This paper, by the Honourable Maurice McTigue, New Zealand High Commissioner in Canada, was written in response to CARC's request for a New Zealand Government perspective on Maori land rights.
International Comparisons
The situation concerning aboriginal land rights in New Zealand is different from that in Canada or in Australia. In Canada, a number of different treaties covered parts of the country but left large tracts of territory over which there were no treaties. The indigenous people were disparate and included first nation Indian tribes and Inuit.
Australia does not have treaties with the aboriginals or with the Torres Strait Islanders and, at least until the decision in the Mabo case, the prevailing Australian view was that Australia was terra nullius and had belonged to no-one until the British declared sovereignty. Both Canada and Australia have adopted federalism, with governmental responsibilities shared between provinces or states and a federal legislature.
In New Zealand one treaty—the Treaty of Waitangi— covered the entire country, one indigenous population and one central structure of government, except for a brief experiment with provincial governments from 1853 to 1876.
The Treaty of Waitangi: Early Days
The Treaty of Waitangi was signed in 1840 by authorized representatives of the British Crown and more than 500 Maori chiefs on behalf of iwi (tribes) and hapu (clans). The Treaty's three articles provided a national government with general lawmaking powers, guaranteed that Maori would retain their lands and other material and cultural treasures for so long as they wished, and assured Maori that thev would enjoy equal rights with all other New Zealanders.
At the outset, the Crown's representatives in New Zealand attempted to adhere to the instructions from the London Colonial Office that the honour of the Queen required fair dealings with Maori and that Maori land rights were to be recognized and respected—a position reinforced shortly afterwards by the Supreme Court. Whatever other problems have arisen, this basic position has never been rescinded of ficially. For some two decades after 1840, this was further recognized in practice as the Crown exercised its pre-emptive right to purchase land from Maori customary owners.
Tensions rose, however, as a continued influx of colonists created a constant pressure for more land for settlement. Crown agents entered into agreements with Maori to purchase land, but often the government failed to honour its side of the agreement. For instance, prices were inadequate, surveys were inaccurate, promised reserves never materialized, and land Maori had thought to be excluded from sale was subsequently found to be included in Crown grants to others. Increasing Maori reluctance to sell more land raised tensions and eventually culminated in the Anglo-Maori wars that were fought intermittently during the 1860s.
As a consequence of those wars, the Crown confiscated vast areas of land from a considerable number of iwi as punishment for their perceived rebellion against its authority. This confiscation (raupatu) has been a major source of grievance against the Crown ever since.
In 1865, the Crown attempted a peaceful determination of Maori land title with its establishment of the Native Land Court. The Court's main task was to individualize communal, tribal title—a double-edged policy that provided theoretical legal protection for Maori land owners but undermined the communal nature of their land holding and social structure and exposed them to the predations of both private land sharks and Crown land purchase agents. From the late nineteenth century, a series of royal commissions of inquiry, government development schemes, and settlements with some tribes attempted to investigate, analyze, and rectify Maori land grievances and to give Maori a viable economic base.
While reaffirming the underlying common law doctrine of native title, the Treaty of Waitangi went much further and created an obligation on the part of the Crown to act in a fiduciary relationship with its Maori Treaty partner. Maori faith in the Treaty, however, particularly after the 1860s wars, gave way to disenchantment as they perceived the Crown's disrespect for its terms.
Response of the New Zealand Government
The New Zealand Government responded to growing pressure to address Maori concerns in a co-ordinated and structured manner by passing legislation in 1975 to establish the Waitangi Tribunal. The Tribunal's mandate was to hear and report on Maori grievances against the Crown under the Treaty of Waitangi where the cause of action arose after 1875. Its taskwas to receive claims for Treaty breaches from Maori, report on historical findings of fact, and make recommendations for resolution of the grievances. In 1985, the Tribunal's jurisdiction was expanded to enable it to hear all grievances dating back to 1840. Both the Tribunal and the law courts in New Zealand have viewed the Treaty as a living document to be interpreted in accordance with broad principles.
Establishment of Special Agency
In 1988, the government established the Treaty of Waitangi Policy Unit within the Department of Justice to address Treaty issues. This unit became the Office of Treaty Settlements in January 1995, a government agency that reports directly to the Minster in Charge of Treaty of Waitangi Negotiations. It is responsible for the development of policies for the Crown concerning the settlement of Treaty of Waitangi claims, and it negotiates and implements settlements of the claims.
