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Maori and the State: Crown-Māori relations in New Zealand/Aotearoa, 1950-2000

‘The Treaty Principles’

‘The Treaty Principles’

Whatever the critiques of the Maori Council judgment and Tribunal findings, however, the focus on ‘the Treaty principles’ helped ensure the Crown addressed ways of seeking the ‘negotiated co-existence’ sought by parties representing Maori. Ongoing negotiations between Crown and tribal and other groupings became an increasing and embedded feature of Crown–Maori relations. Judicial pronouncements and Tribunal recommendations on issues of Crown–Maori partnership could, many Maori felt, help them attain a meaningful degree of devolved power. The Court-ordered negotiations resulting from the Maori Council case provided an early example of a compromise acceptable to the major parties involved (although not all Maori believed it went far enough).page 227 The resulting Treaty of Waitangi (State Enterprise) Act in mid-1988 gave the Waitangi Tribunal binding powers in circumstances where it found thatSOE lands (or interests in them) had been originally acquired in breach of the Treaty. The Act’s ‘claw back’ mechanisms provided for the Tribunal to direct compulsory repurchase of land by the Crown for use in Treaty settlements, even if the properties had been on-sold to third parties (who would know of the risk, because ‘memorials’ would be placed on the title at purchase).

The Tribunal gained further binding powers after other court-ordered negotiations, especially following the July 1988 announcement that state forests were to be privatised. Agreement reached in July 1989 between the Crown, the NZMC and the Federation of Maori Authorities paved the way for the Crown Forest Assets Act, under which only ‘cutting rights’ to Crown commercial forests (as opposed to the land on which the trees grew) could be sold for the time being. In the following year, the Crown Forestry Rental Trust was set up to receive licence fees paid for the use of the land. In the event that an ownership claim to state forestry land was successful, the Maori owners would be paid the accumulated rentals relating to that land. Meanwhile, interest on the trust’s holdings would be made available to assist claimants to research and prepare their claims.

The Waitangi Tribunal would refer to its binding powers sparingly, especially in the face of occasional government threats to its jurisdiction (and even its existence) if it exercised them ‘irresponsibly’. But the very existence of powers of compulsion boosted its capacity (whatever the suspicions about its ‘independence’ in some quarters) to succour Maori aspirations. So, too, did further judicially-inspired constraints on government, sometimes as a result of actions initiated by Crown-franchised bodies other than those within the NZMC system. In 1989, the Tainui Maori Trust Board was successful in having the transfer of Crown ownership of coal to the SOE Coalcorp restrained on grounds that coal constituted an ‘interest in land’. In its judgment, the court reiterated concepts of partnership and good faith. The Prime Minister’s response, that the decision was an exercise in judicial activism, epitomised a widespread belief that the unelected judiciary was acting untowardly in attempting to place limits on parliamentary exercise of sovereignty. But, as some politicians themselves acknowledged, pressure from legal decisions was one of the major reasons the Crown continued to grapple with ways of addressing ‘principles of the Treaty’ which were now pervading many areas of official life as well as occupying much public discourse.9

The principles were notably being applied to water-based issues as well as to matters involving land and people. In 1986, a judicial ruling in the Te Weehi case, to the effect that fisheries legislation gave Maori certain Treaty-based rights, had created difficulties for the government’s plans to privatisepage 228 commercial fisheries. The Fisheries Amendment Act of that year introduced a Quota Management System for such fisheries, based on Individual Transferable Quotas (ITQs), but this was challenged by Maori parties for overriding and appropriating Maori interests in fishing. While the Act did explicitly recognise Maori fishing rights, these were interpreted as traditional, non-commercial rights. Moreover, with ITQs allocated on the basis of catch history, part-time commercial fishers, many of whom were Maori, were effectively excluded from the system. All in all, Maori property rights under the Treaty were said to have been breached. After the Waitangi Tribunal’s request for more time for the parties to talk was ignored, claimants secured an interim injunction which led in December 1987 to a government agreement to negotiate.

