The Status and Rights of Indigenous Peoples

The Status and Rights of Indigenous Peoples

The Status and of Indigenous New Zealand Rights in Peoples Markus Ehrmann* I. Introduction New Zealand offers The people. special approach ...

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The Status and

of Indigenous New Zealand

Rights

in

Peoples

Markus Ehrmann*

I. Introduction

New Zealand offers

The

people.

special approach

a

colonisation of the

European

to

the

status

territory

and

rights

of New Zealand

of

indigenous

was

based

on

of Waitangi, signed a treaty between the British Crown and the Maori, the Treaty and between of treaties a indigenous peoin 1840. The practice European power ple is not unknown in the history of colonisation, at least in the Pacific area.1 of Waitangi, named after the place where it was signed, is However, the

Treaty

of colonisation.2 The text of the Treaty comprises only three Articles and a Preamble and thus seems rather inconspicuous. Yet it aims at the cession of sovereignty over the territory of New Zealand from the indigenous Maori to the British Crown. In return the Crown confirms and guarantees the in the

unique

Maori

The

history

lands, estates, forests, fisheries and other properties.3 Treaty of Waitangi is a living document and on-going

forms the basis of the

relationship

and

partnership

covenant

which

of New Zealanders of Euro-

The importance of the Treaty for pean and of Maori descent in the present day.4 be overestimated, even if its legal the constitutional life of New Zealand cannot status

is still

ument

a matter

of

Treaty has been seen as the "founding docZealand"6, "simply the most important document in

dispute.5

of the nation of New

The

jur, Berlin. Between 1826 and 1910 France,

Ref

Germany, the United Kingdom and the USA concluded at least area, see K e i t h, The Treaty of Waitangi in the Courts, New Zealand Universities Law Review 14 (1990), 37, 38. 2 See in Victoria Univere.g. Chief Justice Fenton 1870 in the decision Kauwaeranga (reprinted sity of Wellington Law Review 14 [1984], 227, 242): "There is probably no case of a colony founded in precisely the same manner as New Zealand, i.e. by contract with a race of savages, the Crown of England obtaining the sovereignty of high domain, and confirming and guaranteeing to the aborigidetailed discussion of this nes the useful domain, or the use and possession of all lands." (See for a decision infra note 51 and accompanying text.) 3 See the full text of the Treaty in Annex, IX., in this issue. 4 Compare the President of Court of Appeal of New Zealand, C o o k e, in the decision Maori Council v. Attorney General, Court of Appeal, New Zealand Law Reports (NZLR) 1, 1987, 641, 663, line 55: "The Treaty has to be seen as an embryo rather than a fully devolved and integrated set of ideas." (See for a detailed discussion of this decision infra note 115 et seq. and accompanying text.) 5 Compare only the Introduction of the former President of the Court of Appeal, The Right 65

treaties

with island "States"

in

Honourable Sir Robin C o o k e, the occasion of the 150th

Review 14 6

(1990),

the Pacific

the

special

anniversary

of the

to

issue of the New Zealand Universities Law Review

Treaty

of

Waitangi,

on

New Zealand Universities Law

1-8.

New Zealand Government

Online, The Treaty of Waitangi, http://www.govnz/nz-info/treaty

shtml.

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31 Za6RV 59/2

464

Ehrmann

New Zealand's

history,,7 or the legal research9

been the topic of bates.10

"Maori

and

-

Magna Charta,,.8 The Treaty has further

above all

-

the focus of

lively political

de-

A treaty between

a European crown and indigenous people concerning the ceding of sovereignty raises interesting questions of international law. However, regarding the indisputable sovereignty of the British Crown over the territory of New Zealand today and the de facto "integration" of the Maori in the society of modern New Zealand, it seems to be more interesting to review the Treaty of Waitangi as a legal instrument for the protection of the Maori as a minority group in

New Zealand's

as

society.11 This paper will focus first on the development from 1840 day of the land rights, fisheries rights and other rights of the Maori, guaranteed in the Treaty of Waitangi, and second on the legal status of

the present

to

they are Treaty.

the

IL Historical For

Background

better

understanding of the contents of the Treaty, this part shall give its background. It will provide an overview of the situation, which led to the signing of the Treaty, the history of the proceedings of the signature itself and a description of the direct consequences of the Treaty.12 a

historical

7

Cooke

8

See the title of the book

(note5),

1.

