Te Tiriti o Waitangi is not well understood by most New Zealanders, including most of the politicians that make up our main political parties. It is due to this lack of understanding, as well as populist politicking by some notable politicians, that there is an underlying resentment in our population regarding any policy which adequately honours the Treaty.
I’ve wanted to post on the foreshore and seabed debate for quite some time, however I think it’s important to first put it in context. The injustices done to Maori by the Foreshore and Seabed Act are only a continuation of the Crown’s contempt for the Treaty since it was signed in 1840. Today’s post is kind of a basic history lesson on just some of the Crown breaches of Te Tiriti. Tomorrow I will post on the foreshore and seabed debate and what I want to see happen next.
While this post is intended to put some context around the foreshore and seabed debate, I hope it also helps convince people that while Hone Harawira’s choice of words may have been inappropriate, there was some merit in the sentiment he expressed.
Article 2 of the Treaty provided Maori ‘full exclusive and undisturbed possession’ of their lands so long as they wished to retain them. Article 2 also gave the Crown pre-emption – the exclusive right to buy Maori land, but only with consent. Unfortunately the Crown have, since its signing, continuously dishonoured both the letter and the spirit of the Treaty.
The Waitangi Tribunal have a great analysis of the Waste Lands debate of the 1840’s, showing that even where the Crown followed the letter of the Treaty, they certainly never honoured its spirit. The Crown made use of the pre-emption clause (the Crown’s exclusive right to buy land) as a political tool to control Maori, refusing to buy land from those who opposed the Government. Further, rather than returning to Maori the land stolen with forged titles by the New Zealand Company, they instead forced Maori to accept token compensation, thereby breaching the right of Maori to only sell their land with consent.
In 1863 the Government passed The New Zealand Settlements Act, which enabled them to raupatu (confiscate), without compensation, land from Maori who were active in or in any way supported those active in rebellion against Her Majesty’s authority. It also allowed them to confiscate land from Maori who refused an order to give up their arms. In 1927 there was a Royal Commission of Inquiry into confiscations under the New Zealand Settlements Act. While the Commission’s recommendations were eventually implemented by the Government, the tribes involved were unhappy with both the scope of the findings, and the amount of compensation.
In 1848, the Ngati Toa tribe made an agreement with the Bishop of New Zealand to set aside some land for educational purposes. In 1850, Governor Grey issued a Crown grant of that land to the Bishop, without the consent of Ngati Toa. When by 1877 no school had been established, Wi Parata, Member of Parliament and a Chief of Ngati Toa, took the case to court to try and recover the land for his tribe. Chief Justice of the Supreme Court, James Prendergast ruled that the Crown grant to the Bishop was an ‘Act of State’ that used the Crown’s sovereign* powers to extinguish native title. Prendergast CJ went further, effectively ruling both the Treaty and the Native Rights Act 1865 invalid:
On the foundation of this colony, the aborigines were found without any kind of civil government, or any settled system of law The Maori tribes were incapable of performing the duties, and therefore assuming the rights, of a civilised community.
So far indeed as that instrument [the Treaty] purported to cede sovereignty a matter [with] which we are not here directly concerned it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist.
The [Native Rights] Act speaks further on of the ‘Ancient Custom and Usage of the Maori people’, as if some body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being.
While the Privy Council later recognised that the Treaty was one of cession and not a “simple nullity”, Prendergast CJ’s main ruling, that the Treaty has no legal standing unless incorporated into statute, still stands.
Prendergast’s reasoning was later incorporated into the Native Land Act 1909, expressly giving the Crown power to extinguish Maori title to “customary land”, and later the Maori Affairs Act 1953, allowing non-occupied Maori land to be declared “waste land” and confiscated by the Crown.
Throughout the 20th century, Maori land continued to be confiscated under the Public Works Act. There are also examples where Maori gifted land to the Crown for specific purposes (such as schools), and didn’t have it returned when the original purpose was fulfilled. The New Zealand History Online site has highlighted maps showing Maori land loss between 1860 and 2000.
It must be noted that the amount of compensation awarded in Treaty settlements is only a tiny fraction of the value of what was wrongfully taken from Maori. That Maori are willing to negotiate full and final settlements on this basis negates any claims by the likes of the National party of a ‘treaty gravy train’.
Both Labour and Nationals’ policies** post 2004 to set an end date for lodging historical Treaty grievances pose problems not just for compensating for past actions, but also for ensuring New Zealand history is recorded. In the words of Professor M P K Sorrenson:
So long as the Tribunal retains its retrospective jurisdiction to 1840, it will continue to recover a hitherto largely submerged Maori history of the loss of resources and mana, supposedly protected by the Treaty. The Tribunal’s findings may not be palatable to many New Zealanders, but it would be perilous to ignore them.
Finally, following the 2003 ruling by the Court of Appeal in the Ngati Apa case that Maori had the right to have their claim for title of the foreshore and seabed heard in the Maori Land Court, the Labour Government legislated away that right to have their claim heard. The justification used was that it was necessary to protect New Zealanders’ rights of access to beaches. Tomorrow I will show that no such threat to access existed, and that there were and still are many alternative remedies available.
* Te Tiriti is very clear that while Maori grant the Crown the right to Kawanatanga (Governorship), their rights to Tino Rangatiratanga (Sovereignty) are reaffirmed. But that’s a debate for another day.
** Legislated in the Treaty of Waitangi Amendment Act 2006, from the 1st September 2008 claims to the Waitangi Tribunal can only be made for events occurring after 21st September 1992.