This paper is an introduction to the Law relating to Indigenous Land Rights in New Zealand. An historical background is given so that the particular way in which Māori Land has been affected by colonization is outlined. The history will outline the changing social conditions, the effect of the New Zealand Wars and the confiscation and illegal seizure of land. The role of the Treaty of Waitangi as the basis for the partnership between Māori and European and the marginalisation and subsequent revival of the Treaty as the basis for recognition for Land Claims will be discussed. The role of the Māori Land Court, the Waitangi Tribunal and the leading Judicial Review cases establishing a legal and constitutional role as Treaty partners will complete this introduction.
Historical background
To understand indigenous land law in New Zealand it is necessary to examine the history of the indigenous people, a Polynesian race called the Māori, and of the colonisers, the British and others. The Māori are the original settlers of New Zealand. The time of settlement is uncertain, but historically has been generally accepted as between 950 and 1130 AD. Some have theorized that the original home of the Polynesian peoples was Taiwan and the paper may have some themes which are of relevance to the indigenous people of Taiwan. The Māori people settled New Zealand in successive waves, and by the time of the first European explorers reached New Zealand, had established a sophisticated tribal based society.
This society had a structure based on relationships between different whanau groups, who collectively formed iwi. The leadership was based partly on descent but ultimately ability and leadership together with fighting ability were also important. Trade in the modern sense was not significant, although different whanau, and iwi did have complex exchanges of gifts. These exchanges were to be significant in the subsequent dealings with Europeans, because they reflected on the Māori perception of the initial trade and colonisation efforts. To the Māori the exchange of gifts was to establish relationships rather than to enrich either party. The concept of ownership was different from that of Europeans, which was also the cause of subsequent difficulties. For example, a significant weapon such as a greenstone (jade) mere which had achieved mana through the use in battle, would be in the possession of a warrior, who had earned the right to use the weapon. However, the ownership was never with that warrior, but with his iwi or whanau. When gifts were exchanged they were between the groups rather than to individuals. A chief or rangatira would accept the gifts and later divide the presents among the whanau. These obligations lasted many generations.
Captain James Cook was the most important European visitor in the 18th century. He visited New Zealand three times, and among other things, introduced the pig, which quickly became important to the Māori, as there were no other large mammals suitable for food. His reports of visits, and the official reports quickly gathered interest in New Zealand. At first, the purpose was to hunt seals and whales. As the sealers and whalers came into contact with the Māori trade relationships arose together with the first intermarriage. The trade also included modern European weapons such as the musket. The significance was that the tribes, who were first to obtain modern weapons immediately a significant strategic advantage over others. This set off significant intertribal warfare, which also had later significance in dealing with land issues.
Land, like other possessions was regarded as the collective right of the whanau and iwi to occupy the land and cultivate the soil, take the produce and the food present such as seafood seals birds or pigs. The expression te ahi kaa was and still is used to explain the ownership of land. This expressed as the right of whanau and iwi, who had their home fires burning on that land, to occupy and use the land.
Colonisation was not really significant until the 1830-1840 period and followed the colonisation of Australia. By 1830 the Māori population was about 100,000. Trade with Europeans had become more important in the north and the first major town established was at Kororareka (now known as Russell), located at the Bay of Islands in the territory of the Ngā Puhi people. The trade had expanded to include timber, flax and provisioning the many whaling ships which stopped off on the way to whaling grounds. New Zealand was a distant and wild frontier, with diverse peoples in the new town. The whaling trade brought men of many nationalities to New Zealand, not only British but also French and Americans, and many Māori themselves became involved in the trade, both working on the ships and supplying whaling vessels with pork, potatoes and other commodities.
At the same time there was a great increase in missionary activity which brought with it the concepts of a written language for the Māori the concept of literacy. The Bible was translated into Māori and printed in New Zealand. This made written material more widely available and exposed Māori to radical new ideas. Combined with this, Māori traveled to Britain in 1820 and to Sydney in New South Wales, Australia more frequently. They became aware of the concepts of trade, commercial activity, and different systems of government. They also saw how other indigenous peoples were treated by Europeans and learned a healthy mistrust of the newcomers. This activity was accompanied by increased European contact, trade and settlement. Estimates for 1839 give 2000 European settlers in the country, 1400 of them in the North Island, with nearly 30 shore whaling stations dotted along the coast at that time. The European population had grown rapidly but it was still small compared with the Māori population by the end of the decade.