by M c H u g h, The Maori Magna Charta New Zealand Law and the Treaty of Waitangi (199 1); C o o k e (note 5), 8. This wording is taken from a series of reports of the Waitangi Tribunal. (See for a detailed discussion of this institution infra notes 58-63 et seq. and accompanying text.) 9 The Treaty of Waitangi has been the subject of a number of special issues of New Zealand's leading law reviews: see e.g. New Zealand Universities Law Review 14 (1990), 1-96 and Victoria University of Wellington Law Review 25 (1995), 91-248. 10 See the speeches at the 1995 Symposium of the Victoria University of Wellington of P e t e r s (then chair of the "New Zealand First" Party), A Time for Leadership, Victoria University of Wellington Law Review 25 (1995), 118 -128; G r a h a in, Address by the Minster in Charge of Treaty of Waitangi Negotiations, ibid., 231-237; Caygill, A Labour Party View, ibid., 238-240; Palmer, Where to From Here, ibid., 241-244. Compare for a comprehensive overview of the sociological and philosophical debate of Maori matters S h a r p, justice and the Maori (1990). 11 16 % of the population in New Zealand are Maori. In the census 1996 579.714 persons from a total number of 3.618.303 said that they have Maori ancestors (see the homepage of the Government of New Zealand at http://www.stats.govt.nz/). 12 Compare for an overview: A i r e y, New Zealand in Evolution, in: Belshaw (Ed.), New Zealand -

(1947), 73, 79-80; Sutherland, Maori and Pakeha, in- ibid., 49, 56-58; McLintock, Crown Colony Government in New Zealand (1958), 54-71; id., Treaty of Waitangi, in: Encyclopaedia of New Zealand 3 (1966), 525-539; Wright, New Zealand, 1769-1840 Early Years of Western Contact (1959),187-201; Oliver, The Story of New Zealand (1960), 48-62; Cooke (Ed.),Portrait of a Profession (1969), 17-22; McIntyre, Colonies into Commonwealth (1966), 59-63;Sinclair, A History of New Zealand (1980), 70-73; Rice, The Oxford History of New Zealand (1992), -

28-53.

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Status and

Rights

of

Indigenous Peoples

1. The British Colonialisation

in New Zealand

465

of New Zealand

inhabitants of New Zealand. Starting from the eighth century, they came from the Polynesian area to the territory which they called "Aotearoa". It can be demonstrated that they settled there,at least from the tenth century onwards. The first known white. man to see "Aotearoa" was the Dutch sailor Abel Janszon Tasman, after whom the island Tasmania south of AusThe Maori

are

not

the

original

December 1642, saw parts of the islands of "Aotearoa" on 13 take possession of them. However, this incident was decisive for the known as "New Zeaname of the new territory: in the following years, it became end of 1769 Captain James the At Zeeland. Dutch after the land", called province

tralia is called. He but did

not

name of King George 111. It was Cook South Island, which form the main parts who explored the North Island and the of the territory of New Zealand. The British settlement then began at the end of the 18th century. It was a rather slow development: in 1838 only 2000 British.sublived in New Zealand. The number of settlers began to grow only in the

Cook took

"possession"

of the land in the

jects

1830s. At that

independent

time, the British Government still considered New Zealand

as an

state.13

exploration until the British Crown took over might be surprising, considering the British coworld. However, it can be explained by the the of other lonial expansion in parts Zealand. lack of natural resources in New Additionally, no trade was possible with the Maori, who were fishermen and warriors. Finally, considering the geographical position of New Zealand, no strategic reasons urged the British Crown to take over sovereignty. However, there had been a number of developments in the years before 1840, which led the British Crown to conclude the Treaty of Waitangi. First, there were problems to ensure the public order among the British settlers. It is said that a good number of persons living at that time in New Zealand were fugitive prisoners from camps in Australia and mutineers from British ships. They lived there without any form of public order and in a state of lawlessness. The initial reaction of the British Crown was the dispatch of Sir James Busby as Some 70 years passed after the sovereignty in New Zealand. This

Permanent British Resident

and

military

support, he

was

on

14

June

unable

1832.

to restore

However, without any authorities

public

order.

