Debating the Treaty

Oct 3, 2018

Ka hao te Rakatahi
Nā Nuku Tau

I was recently at a bar in Dunedin with some friends enjoying the scenes. We got talking to a group of students who described themselves as Libertarians. It wasn’t long before the conversation turned to who we were and where we were from. Standard procedure – once I say I’m Ngāi Tahu all the clichés come rolling out – in this case, the medical school quota system. This column is inspired by a good debate in a bar with less educated friends about the Treaty.

The treaty has a historically inconsistent role in New Zealand’s constitution and remains on uncertain ground. We need to understand its constitutional role in the colonial era, and the period of change from 1975 to 1985 that has so heavily influenced our Ngāi Tahu world today.

Essentially the treaty was a document of agreement and partnership, in which Māori chiefs allowed the Crown to govern, whilst the Crown agreed to respect the taonga and lands of Māori.

It is arguable that the treaty was initially respected, but in a colonial world its role and meaning fast became one of blatant disregard. The Crown gave lawmaking power to the settler government with the 1852 New Zealand Constitution Act. Responsibility for “Native Affairs” was transferred from the Crown to the settler government in 1870, severely compromising the Crown’s ability to fulfill treaty obligations.

By 1870, settlers outnumbered Māori by over 150,000, creating insatiable demand for land. The colonial courts took full advantage of the power transfer. In 1877, in the Wi Parata v Bishop of Wellington case, the respected, wealthy Ngāti Toa farmer Wi Parata took the Anglican Church to court over a breach of promise to build a school for Ngāti Toa rangatahi in exchange for land, citing a breach of treaty principles. In 1850, the church received a Crown grant to the land, without iwi consent. Chief Justice Sir James Prendergast sated settler demand by rendering the treaty a “simple nullity” signed by “primitive barbarians”. The treaty was considered void and unenforceable by law, giving it little relevance in the nation’s governance. The principle set by Wi Parata v Bishop of Wellington became the dominant judicial approach to the treaty right up to the 1960s with the Ninety Mile Beach case.

The treaty began to play a significant role in the constitution following Māori protests in the 1970s and the national need to atone for past injustices. The Waitangi Tribunal was established in 1975 to resolve treaty breach claims, and in 1985 was granted retrospective jurisdiction. The Tribunal is responsible for the investigation of many tribal settlements – the Ngāi Tahu claim being one. It has been greatly influential in changing public attitudes towards the treaty.

In the courts, the New Zealand Māori Council v Attorney-General case resultant of the State-Owned Enterprises Act 1986 tested the government’s commitment to the treaty. Despite governmental assurances, Māori felt that the SOE Act would interfere with the treaty settlement process. Section 9 stated that nothing in the Act permitted the Crown to behave in a manner inconsistent with treaty principles. The Court of Appeal decided Section 9 overrode everything else in the Act, and made a unanimous ruling in favour of the Māori Council. A monumental result. The Crown could not transfer land to State-Owned Enterprises until treaty issues were resolved. The President of the Court of Appeal stated the case was “as important for the future of our country as any that has come before a New Zealand court.” The case judgements established the practice of following treaty principles of partnership between Crown and Māori – as was originally intended. This idea of adhering to treaty principles rather than the strict text is prevalent today across a range of legislation, including the Resource Management Act. The rapid changes over the last 40 years have brought the treaty from legal “nullity” to the most important document in the country, with far greater visibility across all levels of government.

Despite these rapid changes, the role of the treaty is still uncertain, as it has never been adopted into New Zealand law. Currently only the “principles” or some similarly vague phrase are enforceable by legislation. Even when such legislation may be enforced by the courts, the executive may choose not to comply. This can be seen in the 2003 Ngāti Apa v Attorney-General case, where the government overruled the court’s decision with the Foreshore and Seabed Act 2004.

Law Professor Sir David Williams argued the government’s Foreshore and Seabed legislation reflected the Prendergast ruling. This approach to the treaty reinforced the efforts of governments to deprive Māori of their land, resources, and culture; creating an economically and culturally impoverished people in our own lands.

This issue of the treaty’s legal status may be solved by the inclusion of both Māori and Pākehā treaty texts in a new, written constitution that is supreme and entrenched law. Some debate would have to take place to reconcile the differences in the two texts. Ultimately, the spirit of partnership between Chiefs and the Crown should prevail. This would ideally continue the direction the courts and nation are currently moving in. The key difference is it would elevate the treaty’s status to enforceable law, empowering it beyond decisions of populist politics into a more meaningful role in the governance of the nation to the benefit of Māori and Pākehā.

Nineteen-year-old Nuku Tau (Ngāi Tahu, Te Ngāi Tūāhuriri) is in his first year of a law degree at the University of Canterbury.