During this period the Māori people began a relationship with the British Crown. In 1820 a group of chiefs met with King George IV, and in 1831 a number of chiefs sought petitioned his successor King William IV asking for protection. This arose at least in part because from 1818, northern Māori had actively sought European weapons to equip them in devastating raids on Iwi further south. This cascaded and there was consequent pressure on other Iwi to purchase arms for themselves and to migrate to areas out of the conflicts. There were large movements of people through the 1830’s, which left a different pattern of occupation by 1840. There was still some tribal conflict for some time, but the population remained reasonably stable from then until the Land Wars.
During this period the British Government and the colony of New South Wales began to take more interest in New Zealand. The Colonial Office in London set the policy but the colonial governors of New South Wales had some input. Sydney had by the 1830s developed beyond the original penal colony established by Britain in the previous century, to become an active commercial center. The commercial interests had developed substantial trade with Māori and the missionaries often come through Sydney on their way to New Zealand. The authorities in New South Wales were interested in events in New Zealand and Māori often traveled to Sydney as part of ships crews or pursuing commercial interests (as well as military interests).
These contacts led to some difficulties between traders and Māori especially when Europeans became involved in tribal wars. The initial reaction was to appoint some missionaries and some Bay of Islands chiefs as Justices of the Peace, and then extending the authority of the New South Wales courts to New Zealand in some circumstances. The Government also supported the British missionary organizations especially when the French showed interest and sent Roman Catholic missionaries. It became apparent soon that an official presence in New Zealand was needed and James Busby was appointed as British "Resident", equivalent to a consular officer. He was not effective and lacked the trust of the Māori, the missionaries and ultimately the British government.
Māori society had its own systems of law, authority, and regulation. Busby was appointed to mould that system into something more familiar to the British government. He was told to persuade them to adopt British law and institutions and take the role of enforcement themselves.
During the 1830 to 1840 period there was also a growth in interest in colonization of New Zealand. In particular the Wakefield family became enthusiastic supporters of settlement and enlisted much popular support. They did so without possession or ownership of any land nor of any real knowledge of the Māori views of European settlers. While in general Māori were very keen to trade with Europeans and had no objection to intermarriage, they had no concept of the impact of the introduction of colonies on the scale proposed. The Wakefield set up the New Zealand Company and began to negotiate land purchases on a large scale. Some of the tactics came close to fraud in that the Company simply had no title to the proposed settlements. In a number of cases they purchased land from Māori who had no authority to sell, and no real intention of permitting possession. This pattern became more serious and was another behind the British steps to take more control. The New Zealand Company was not the only land dealer and others also followed.
As a result of the inadequacy of Busby and the pressure to buy land the position was compounded by a prospect that a French colony was to be founded in the South Island. The British government decided to make a move to negotiate a stronger form of government with the Māori population. Captain William Hobson was appointed to negotiate with the Māori and enter into an agreement as to the role of the British Crown. This was the basis for the Treaty of Waitangi, which is the founding document of New Zealand. He had instructions to deal fairly with the Māori, to appoint a Protector for their interests, to guarantee Māori title to land, and ensure that all Europeans bought land titles from the Crown by way of a Crown grant
When he arrived in New Zealand, Hobson proclaimed himself lieutenant governor and asserted the Crown's authority over British settlers in New Zealand. Using Busby and the missionaries he invited Northern chiefs to a meeting at Waitangi in the Bay of Islands. After discussions with the chiefs and others he drafted a document with the help of others and a copy was translated for the Māori. None of the draftsmen were lawyers which may explain the generalities rather than specific terms. As a further selling point Hobson promised that land purchased illegally would be returned. Eventually the Treaty was signed and as each signed or made a mark they shook hands with Hobson and said, "We are now one people" (te iwi tahi tatou).
Some historians have suggested that from a Māori understanding of the events of 1820 to 1840, the Treaty of Waitangi clearly becomes part of a negotiated relationship and not the beginning of European power and the end of Māori sovereignty. The European perspective was different but has changed since the initial signing. This perspective arose in part because of the translation issues.
Much of the history of indigenous land in New Zealand relates to the Treaty and the way in which it was interpreted. It is important to place the document and the historical perspective, so that the interpretation from each side is understood. I have included both the English and Māori versions of the Treaty as an illustration of the simple but important terms of the document which is attached. The Treaty is an exchange of promises. I discuss the different translations, using a modern guide prepared by an eminent Māori scholar Sir Hugh Kawharu.