signed a "Declarathemselves as the proclaimed They Independence "United Tribes of New Zealand" and declared that they alone would have all rights and powers of sovereignty in this territory. At the same time they entreated On 28 October 1835, 35 Maori Chiefs of the North Island

of New Zealand".14

tion of

13

See the

comments

the Native Land Court,

King George IV, as they are quoted in the 1870 Kauwaeranga Decision of reprinted in Victoria University of Wellington Law Review 14 (1984), 227,

of

232. 14 "Declaration of Independence of New Zealand", reprinted in the Kauwaeranga Decision of the Native Land Court of 1870 (note 13), 227, 233. The Declaration can also be found on the homepage of the Government of New Zealand at http://wwwwcc.govt.nz/ponke/independ.txt.

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466

Ehrmann

'that [His Majesty the King of England] will continue to be the parent of their infant State, and that he will become its Protector from all attempts upon its independence.1115 This proclamation was intended to ensure protection from European

settlers, but also from hostile

Maori tribes. The Declaration was officially handed Busby, who sent it to London on 2 November 1835. It was Busby himself who encouraged the Maori to this Declaration in order to forestall a French colonisation. He hoped to form a kind of Maori statehood, so that the British Crown was given the possibility to enter into negotiations with it in order to conclude a Treaty. over to

Second,

foreseeable

it was

at

that time that the number of settlers would

sively

increase. In 1838 the "New Zealand

which

planned

a

systematic settlement

thus had

mas-

Company" was founded in England, policy in New Zealand. The British Gov-

that regarding.the vast number of settlers the setcomplete disorder. In addition the "New Zealand Company" aimed at a form of "self-government" for their settlements without any recognition of the British Crown. Moreover "land-sharkers" from Sydney had bought vast areas of land at ridiculous prices. Disputes over land between Maori and settlers seemed to be inevitable. Finally, English missionaries urged the ernment

tlement would

Crown

to

concerns

develop

-

-

in

protect the Maori.

2.

The signature of the

Treaty

Given that situation, the British Government decided

ered the "United Tribes of New Zealand" official

be

to act

in 1838. It consid-

equal partner for negotiations. An New Zealand for negotiations with

as an

dispatched to ceding sovereignty and their protection. William Hobson, Captain of the Royal Navy, was chosen for that mission, since he had previously visited New Zealand in 1837. He was appointed "Consul" and representative

was to

the Maori about the

of the

"Lieutenant Governor"

at the same time: as "Consul", he was to enter into negowith the Maori, as "Lieutenant Governor" he should exercise power in the acquired territories. The detailed instructions16 from the British Govern-

tiations

newly ment

for Hobson

information about the motives of the Crown for the negonegotiate with the Tribal Chiefs as they Would represent an in-

give

tiations. He should

dependent government. The Crown would refrain from any kind of acquisition of New Zealand by exploration, occupation or conquest. Sovereignty should only be based

on

cessation, which the indigenous people have consented in free and in-

formed

consent

Crown,

not to

following to their customs. Land should only be ceded to the its subjects. Nobody should hold any title to land than the Crown

itself. 15

16

Ibid.,

para. 4. "Instructions from the

Secretary of

State for War and

Colonies, Lord Normanby, to Captain Zealand, concerning his duty as Lieutenant Governor of New Zealand as a part of the colony of New South Wales, dated 14 August 1839", partly reprinted in the Kauwaeranga Decision of the Native Land Court of 1870 (note 13), 227, 236-238.

Hobson, recently appointed

H.M. Consul

at

New

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Status and

Rights

of

Indigenous Peoples

Captain Hobson reached New Zealand

on

467

in New Zealand

29 January 1840

at

the

Bay of Islands.

his instructions he

Following proclaimed any title to land other than that of the Crown as void. Then he convened the Chiefs of the Northern Tribes to Waitangi. 17 The

