmly rejected attempts by Maori leaders and organizations to engage in constitutional reform discussions. Conclusion 19. My focus in this paper has been on criticism of unilateral and ad hoc decision-making by the Crown. I have some questions for Maori claimants also though: - Why has so much effort been spent on lawyers and litigation - much of it, especially over commercial fisheries assets, intra-Maori litigation?[25] - What if all those resources had gone into capacity building so that Maori could meet the Crown as genuine negotiators rather than as supplicants? - Why is it that so many individuals put so much stake on having their own Wai number? 20. Each claim lodged with the Registrar of the Tribunal is allocated a Wai number. Government Departments and local territorial authorities, unfortunately, often give Tribunal registered claimants a status in consultation processes not necessarily accorded to traditional authority structures and representative Maori organisations. It almost seems as if a Wai number is a new item of property right to try to obtain privileged access to lawyers and to research funding. Very often large Maori gatherings, ostensibly dedicated to seeking 'kotahitanga' [unity] among claimants in a district preparing for a Waitangi tribunal inquiry, actually result in the filing of new overlapping claims, new applications for research funding and new applications for legal aid for lawyers. The inevitable result is more prolonged intra-Maori disputing about the Waitangi Tribunal process. 21. Even when the focus of Maori energy is on institutional capacity building in a region, it is not obvious to me why it is that lawyers come to the forefront of leadership. Often, but not always, they are Maori lawyers who take these roles, and there have been many Maori who have joined the legal profession in recent years. Yet it is neither obvious nor desirable, in my view, that the norms and values of the state legal system should prevail over Maori custom law and Maori dispute settlement procedures. Especially this must be so when the issue is how the Treaty of Waitangi is to be honoured in today's circumstances. 22. At this point, I am pessimistic that those on both Crown and Maori sides of the Treaty research and settlement relationships will be able to unlock themselves from the present ungenerous adversarial approach endemic in the Treaty settlement 'industry'. Will there ever be a genuine truth and reconciliation process to re-assess the colonial past and plan for a post-colonial future? I doubt it. We have gone on too long with unplanned decisions to deal with particular cases as they have arisen. Those who are deeply engaged in the processes would not enjoy the prospect of a fundamental re-assessment of why they do what they do. There is little pressure for a principled stand to be taken on how our colonial history impacts on current realities. A few efforts in that direction by Tariana Turia, a Maori woman who is an Associate Minister (outside Cabinet) in the present Government, have met with much public outrage and internal disciplining of her within the Labour Party.[26] 23. It seems more than likely that we will bumble along with the current processes. There will be anti-Treaty sniping from some quarters, especially during a general election campaign. Efforts will be made to bring a rapid end to the Treaty settlement process at the least possible cost to the public purse. Meanwhile, the under-resourced Waitangi Tribunal and the better-resourced Office of Treaty Settlements will continue to offer alternative modes for dealing with claims. Resources will continue to be spent on canvassing historical questions in the Waitangi Tribunal that the Crown really ought to agree with the claimants on. Time in Tribunal hearings will continue to be taken up with inter-tribal and intra-tribal disputes that have precious little to do with claims against the Crown. 24. At the end of the day, the Crown continues to control the processes and the outcomes for the settlement of Treaty of Waitangi claims. Is this something that Maori will be prepared to accept in the long term? Others will have to answer that question. Only time will tell. Notes [1] Waitangi Tribunal, Motunui-Waitara Report, Wai 6,1983; Kaituna River Report, Wai 4, 1984; Manukau Harbour Report, Wai 8, 1985; Te Reo Maori Report, Wai 11, 1986; Orakei Report, Wai 9, 1987. [2] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 78. See D V Williams, 'The Constitutional Status of the Treaty of Waitangi: An Historical Perspective', (1990) 14 NZULR 9, 14-16. [3] In re the Ninety Mile Beach [1963] NZLR 461, 467. [4] J Kelsey, Rolling Back The State, Wellington, Bridget Williams Books, 1993. [5] Rata to Williams, personal communication, Waitara, 1983. [6] See Te Runanga o Waitangi, He Korero Mo Waitangi, Ngaruawahia, 1985. [7] Treaty of Waitangi Amendment Act 1985. This Act also corrected some egregious errors in the Maori text of the Treaty as set out in the 1975 Act. [8] A Bill of Rights for New Zealand, A White Paper, Wellington, Government Printer, 1985. See Williams (1990), supra, 17. [The supreme law proposals were dropped before the enactment of the New Zealand Bill of Rights Act 1990 as ordinary un-entrenched legislation.] [9] The sequence of events is described in the judgment of Cooke P in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 651-654. [10] New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641. [11] NZ Law Commission, Maori Custom and Values in New Zealand Law,NZLC Study Paper No 9, Wellington, 2001, para 352. [12] New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142. [13] Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513. [14] G Palmer, 'The Treaty of Waitangi - principles for Crown action', (1989) 19 VUWLR 335; Office of Treaty Settlements, Healing the Past, Building A Future, Wellington, 1999, 19. [15] New Zealand Railways Corporation Restructuring Act 1990, ss 38-43. [16] Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims (2 vols - a bilingual Summary and Detailed Proposals), Wellington, 1994. [17] 'A Report concerning the Government's Proposals for the Settlement of Treaty of Waitangi Claims and Related Constitutional Matters based on the proceedings of a hui held at Hirangi Marae, Turangi, 29/1/95', unpublished paper. [18] D Graham, Trick or Treaty?, Wellington, Institute of Policy Studies, 1997 [19] M Wilson, 'New principles to guide the settlement of historical Treaty claims', press release 20/7/2000. [20] Office of Treaty Settlements, Healing the Past, Building A Future, Wellington, 1999, 20-21. [21] Office of Treaty Settlements, Treaty of Waitangi Claims: Direct Negotiations Process: An Introduction, Wellington, 1999. [22] D V Williams, 'The Crown and Ngati Tama ki Te Tau Ihu: An Historical Overview Report', Wai 723/Wai 785, February 2000. [23] D V Williams, 'Te Kooti tango whenua': The Native Land Court 1864-1909, Wellington, Huia, 1999, 30-32. [24] 'A Report concerning the Government's Proposals for the Settlement of Treaty of Waitangi Claims and Related Constitutional Matters based on the proceedings of a hui held at Hirangi Marae, Turangi, 29/1/95', para 7.3. [25] See, for example, Te Runanga o Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301 (CA); Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513 (PC); Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 (HC & CA), [2002] 2 NZLR 17 (PC). [26] T Turia, 'Speech to the 9th annual Australasian Society for Traumatic Stress Studies', Auckland, 9 March 2002.