One of the important differences is in the use of tino rangatiratanga (chieftainship) and kawanatanga, used for both "sovereign authority" and "civil government.” Tino rangatiratanga means more to Māori than mere possession of land. The chiefs associated kawanatanga with abstract, rather than concrete authority. This arose because the missionaries were influential among some of the chiefs. Some had converted to Christianity and learned to read and write using the Bible. The example used was the authority which the Roman civil authorities had in Israel compared with the religious authority of the Jewish leaders. This meant to the Māori that they would keep the land but that Queen Victoria would become a guardian of their land. The missionaries also promoted the advantages of British sovereignty but did not properly explain what British sovereignty really meant. They knew that the treaty would encourage settlement by Europeans but this was not explained to the Māori.
Lawyers always look at the precise meaning of a document. However the Treaty was regarded as a document establishing a relationship between the parties. The Māori chiefs expected that their status and mana would be upheld and that their land rights would be protected. The Crown was prepared to modify their views when expedient. At first the Treaty achieved the role of bringing the parties together in a partnership which included a recognition of each parties role. This came under stress however when the number of settlers increased and the new government of New Zealand became more sophisticated and concentrated on the needs of the colonists.
In 1852 the New Zealand Constitution Act 1852 led to the establishment of a parliament by and for the settlers and from which Māori were effectively excluded by property qualifications. This caused considerable anxiety among Māori, who advocated a number of ideas including calling their own Parliament and establishing a Māori King. Eventually a compromise as to Māori representation was reached with 4 parliamentary seats reserved for Māori
The 1860s was a disastrous decade for Māori. The settler-dominated government used a military solution to drive policy, not explicitly outlined, but clear from the results. This meant that the armed forces were the enforcement to compel land purchases, suppress any independence movements and seize land in the Waikato, Taranaki and other areas. Notwithstanding the decisions created by the use of military force, many Māori still felt they had an accord with the government, based on the Treaty. This is still the view of many Maori.
The colonial government also moved form the position as protector of the Maori to involvement in land purchases which favoured settler interests to the prejudice of Maori land rights..
Despite the view that the Treaty created a compact with the Crown, the Treaty itself had no legal status as an Act of Parliament or constitutional document. (New Zealand, like Great Britain, does not have a written constitution). As a result when Māori sought to use the Treaty to protect the rights reserved in the Treaty, they were met with a response from the Courts that the Treaty had no legal status and was ineffective in protection of those rights. This is discussed in the decision of Wi Parata v The Bishop of Wellington further in this paper. This became a political aim of Māori over this period until recent times because many thought the formal legal ratification of the Treaty could assist in using it as a tool to protect the reserved rights and restore the injustices its principles. This was not achieved until the Treaty of Waitangi Act 1975.1
The response to these issues came in two ways. The first was the establishment of a specialist land court to handle Māori land issues. This was ineffective in protecting Treaty rights, and it was not until the Waitangi Tribunal was established in 1975 that there was a real commitment to restoration of the treaty partnership.
The next part of this paper will deal with the development of the practice of Māori land law as a part of practice of law in New Zealand. This will cover the a brief description of the history of the Native Land Court, and the evolution towards the modern Māori Land Court, and the development of the Waitangi Tribunal and the modern Treaty claims. I will also outline some of the leading cases to illustrate the development of concepts of indigenous land rights over the last 30 years. There are two aspects to the practice of indigenous land law. In the Māori Land Court, the issues are the administration succession and use of Māori land. To some extent there are issues of alienation of Māori land, but of recent years the Court has been reluctant to permit land passing out of Māori ownership or control. The other part of the practice of indigenous New Zealand land law is the more recent area of claims made under the Treaty of Waitangi before the Waitangi Tribunal, a jurisdiction first set up pursuant to the Treaty of Waitangi Act 1975. This jurisdiction has also been supported by a number of leading decisions, largely taken by way of judicial review of official government decisions.
The Māori Land Court
Before the signing of the treaty land in New Zealand was owned by the iwi, hapu and whanau. There was no individual land title, which was a foreign concept. By virtue of the treaty this changed and the land became vested in the Crown unless a title could be established in the Māori Land Court. This was an import from Britain where all land is held in fee simple ultimately from the Crown. There is no concept of allodial land, which has no owner until first occupied. This fundamentally changed the nature of land ownership because it meant that any land not claimed by Māori was vested in the Crown. This was later to form a problem particularly in the South Island which was not extensively settled by Māori, and also depopulated by a number of wars in the early 19th century, leaving the way open for a number of dubious transactions which purported to take title against the interests of the Māori owners.