Treaty had been drafted by Busby and translated by Reverend Henry Williams language at 4 February 1840. The deliberations between the Maori Chiefs and Hobson, who was supported by Busby, Williams and other missionaries began on 5 February 1840. At the outset, Hobson and Busby explained the Treaty and its necessity. Both stressed that no land should be taken away from the Maori, rather the Treaty should ensure their protection. The majority of the Chiefs initially spoke against the Treaty. They had seen the occupation of New South Wales and Tasmania and the fate of the Aborigines there. It was only the speech of the influential Chief Tamati Whaka Nene that turned the debate in favour of the Treaty. He urged Hobson to protect the land and the customs of the Maori and to "remain for us a father, a judge, a peacemaker."l 8 On the following day, 6 February 1840, the Treaty was signed by 45 Chiefs and by Hobson. Hobson is said to have ended the ceremony with the words "We are now one people". At that time, only Chiefs from parts of the North Island, where most of the Maori settled, had signed the Treaty. To extend the Crown's authority Hobson and the missionaries travelled through the country to obtain further signatures for the Treaty. At the end of the day, about 500 Chiefs had signed the Treaty. However, not all Maori Chiefs signed the document, some could not be reached, some were against it. Before all signatures could be collected, Hobson proclaimed the sovereignty of the British Crown over the whole territory of New Zealand on 21 May 1840. He felt urged to that step by the news of the arrival of settlers of the "New Zealand Company". To justify the sovereignty of the Crown, Hobson referred to the cessation of sovereignty in the Treaty of Waitangi regarding the Northern Island and to exploration and occupation concerning the Southern Island. The British Government approved the measures taken by Hobson in a Declaration dated 17 July 1840. The text of the Treaty of Waitangi and the declarations by Hobson of 21 May 1840 were published in the Official Bulletin in London on 2 October 1840. At this time at the latest, the sovereignty of the British Crown can be regarded as firmly founded. Thus the Treaty is only one of several steps taken to gain sovereignty over the territory of New Zealand. In the history of the signature of the Treaty, the short time of its drafting and in the Maori

of the deliberations is remarkable. However, as a learned was drawn up by amateurs on the one side and other side who understood little of its implications". 19

Treaty

17

The

See for the

Story of

history

source

later put it, "the those on the

signed by

of the signature of the treaty: M i I I e r, New Zealand (1955), 119-125.

(1950),

19

-

27; R e e d,

New Zealand

113 The wording of the speech is reprinted in the (note 4), 641, 714, line 22-40. 19 Te Wahanga Tuatahi" See the study "Kaupapa -

in the Decision Maori Council

v.

Decision Maori Council

v.

Attorney

of the New Zealand Maori Council

Attorney General (note 4), 641,

as

General

quoted

672.

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468

Ehrmann

3. The direct consequences

of the

Treaty

The hope of the British Government, that the Treaty could serve as an instrument of peace and reconciliation between the settlers and the Maori, was not fulfilled in the follow-up. The "New Zealand Company" regarded the Treaty as "a praisewor-

thy

device for

amusing and pacifying savages for the moment"20 and went on with paying any respect to the concerns of the Maori. However,

the settlement without

the British Government felt itself The

signature

of the

Treaty

to

was

be bound

very

sive increase in the number of settlers

lost

more

and

more

of their

to

its treaty

obligations.

In the years after 1840, an explorecorded. In the same time, the Maori

timely.

was

own customs

and

aligned

to

the

European lifestyle.

However, the model of the fathers of the Treaty of Waitangi of tion

was not

a

bi-cultural

na-

achieved.

Nevertheless, the Treaty served

as the starting point for colonial administration of New Zealand. It was originally administered by the Governor territory of New South Wales in Sydney. Only on 3 May 1841, New Zealand gained its

of the

own status as a Crown Colony, and Captain Hobson was appointed the first General Governor of New Zealand. In 1852 the "New Zealand Constitution Act"21

adopted. Up

that time, all the

legislative and executive power was in the Following demands by the settlers for representation, a "General Assembly", consisting of the General Governor, a "Legislative Council" and a "House of Representatives 1122 was established by the Act. However, the authority concerning indigenous people remained solely in the hands of was

to

hands of the General Governor.

the General Governor.