Negotiations Process
The Waitangi Tribunal and the Of fice of Treaty Settlements are separate organizations that perform different functions. The Waitangi Tribunal investigates and reports on Treaty Claims, and then the Office of Treaty Settlements uses the Tribunal's reports as a basis for negotiating and settling claims.
Claimants may also bypass the Waitangi Tribunal hearing process and seek direct negotiations with the Crown. When a claimant seeks direct negotiations, the Crown analyzes the historical basis for the claim and seeks assurances on appropriate representation for the claimant. The operations of Treaty negotiations are undergoing review following the establishment of the Office of Treaty Settlements, but the government' s current intention is that after preliminary discussions the claim will be entered into the Negotiations Work Programme. Acceptance of a claim into this programme is important, for it means that the Crown acknowledges the nature and significance of the Treaty breach and that both the Crown and the claimants are willing to negotiate a resolution to the grievance. The Minister in Charge of Treaty of Waitangi Negotiations then seeks a negotiating brief from Cabinet, which, after setting out the facts of the claim and any important issues that may arise, provides authority for negotiations to begin. Once negotiations are successfully concluded, a draft deed of settlement is drawn up. This deed is then ratified and signed by the claimants and the Crown and becomes the Final Agreement.
Statutory Protection of Maori Interests in Land Formerly in Crown Ownership
For the most part, the Waitangi Tribunal has power to make recommendations only. There are exceptions, however, whereby certain statutory provisions enable the Tribunal to make recommendations that are binding on the Crown.
Land that the Crown has transferred to certain state enterprises and tertiary educational institutions and Crown forest land over which there is a forestry licence must, on appropriate recommendation from the Waitangi Tribunal, be purchased by the Crown for transfer to Maori to redress a valid Treaty grievance.
There is additional statutory protection for land owned by a state enterprise that is deemed to be a wahi tapu (sacred site). This sacred land may be reclaimed by the Crown, on application by Maori, through an Order in Council and returned to the tribe. An application under this process exists independently of any Treaty grievance and does not require the involvement of the Waitangi Tribunal.
The Waitangi Tribunal is prevented by statute from recommending the return of privately owned land or the acquisition by the Crown of such land for return to Maori.
Mechanisms for Protection of Maori Interests in Crown Land
In 1993, the government set up a mechanism to provide for consultation with iwi when it desires to sell land that is surplus to Crown requirements. This protection mechanism recognizes three categories of land: non-substitutable sites of special historical, cultural or spiritual significance; land of special importance that is essential for settlement of a claim; and land not falling into either of the foregoing categories but that is particularly sought by claimants and will facilitate settlement of claims. In the case of non-substitutable sites, it is not necessary for iwi to have any claim concerning a breach of the principles of the Treaty of Waitangi for such land to be returned.
The protection mechanism is intended to ensure that land the Maori applicants claim and the government agrees ought not to be sold is either transferred to the claimants or retained by the Crown for possible future use by the claimants as part of their claim settlement.
Land banks established for claims that have reached an advanced stage of consideration hold and administer land set aside under the protection mechanism process pending transfer to the claimants in settlement or part settlement of their claim. Some land banks have also been established during the course of negotiations with specific claimant groups to hold surplus Crown properties that claimants identify as potentially part of their settlement package.
In May 1995, the government took steps to provide further protection for Maori interests in Crown land. In grievances concerning land that was confiscated, claimants usually seek the substitution of land still owned by the Crown. To allay Maori concerns that the Crown might continue to sell surplus land in the raupatu areas and thus reduce the amount of Crown land available for inclusion in settlements, the government agreed that surplus Crown properties situated within the outer confiscation boundaries would not be sold into private ownership. The government agreed to establish a Crown Settlement Portfolio to purchase and hold all surplus properties for possible use in settlements of Treaty claims.
Conclusion
The New Zealand Government has recognized the need not only to hear
and report on Maori Treaty grievances but also to provide a means for
negotiations and settlement of these grievances. With the Waitangi
Tribunal and the recent establishment of the Office of Treaty
Settlements, a suitable forum is now in place for this to occur.