By introducing the British concept of individual title there was a conflict with the Māori collective ownership system and a golden opportunity to engage in 150 years of marginalisation of rights, outright fraud and exploitation of an economically disadvantaged group.
The Court was initially called the Native Land Court and established in 1862 and renamed the Māori Land Court since 1954. The history of the Court shows the changing role, first from rubber stamping sales of land through to the development of structures to assist in preserving land to the present where there is active assistance with management and retention of the land. The first judges were not always lawyers and the quality of appointment was sometimes mediocre. The object was to give effect to the Treaty but it rapidly became apparent that in reality a primary aim was to convert Māori land into an individual form of title, allowing ready sale to settlers. The individualised form of land title issued by the Court undermined tribal authority and allowed individual Māori to sell their interests piecemeal, making land easier to buy.
The role of the Court was to establish title to Māori land, as this was seen as part of the role of the Crown in “tidying” up what was seen as a system of ownership not conforming with British concepts of title to land. The custom of Māori was the basis for establishing the title, and the right to the title was proved by evidence of occupation, cultivation, and conquest and of the whakapapa or ancestry of the claimants.
The claimants were expected to trace their ancestry to a particular iwi, hapu and Whanau and usually at least three generations of occupation. A particular term "te ahi kaa" meaning, "to keep the home fires burning" is often used to describe the ties to the land. This meant that the claimants provided evidence of much family and tribal history. The records kept have since become an invaluable record of Māori history and are a unique resource. All this information was recorded in the Court's minute books.
The history recorded another more serious issue. From the time the Court was established to 1900 it is estimated that customary titles for about 13,000,000 acres of Māori land were replaced by titles derived from the Crown. Put in another way, land passed from customary ownership by iwi or hapu to individual members of the groups. This assisted those individuals to sell the land, and convert the title to a European title. This process was called alienation and accounted for much of the subsequent complaints. On many occasions the price was nominal or low and the person selling was not in reality the legitimate owner. In the process of issuing titles the person or persons named on the title may have been in fact a trustee for the owners, although this would not have been recorded. If the trustee was less than honest he could easily sell the land and pocket the proceeds.
As the process of colonisation grew and the number of immigrants increased there was tremendous pressure to find suitable land for farming and development. Many Māori were duped into selling with the prospect of hard cash. This was a double blow. This disinherited those who were not on the title, but was effective at marginalising Māori to poorer sections of less desirable farm land or removing their means of economic support altogether. Those who had led traditional lifestyles based on the land often had no skills for survival in a European context. Other methods were also used to take land. For example, local authorities such as the county and borough councils had the power to levy taxes against land. For a subsistence farmer this was a heavy burden. Many Māori did not derive any income from the land, which was used to raise food, often collectively, for their whanau and hapu. If the tax was not paid the local authority could register a charge against the land and then sell the land. Much land was taken, and little of the proceeds were left with the Māori.
However, the most significant erosion of land holdings was through the New Zealand wars in the period from the 1850s to the 1870s. The subject of the land wars is a major topic of its own. The wars began largely because the Māori had come to realise that the Treaty was not protecting their interests. Many attempts were made to have the government of New Zealand honour the Treaty promises but due to poor communication and arrogance, combined with racism on the part of the settlers, conflict arose. Modern military historians regard the Māori as superb guerrilla warfare experts and brilliant trench warfare engineers. While they won some major victories, the combined effect of superior British weapons, economic resources and overwhelming numbers of British soldiers were too much. Not all Māori supported or joined in the fighting and some fought for the British.
The punishment for taking part in the wars was confiscation of the land or raupatu. An Act was passed to enable the confiscation2 which said that any land of any tribe or section of a tribe or any significant number thereof deemed to have been in rebellion could be declared a district for purposes of the Act. Land in that district could then be set aside as a site for settlement and the land became Crown land. Compensation was payable but only if the person was not either in rebellion, or aided, assisted, or comforted those who had. It is now generally accepted in New Zealand that this Act and others of similar nature resulted in the unjustified seizure of extensive areas of land throughout the North Island. The wrongs were often supported in the Court and many dubious transactions took place.
As a result of the raupatu, Māori were pushed back to the poorer farmland and remoter areas. This then combined with the exposure to European disease and habits such as tobacco and alcohol meant that by the end of the 19th Century some commentators were concerned that the Māori were a dying race. European settlement continued throughout this period but until the 2nd World War the Māori were generally a rural and somewhat neglected people.