III. The Contents

If the Treaty

o

and their

Interpretation

For the interpretation of the text, it is important to note that there exists an English version as signed and a Maori version as signed. The contents of these two versions differ partly substantially, as has been recognised in various ActS23 and judicial decisionS24 of the recent years. The reason for these differences can be 20 21

See the quote in M c L i n t o c k (note 12), 68. 1852 "Constitution Act", reprinted in: The Public Acts of New Zealand

(Reprint), V61.1,

1908-1931, 997-1002. 22 Following the 1867 "Maori Representation Act", four of the 70 seats in total in the General Assembly were held by Maori. Currently, the 120 seats in Parliament are made up of 60 from General electorates, 5 from Maori electorates and 55 MPs from party lists. In 1993, New Zealand changed its electoral system from a "First Past the Post"-model (FPP) to a "Mixed Member Proportional" (MMP) system. Therefore, the New Zealand Parliament consists of general and Maori electorates. Qualified electors who are New Zealand Maori or descendants of a New Zealand Maori can choose whether they want to vote for a General electorate or a Maori electorate. 23 Compare the Preamble, Paragraph 2 and Paragraph 5 (2) of the 1975 Treaty of Waitangi Act

(New Zealand Statutes 1975, Vol. 2, No. 114, 825, 827) and Art. 4 (3) of the Draft New Zealand Bill of Rights (reprinted in: P a I in e r / C h e n, Public Law in New Zealand [1993], 450). 24 See Maori Council v. Attorney General (note 4), 641, 662, line 28-31; 663, line 28-44; 671, line 41-43; 672, line 5-39; 690-691, passiln; 712, line 47-55; New Zealand Maori Council v. Attorney General, Privy Council, 1994, Vol. 1, NZLR 1994, 513, 514, line 7.

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Status and

seen

in the fact that the

Rights

Treaty

of

Indigenous Peoples

was

in New Zealand

first drafted in

469

English by representatives

of

the British Crown and only subsequently was translated into Maori. The translators faced the problem that some English terms could not be translated into Maori, since the concepts behind the terms were unknown in Maori language and there was no possibility for any understanding of Maori signatories of certain the basis of experience or cultural precedent. Yet the same is true vice deversa. Furthermore, the contents of some Maori terms cannot be precisely of affairs than of a decertain state rather a since fined, descriptions they represent fined concept.25 This problem of the interpretation of a treaty which has been au26 thenticated in two or more languages is well known in international law.. But the terms on

different cultural background of its parties represents yet another problem for the interpretation of the Treaty. Thus, even for the same wording two different interpretations can be given.27 These remarks should serve to set the ground for the

following detailed presentation and interpretation of the Treaty. According to the English version of the first Article, the Maori Chiefs cede all the rights and powers of "sovereignty" over their respective territories to the British Crown. The concept of "sovereignty" was completely unknown to the Maori signatories, consequently there had been no equivalent term in Maori language. It who was only Reverend Williams during his translation work of the English text rather has this modern term coined the Maori term "kawanatanga". In English, the meaning of "government" than of sovereignty.28 It means the power as exercised by a British Governor over the land. It is without prejudice to the chieftainship, the traditional power of Maori Chiefs over their people. This would remain to the Maori. Thus, the two versions differ insofar as according to the Maori version, not the full sovereignty would be ceded to the British, but only part of it.29 The Maori understanding of this ceding of power comes close to a "trusteeship" concerning the

land, which the British will protect.

an expert meeting, which was quoted before Court in the Decision Maori Attorney General (note 4), 641, 672, line 5-22. 26 Following Art. 33 of the 1969 Vienna Convention on the Law of Treaties the meaning which best reconciles the texts, having regard to the objects and purpose of the treaty shall be adopted, see Bernhardt, Interpretation in International Law, in: id. (Ed.), Encyclopaedia of Public International

25

This is the result of

Council

Law 7 27

v.

(1984), 318, 324. Brookfield, Sovereignty: The Treaty, the Courts and the Tribunal, New Zealand Recent

See

Law Review 1989, 292

-

298.

following translations are taken from a translation of the original Maori text of the Treaty by Professor Sir Hugh K a w h a r u, see K a w h a r u (Ed.), Waitangi Maori and Pakeha Perspectives of the Treaty of Waitangi (1989), 313-315 and 319-321. Another explanation of the Maori view of the Treaty can be found at W h a r e p o u r i, The Phenomenon of Agreement: A Maori View, Auckland University Law Review 7 (1994), 603 617. 29 This becomes clear in the famous quote of a Maori Chief during the ceremony of signatures: 28

This and the

-

-

to the Queen, but the substance remains with us", cited in M i I I e r Sinclair (note 12), 71; Sutherland (note 12), 49, 57; "Study on treaties, agreements (note 17), 122; and other constructive arrangements between States and indigenous populations", First Progress Report of 25.08.1992, in: E/CN.4/Sb.2/1992/32, para. 278.