Further momentum was gained by Maori parties from the findings of the Waitangi Tribunal’s Muriwhenua Fishing Report, released on 31 May 1988. This admonished the government for failing to recognise ‘tribal authority, or rangatiratanga’. The Tribunal’s endorsement of a role for rangatiratanga in fishing reportedly ‘astonished most Pakeha’ and led to dire predictions of ‘an end to fishing in New Zealand’. The government was fearful of alienating mainstream public opinion by conceding ‘special privileges’, while Maori negotiators (selected at a national hui) were under considerable pressure from their tribes to secure up to half of all interests in fisheries (under a definition of partnership posited on an ideal scenario of equality). An interim agreement which deferred resolution of the main issues was reached in 1989, and the resulting Maori Fisheries Act allocated ten percent of commercial fishing interests and $10 million to a new Maori Fisheries Commission, as well as making provision for local Maori fisheries (taiapure) to be managed by iwi.

This was a Crown-dominated result, with an overarching trustee body to hold assets, and ultimate control over taiapure lying with the minister. But the fact remained that legal action had led to a negotiated nationwide settlement that had taken place in the context of the principles of the Treaty and Waitangi Tribunal findings. The interim settlement provided for Maori management of fishing resources at both central and local levels, respecting rangatiratanga to a certain degree; and it presaged a more generous future settlement. This and other developments seemed to make the Tribunal bolder, and eventually (in its findings on Taranaki) it would talk firmly of autonomy being ‘pivotal to the Treaty and to the partnership concept it entails’.

All the same, any negotiated settlements with Maori claimants needed to be agreed within the broad parameters of Crown sovereignty, and this made the various Crown–Maori negotiations palatable (or not too unpalatable) to the mainstream pakeha public. And even as the Tribunal steered towards accepting the rangatiratanga interpretation of the Treaty, critics declared itspage 229 passage to be somewhat in the nature of a zig-zag (and sometimes a retreat). When it presented its report on the Ngai Tahu claims to a new government in 1991, for example, its ‘Treaty principles’ had become, in the eyes of some, ‘qualified a little’. While its members reiterated previous Tribunal conclusions that the Crown’s right to govern was limited by Maori Treaty rights, they also concluded that rangatiratanga was not a ‘form of legal sovereignty apart from that of the Crown’; if it were, how could the Crown have been able to confirm Maori in possession of their taonga and keep the peace?

While radical elements of Maoridom criticised the Tribunal for such a stance, there was a paradigmatic logic to its perspective – as well as to regarding as ‘startling’ a Ngai Tahu suggestion that ‘the power of Parliament is subject to the terms of the Treaty’. In any case, it had been implicit in much of the rangatiratanga discourse ever since 1840 that most Maori would accept a form of autonomy that came under the Crown’s sovereigntist umbrella. Even in the exhilarating debates of the later 1980s, comparatively few Maori were seriously arguing for constitutional separatism, or even expecting equal power-or resource-sharing with the Crown. The challenge for all parties had been how to establish a meaningful relationship based on Treaty principles, one that embodied a genuine partnership. Whenever the words ‘partnership’ or ‘principles’ became too imbued with implied challenges to Crown sovereignty, the state moved to ‘clarify’ them.10

9 McHugh, ‘Law, History and the Treaty of Waitangi’, p 51 (for ‘negotiated co-existence’ quote); Orange, An Illustrated History, pp 166–7, 185–7; McHugh, The Maori Magna Carta, p 250; Palmer, Geoffrey, ‘Treaty of Waitangi Issues Demand Clarity, Certainty’, New Zealand Herald, 2 Jan 1990; Callahan, ‘Constitutionalisation’, pp 246–7.

10 Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Wai 22, Wellington, 1988; Dawson, The Treaty of Waitangi, pp 125–31, p 132 (for ‘tribal authority’ quote), p 133 (for ‘special privileges’ quote); Renwick, ‘Decolonising’, p 39 (for ‘astonished’ quote); Te Puni Kokiri, Nga Kai o te Moana: Kaupapa Tiakina, Wellington, 1993, pp 22–5; Waitangi Tribunal, The Taranaki Report, section 1.4; Walker, Ka Whawhai Tonu Matou, p 263; Orange, An Illustrated History, pp 169–75 (p 173 for ‘an end to fishing’ quote); Oliver, Claims, p 79 (for ‘qualified a little’ quote), p 80 (for ‘form of legal sovereignty’ quote), p 81 (for ‘the power of Parliament’ quote); Walker, ‘The Treaty of Waitangi’, pp 67–8.