The Māori Land Court Today
The Māori land Court is administered by the Department of Māori Affairs also known as Te Puni Kokiri. The judges are selected from the lawyers, who practice as both barristers and solicitors. They must have at least seven years of experience, and must have specific knowledge of both Māori language and tikanga. The latter may sound obvious, but was only introduced in 2002. Over the years, the judges of the Court have been drawn from the ranks of the relatively small numbers of lawyers who practiced in the Court. Judges who are of Māori descent have only recently been appointed, which appears odd considering the need for knowledge of custom and history.
The Māori Land Court is set up under the Te Ture Whenua Māori Act 1993 and has jurisdiction to hear matters relating to Māori land. The Māori Land Court has a Chief Judge and a Deputy Chief Judge as well as resident Judges in most Māori Land Court districts. These Judges are appointed by the Governor-General. The Judges of the Māori Land Court are also Judges of the Māori Appellate Court. The Māori Appellate Court is a court of record originally set up under the Māori Land Court Act 1894, and now set up under Te Ture Whenua Māori Act 1993. It hears appeals from the Māori Land Court. Three or more Judges have power to act as the Māori Appellate Court.
The Māori Land Court and the Māori Appellate Court may state a case requesting the opinion of the High Court on any point of law arising in proceedings before it. The decision of the High Court on that point is subject to an appeal to the Court of Appeal. The decision of the High Court or the Court of Appeal, as the case may be, is binding on the Māori Land Court and the Māori Appellate Court.
The functions of the Māori Land Court are:
To promote the management of Māori land by its owners by maintaining the records of title and ownership information of Māori land
To service the Māori Land Courts and related Tribunals
To provide land information from the Māori Land Court and Crown agencies.
To contribute to the administration of Māori land
To preserve taonga Māori
The principal matters in which the Māori Land Court has jurisdiction under Te Ture Whenua Māori Act 1993 are:
Appointment of trustees for persons under disability
Succession orders in respect of interests in Māori land - the Māori Land Court has power to make vesting orders on succession in certain circumstances to those who are proven to be entitled to succeed to a deceased owner of Māori freehold land
Partition orders under section 289 of the Act
Vesting orders transferring or gifting land or interests in land under section 164 of the Act
Orders creating incorporation of Māori land owners under section 247 of the Act
Calling meetings of owners to consider alienation and use of Māori land
Confirmation of alienation of Māori land under section 326 of the Act
Appointment of trustees to carry out certain functions for the benefit of the beneficial owners
Charging orders in respect of rates owing
Appointment of agents for various purposes.
In addition, the Māori Land Court may have special powers conferred on it by statute or by Order in Council. Services provided by the Māori Land Court The Māori Land Court services are available through its seven registry offices, three information offices, and a website. The Māori Land Court also holds other important records - for example on adoptions, probates and letters of administration stemming from the time the Māori Land Court had jurisdiction in these areas.
Other information held in the Court Records includes: Māori Land Court surveys, partitions of Māori land, utilisation of Māori land, incorporation of owners, Māori land required for public works, Māori land alienations, judgments of Māori Land Courts, status declarations of Māori land, succession, burial grounds, Māori reservations, Māori school sites.
The Māori Land Court maintains a Court Manual of Procedures and administers the Rules of the Māori Land Court.
The Waitangi Tribunal
The Treaty is not a perfect document. See for example
“What we do have is the Treaty of Waitangi. It was not drafted by the Colonial Office but by Captain Hobson, assisted by others, on the basis of the muddled but for their time, liberal prescriptions in the Instructions from Lord Normanby. The result was not all bad, and Dr Orange has pointed out that the Colonial Office was critical of the terms of the Treaty as concluded by Captain Hobson. For if the Treaty was a simple expression of oppression it would not have been the source of embarrassment which it has been in practice.” (Brownlie 80)
The Treaty was not a formal part of New Zealand Law. Indeed, over a long period of time the Treaty was considered to be of historical interest only. In the 1970s, the Black Power movement in the United States influenced many young Māori into adopting a radical agenda. Their elders had at the same time began to revive interest in Māori issues generally. This came at least in part from the drift of previously, rural Māori to the cities after the Second World War. A number of issues brought the subject of Māori land rights to the forefront of public attention and when the Labour government came into power in 1972. They were aware of the deep discontent among Māori. The Labour party, and Māori had a long history of working together in Parliament. In the 1930s, the Ratana Church, founded by Māori and based on a mixture of Christian and traditional Māori beliefs, found that it had support among Labour supporters and this became a formal alliance when the Ratana Church candidates for the Parliamentary seats reserved for Māori, won all of the seats. From that time, the Māori members of Parliament were Labour party members and supported the Labour governments in power. The 1972 Labour government had a number of members, who were conscious of the need to recognise Māori discontent. The first move was to honour the day on which the Treaty was signed as Waitangi Day, and made a national holiday. This gave some official recognition to the importance of the Treaty and incidentally formed a platform for Māori protesters to publicly demonstrate their dismay at the injustices of the failure to honour the Treaty principles. The protesters were largely influenced by radical and sometimes separatist leaders but were often tacitly supported by iwi leaders. The increased awareness then led to some discussion as to the appropriate way to reinstate the Treaty and address the historical injustices. Accordingly, in 1975 an act was passed to establish a Tribunal, which would examine claims made pursuant to obligations under the Treaty. This was very significant because for the first time the Treaty had official recognition.