"The shadow of the land goes

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470

Ehrmann

The

English emption" over lets

term

order

version of the second Article

speaks of an exclusive "Right of prewhich the Chiefs will land, yield to the Crown. The use of this think that settlers may enter directly in negotiations with Maori in

one

the

land and that the Crown may pre-empt in those contracts. But it exclusively be sold to the Crown, so that any private land is void until it is derived from the Crown. The term "pre-emption" in

buy

to

rather intends that land will title

to

this

context

is thus somewhat

of

the land

speaks

selling

However, the version

to

inappropriate.30 Accordingly,

the

text

simply

Queen.

of the second Article is that

essence

the Maori

-

according

to

the

English

the

Queen confirms and guarantees to the Maori the full and undisturbed possession of their lands and estates, forests, fisheries and other properties which

-

they

collectively

individually

they wish. holding a title to it is unknown to Maori. Any "relationship" to land is held collectively and not individually. The Maori version thus speaks in this context of "rangatiratanga", which can be translated as "unqualified exercise of chieftainship", meaning that the Maori would be given the complete control according to their customs over the above-mentioned goods. According to the Maori version, these goods are not only their land and villages, but also their "taonga". This term might be translated as treasures" or "all things valuable to Maori people". It refers e.g. to a tribal group's estate, material and non-material, heirlooms and sacred places. Consequently, the interpretation of the first and second Article from the Maori possess

or

so

long

However, the idea of "possession" of land in the

as

sense

of

11

view leads

to

the assertion that

not

all the power

was

ceded

to

the Crown, but that

form of

self-government stays with the Maori.31 The essence of the Treaty is, however, that no land shall be taken away from the Maori, but certain rights of them should be protected. In return, they cede sovereignty to the Crown at least according to the English version. This "quid pro quo" is the heart of the Treaty, but at the same time its difficulty. The third Article is usually not as intensively discussed as the other Articles. It stipulates that Maori will become British subjects and that they will enjoy all the rights and privileges of that status. Since Maori could not have any understanding of the status of a British subject, the Maori version provides that the Queen will protect all the ordinary peoples of New Zealand and will give them the same rights and duties of citizenship as the people of England. The extension of British citizenship to Maori may be considered as a logical consequence of the ceding of sovereignty to the Crown. However, the Maori some

-

30

This

held

by the Privy Council in 1847 in its Decision R. v. Symonds, New Zealand Privy (1840-1931), 387-398 (see for a detailed discussion of this decision infra note 35 and accompanying text). 31 This understanding can be seen in a speech by Henry Sewell, the first Prime Minister of New Zealand: "... it is true, that [the Maori] surrendered to the Queen the 'Kawanatanga' the governoris

Council Cases

-

ship

-

or

sovereignty;

government not

over

but

they

their internal

did

not

affairs,

a

understand that

right

which

exercise", cited by M c L i n t o c k (note 12),

they thereby

we never

claimed

surrendered the or

right

to

exercised, and could

70.

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in

self-

fact

Status and

Rights

of

Indigenous Peoples

471

in New Zealand

emphasizes the aspect of the protection of Maori. This runs parallel original plan of the Colonial Government, that Maori should not have the same rights and duties as British settlers but they should be given the opporform tunity to live according to their own customs in certain districts where they realised. never this was of the plan the majority population.32 However, translation with the

IV The

Development of the Interpretation of Maori Fisheries and other Rights

Land

Rights,

history of New Zealand from 1840 until today the Treaty of Waitangi and the Maori rights experienced a diverse history. Over time the legal status of the the Treaty was considered differently and the changing political attitude towards rights of indigenous people had its influence on the fate of Maori in New Zealand. One might distinguish two phases: Originally the Treaty was disregarded for which might be labelled as the "traditional more than 100 years. This position of important judicial decisions and found number in founded a approach" was the Treaty changed only recently in towards its way into some Acts. The attitude the middle of the 1980s. The Treaty played a decisive role in major judgements and Acts; this development will be presented as the "modern approach". In the

-

-

1.

Traditional

approach

judgements and Acts in the early phase mainly dealt with Maori land rights; other rights. is only one concerning fisheries and none concerning

there

a.

Land

Rights

discussion of Maori land rights is not the Treaty itself, but the "aboriginal title" of the Common law. This legal concept stipulates that inpeople hold a title to use their land and fisheries after a Colonial power The

starting point for

a

digenous has gained sovereignty

over the respective territory by exploration, conquest or cession. However the sovereignty and the property belongs to the Crown, although the Crown only acts as a trustee. This corresponds to the colonial idea that the land is of no use to the indigenous people.33 Thus the property of and the right

to use

32

the land

belong to

different persons. The native

See Art. 71 of the 1852 "New Zealand Constitution Act"

right to

use

the land

(note 21): "And whereas it

expires

may be

ex-

and usages of the aboriginal or native inhabitants of New Zealand, so pedient far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government themselves, in all their relations to and dealings with each other, and that be so observed." particular districts should be set apart within such laws, customs, or usages should 33 the instructions to Captain Hobson (note 16): "To the Natives and their Chiefs much See that the laws,

customs

e.g.

of the Land of the

Country is of no actual use, and, in their hands, it possesses scarcely any exchangeprogressively increased, by the introduction of Cap-

will be created, and then its value able value. ital and of Settlers from this Country."

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472

Ehrmann

if the Crown sells the land

to

settlers

or

if Parliament declares the native title

pired.34 The background

ex-

of this concept of a "native title" is independently from the Common law principle that any title to land must be derived from the Crown. This idea is based on the historical notion that all land belongs to the King and that it was he who gave titles to land during -

the colonial situation

-

feudalism. The first of the

judgement

Supreme

Court

deal with the

to in

the

matter

after the colonisation of New Zealand

plicable

Treaty of Waitangi was the 1847 decision Queen v Symonds.35 The Court held that the body of British Common law is also ap-

The

in this

territory, including the concept of "aboriginal title". It further held solemnly be asserted that the [aboriginal title of the Maori] is entitled to be respected At the same time "... in solemnly guaranteeing the native title the Treaty of Waitangi does not assert either in doctrine or in practice any thing new and unsettled." Thus the Treaty of Waitangi is considered as only of declamatory nature.36 Finally the Court held that the native title has to be that "... it

cannot too

consistent with the

customs

of the Maori.37

This attitude, which confirms the land rights of the Maori as they are based on aboriginal title" and the Treaty of Waitangi, would change substantially 30 years later. The

for this shift have

to be found in the following events of New history in the middle of the 19th century. Because of a growing number of settlers, the demand for land increased. This led to clashes between white settlers and Maori and finally to the so-called "Maori Wars" between 1862 and 1865.38 These wars marked the turning point for Maori land rights. As a result of their defeat the Maori lost vast areas of their tribal land. In the same time the number of Maori population decreased. reasons

Zealand's

34

Compare

(1993),

72

for this concept: J o s

78; B o a s t, Treaty Rights

e

p

h, Constitutional and Administrative

Law in New Zealand

Aboriginal Rights, New Zealand Law Journal 1990, 32 36; M c H u g h, The Constitutional and Legal Position of Maori Customary Land from 1840 to 1865, in: id., Maori Land Laws of New Zealand (1983), 1- 36; comprehensive: M c H u g h (note 8), 67-143. 35 R. v. Symonds 1847 (note 30), 387-398; compare for a discussion of that decision: Williams, The Queen v Symonds. reconsidered, Victoria University of Wellington Law Review 19 (1989), -

or

-

385-402. 36

The

Report 37

2

same

was

(1872),

See supra by its

held

in

Re

and Whitacker

Claims,

New Zealand Court of

Appeals

41-59.

35, R. v. Symonds, 49: "The Crown is bound, both by the Common law of Engsolemn engagements, to a full recognition of Native propriety rights. Whatever the extent of that right by established native customs appears to be, the Crown is bound to respect it. But the fullest measures to respect are consistent with the assertion of the technical doctrine, that all title to land by English tenure must be derived from the Crown, this is necessity importing that the fee-simple of the whole territory of New Zealand is vested and resides in the Crown, until it be parted with by grant from the Crown. In this large sense, all lands over which the Native title has not been extinguished are Crown lands." 38 See Litchfield, Confiscation of Maori Land, Victoria University of Wellington Law Review 1 (1985), 335 360. See for the details of military history: B e I i c h, The Victorian Interpretation of Raland and

note

own

-

cial Conflict (1989).