When the Tribunal was first established it had a limited jurisdiction and could not investigate matters before 1975, the year it came into force. Only a few cases were filed and heard, perhaps not surprising since most of the complaints about the failure to honour the Treaty derived form the first 50 years from the commencement. However the Act was subsequently amended to provide for a full historical claim period back to 1840. The Act says that it is: -
“An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.”
The function of the tribunal is to investigate and report on issues relating to the Treaty. The Tribunal was set up with a mixture of lawyers and others. This has continued and the members come from a range of backgrounds, including academic historians, lawyers and respected kaumatua. The Tribunal is not a Court, and while it has some of the powers of a Court it has an important investigative role.
The Tribunal may only hear claims made by Māori and the papers are not formal in the way a Court application would be filed. When a claim is filed, initial research is undertaken by the Tribunal staff to examine whether it is a proper claim. Unlike a Court, the Tribunal staff may assist parties by authorising payment to assist in research and has its own investigative staff of lawyers, researchers and historians. If the claim has merit then the Tribunal will allocate resources for a formal hearing. Parties may call witnesses, and experts and give evidence. The Crown has an important role and will often appear through Crown counsel to make submissions. The parties are encouraged to reach settlement by agreement, and there is a strong commitment to mediation and negotiation to reach agreed findings. The decisions are not binding on the government, but carry considerable weight. It would be a very brave government, which ignored the recommendation, particularly in light of the respect given to the Tribunal members.
While the Tribunal is not a traditional Court it does have some of the features. It has the exclusive jurisdiction to brawl on the meaning and defect of the Māori and English versions of the Treaty and rule upon any difference. There is a statutory obligation to provide reports which are accurate, equitable and able to be critically analysed.
By June 2000, the Tribunal had produced almost 70 reports, ranging from brief, one-page statements to the exhaustive, 1200-page, three-volume Ngāi Tahu Report 1991. Most of these claims are to do with land issues and with recognition of the injustices, particularly with the raupatu (land confiscations). Typical settlements have involved transfer of land and money grants to recognise that the loss of the land has caused other losses. Some iwi have as a result become powerful business entities. Ngāi Tahu are a good example and they now have a modern corporate structure overseeing land and commercial interests. The beneficiaries are the members of the Ngāi Tahu iwi, who now have restored land and the mana which goes with the land. They also have an income stream which is used to assist in education, health initiatives and housing.
In some cases, the Tribunal reports both its findings and its recommendations in one report. In other cases -particularly where the Tribunal might be asked to make binding recommendations - it may report in two stages. In this latter case, the Tribunal's first report is likely to contain only its findings, including whether the claim is well founded. Where the Tribunal upholds the claim, the parties may at that stage enter settlement negotiations, and it may not then be necessary for the Tribunal to make detailed recommendations. However, if such recommendations are required, the Tribunal will hold a 'remedies hearing', where further evidence and submissions directed at resolving the grievance will be presented. The Tribunal will then issue a second report containing its recommendations.
Sometimes, the Tribunal issues an interim report dealing with just part of a claim (or a grouping of claims) or presenting preliminary findings based on some but not all of the evidence. Such a report may be sufficient to enable the claimants and the Crown to enter into direct negotiations.
As well as being served on the Minister and the claimants, the Tribunal publishes its reports both in hard copy and on the Internet, so that they are available to everyone.
Although the Tribunal was originally envisaged as dealing with land issues other claims have also been brought. For example the te reo Māori claim concerned the official recognition of the Māori language, the Te Weehi Claim claimed that the fisheries legislation were contrary to the principles of the Treaty of Waitangi in restricting the exercise of fishing rights and Claims Concerning the Allocation of Radio Frequencies sought findings that Māori have rangatiratanga over the allocation of radio frequencies, Māori Electoral Option claim concerns the exercise by Māori of the Māori electoral option under section 76 of the Electoral Act 1993, by which Māori may elect whether to register on the Māori roll or the general roll. A claim by three wānanga Māori established as tertiary education institutions under the Education Act concerned the failure of the Crown to recognise the right of Māori, in terms of the Treaty, to receive funding, in order to provide properly for the education of Māori.
The Te reo claim is a good example. 'Ka ngaro te reo, ka ngaro taua, pērā i te ngaro o te Moa' 'If the language be lost, man will be lost, as dead as the moa'
The claimants alleged that the Crown had failed to protect the language as required by article 2 of the Treaty of Waitangi and proposed that it be made official for all purposes, enabling its use as of right in Parliament, the courts, Government departments, local authorities, and public bodies.
'Some New Zealanders may say that the loss of Māori language is unimportant. The claimants have in reply reminded us that the Māori culture is a part of the heritage of New Zealand and that the Māori language is at the heart of that culture. If the language dies the culture will die, and something quite unique will have been lost to the world.'
'An understanding of Māori language and culture was necessary not only to develop the full personal development of Māori children but also to assist the Pākehā to fully appreciate the history, achievements and character of Māori society.'
The Tribunal recommended that:
legislation be introduced enabling any person who wishes to do so to use the Māori language in all courts of law and in any dealings with Government departments, local authorities and other public bodies;
A supervising body be established by statute to supervise and foster the use of the Māori language;
An inquiry be instituted into the way Māori children are educated to ensure that all children who wish to learn Māori be able to do so from an early age and with financial support from the State;
Broadcasting policy be formulated in regard to the obligation of the Crown to recognise and protect the Māori language; and
Amendments be made to make provision for bilingualism in Māori and in English as a prerequisite for any positions of employment deemed necessary by the State Services Commission.
The Tribunal did not recommend that te reo Māori be a compulsory subject in schools, nor that all official documents be published in both English and Māori at that time, 'for we think it more profitable to promote the language than to impose it'.
In 1987, te reo Māori was made an official language of New Zealand and Te Taura Whiri i te Reo Māori (the Māori Language Commission) was established to promote the language.
The Court Cases
In addition to the Māori Land Court and the Waitangi Tribunal there have been a number of important court cases about Māori issues. I have included these as an illustration of how the interpretation of the Treaty has changed and evolved.
The first is Wi Parata v The Bishop of Wellington reported as (1887) NZLR 72. This case illustrates the position of the Treaty in the early history and after the land wars. The case concerned the validity of a Crown Grant of land originally given to the church by the Ngatitoa iwi for the purpose of a school. At the time of the Grant the iwi were prosperous and had many children who needed education. Eventually the Bishop as the representative of the church obtained a Crown Grant to secure title to the land. The original tribal owners became concerned because no school was ever established nor any use made for education. In the intervening years the iwi became scattered and greatly reduced in numbers. They sought declarations that the Bishop held the land in trust and that the land should be declared tribal land and the rents and profits accounted for. During the course of the argument the Court made a number of statements which to the modern ear are patronising and racist, as well as commenting on the Treaty. For example the judge described how the British Tribunals applied law according to the old law of the country, using the example of French law in Canada, Roman Dutch law in Ceylon and the Cape and the civil law in Mauritius. He then said "in the case of primitive barbarians, the supreme executive government must acquit itself as best it may of its obligation to respect native proprietary rights and of necessity must be the sole arbiter of its own justice." He then went on to say that the Treaty was a simple nullity because no body politic existed capable of making cession of sovereignty existed. This dismissed any possibility of recognition of the Treaty partner as having any authority at all. The judge compared the position of the Māori to that of Indian tribes in Canada and stated that the title to the land of the Crown was acquired by discovery and priority of occupation as a territory inhabited only by savages.
As recently as the 1940s this case was still referred to as binding in law and the Treaty was considered an interesting document of no legal significance.
The second case is Te Rununga Wharekauri Rekohu v The Attorney General [1993] 2 NZLR 301 concerning fishing rights. This was a judicial review case seeking to prevent a deed of settlement of Māori fishing interests from coming into effect. The case and reasons are conventional but the principles accepted in the case show how far the government and the courts had moved.
In the judgment the Court said:-
“First we would emphasise the positive features of the deed. The opinions expressed in this Court in the cases mentioned as to fiduciary duties and a relationship akin to partnership have now been further strengthened by judgments in the Supreme Court of Canada and the High Court of Australia. In these cases there have been further affirmations that the continuance after British sovereignty and treaties of unextinguished aboriginal title gives rise to a fiduciary duty and a constructive trust on the part of the Crown: see R v Sparrow (1990) 70 DLR (4th) 385, 406, 406-409 per Dickson CJC and LaForest J, delivering the judgment of the Court, a passage including the statement “The sui generis nature of Indian title and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation.”; Mabo v The State of Queensland (1992) 107 ALR 1, 85-86 per Deane and Gaudron JJ, 157-160 per Toohey J. the other judgments of the High Court of Australia are less definite on the fiduciary question (see Brennan J at pp 43-44) but clearly there is now a substantial body of Commonwealth case law pointing to a fiduciary duty.
In New Zealand the Treaty of Waitangi is major support for such a duty. The New Zealand judgments are part of widespread recognition that the rights of indigenous peoples are entitled to some effective protection and advancement.”
By contrast in the recent period the Courts have moved considerably and the Treaty had achieved considerable status. I have earlier referred to the period in the 1970s when the Treaty achieved recognition. The courts had to take notice and there are many cases which show the different stance. A good example is the Broadcasting case which is reported as New Zealand Māori Council v The Attorney General [1996] 3 NZLR 140 where the Court of Appeal opened the judgment with “The Crown has an obligation under Article 2 of the Treaty of Waitangi to protect the Māori language.” This represents a huge shift in the policy and status of the Treaty. Thomas J said in his (dissenting) judgment that
“ In the Treaty of Waitangi the Crown undertook the obligation to protect the Māori language in return for being recognised as the legitimate government of the whole nation by Māori. (See New Zealand Māori Council v Attorney General [1994] 1 NZLR 513, per Lord Woolf at 517). The Courts have further defined the obligation undertaken by the Crown. In 1987 it was held unanimously by a full Court of this Court that the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other. See New Zealand Māori Council v Attorney General [1987] 1 NZLR 641, at 664, 673, 681-682, 693, and 701. This fiduciary obligation has been reaffirmed by this Court in a number of subsequent decisions.
This case concerned an application to obtain interim relief to prevent the sale by the Crown of its commercial radio assets. The then Government was in the process of converting the state owned radio broadcasting network to private ownership. The appellants claimed that continued Crown ownership of its commercial radio assets was critical to compliance with the Crown’s obligations relating to the Māori language under the Treaty; that ownership helped the mainstreaming of the Māori language on commercial radio and as a consequence protected and enhanced the use of Māori.
The wide duties now accepted have led to further issues which may be relevant to all indigenous claims. Paterson J noted in a recent case that 3 the changes in Māori society since 1840, and in particular urbanisation, which, it had been submitted, meant that an allocation to iwi would not deliver the benefits of the settlement to the beneficiaries. He said (at 320-321):
In summary these include the fact that 81 per cent of Māori now live in urban areas, at least one-third live outside their tribal influence, more than one-quarter do not know their iwi or for some reason do not choose to affiliate with it, at least 70 per cent live outside the traditional tribal territory and these will have difficulties, which in many cases will be severe, in both relating to their tribal heritage and in accessing benefits from the settlement. It is also said that many Māori reject tribal affiliation because of a working-class unemployed attitude, defiance and frustration. Related but less important factors, are that a hapu may belong to more than one iwi, a particular hapu may have belonged to different iwi at different times, the tension caused by the social and economic power moving from the iwi down rather than from the hapu up, and the fact that many iwi do not recognise spouses and adoptees who do not have kinship links.
This is very specific to Māori but illustrates how the models of settlement must evolve with changes in society.
Conclusion
The indigenous rights of the Māori have been affected by the flow of thought from the early years of patriarchal paternalism and benign neglect to the present acceptance of the fiduciary duties owed to them. The existence of the Treaty of Waitangi has been a substantial aid to recovery of their position but given the international recognition of the rights of all indigenous peoples, this change and recognition may have occurred anyway. New Zealand has created its own remedies but the models are international and perhaps of use where the fiduciary duty may not yet be accepted.