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Status and

As

a

consequence of the

Rights wars

1865 "Native Land Act 1)40

were

of

Indigenous Peoples

in

473

New Zealand

the 1862 "New Zealand Settlement Act"39 and the that

adopted,

changed

Maori land

rights

substan-

authorised the General Governor to confiscate Maori land for British of retaliation for the rebellion of Maori against the Crown during the war. Furthermore, the right of pre-emption of the Crown was expired by the- Acts, so that settlers could buy land directly from Maori. This led to an explo-

tially. They settlers

as a means

sion in

the number of private land sales.

any

legal

Finally,

there

was

confiscation without

basis.

the Wi Parata

The

Bishop of judgement Wellington Supreme for the assumption of Chief justice Sir James Prendergast that "so far as [the it must be regarded a Treaty of Waitangi] purported to cede the sovereignty that "the so-called he held simple nullity". In the context of Maori land rights, Treaty merely affirms the rights and obligations which, iure gentium, vested in and This obligadeveloped upon the Crown under the circumstances of the case tion which is "not to be regarded as properly a treaty obligation, is yet in the nature of a treaty obligation" .42 The decision recognises the "aboriginal title", but it denies the possibility of its legal enforcement. The Crown alone shall be authorised to decide about the expiration of this title.43 This decision, as the relationship between the Crown and the Maori in general, can not be brought before court, since they represent an "act of state". Although this decision has been intensively criticised in recent time,44 it laid the ground for the traditional approach towards Maori land rights: the aboriginal title" has been recognised formally, but it was not enforceable before The

main

judgement

in

the

Case of the

following

time

was

Court in 1877.41 The

v

became famous

Court.

39 40

The parts of interest in this The parts of interest in this

41

Wi Parata

42

This

context are context are

reprinted in P a I in e r / C h e n (note 23), reprinted ibid., 308.

306

-

308.

Bishop of Wellington, 1877, New Zealand Jurist New Series 3 (1877), 72. confirmed by the Decision in Re the Bed of the Wanganui' River of 1962, NZLR 1962, 600, 623: "This obligation was akin to a treaty obligation ..."; and Re the Ninety Mile Beach of 1963, NZLR 1963, 461, 477: "This obligation was akin to a treaty obligation 43 Wi Parata (note 41): "in the case of primitive barbarians, the supreme executive Government must acquit itself, as bet it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice"; see also Re the Bed of the Wanganui River (note 42), 623: "This obligation was akin to a treaty obligation, and was not right enforceable at the suit of any private persons as a matter of municipal law by virtue of the Treaty of Waitangi itself..."; Re the Ninety Mile Beach (note 42), 477: "This obligation was akin to a treaty obligation and was not right enforceable at the suit of any private persons until carried into municipal law". Compare for a discussion of this assumption: Boast, "In Re Ninety Mile Beach" Revisited: The Native Land Court and the Foreshore in New Zealand Legal History, Victoria University of Wellington Law Review 23 (1993), v.

The

position

was

145 -170 and H a u g h e y, Maori Claims to versities Law Review 2 (1966), 29, 39-42. 44

For

example

it can

Lakes, River Beds and the Foreshore, New Zealand Uni-

be contended that the

relationship

between Maori and the Crown could be

"act of state", since Maori are British subjects according to Article three of the Treaty of and the relationship between the Crown and its subjects can not be an "act of state". an

Waitangi

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474

Ehrmann

This line of arguments was clearly rejected by the Privy Council in the 1901 Nireaha Tarnaki v Baker Case.45 The Privy Council held that: "... it was said in that there is no customary land of the case of Wi Parata v Bishop of Wellington

the Maori of which the Court can take cognisance. Their lordships think that its argument goes too far and that is rather late in the day for such an argument to be addressed of

a

New Zealand Court." In the

opinion of the Privy Council

"it is the

duty of the Courts to interpret the statute which plainly assumes the existence of a tenure of land under custom and usage which is either known to lawyers or disPrivy Council went one step further in the Walby stating: "As the law then stood under the treaty of Waitangi, the chiefs and tribes of New Zealand, and the respective families and individuals thereof, were guaranteed in the exclusive and undisturbed poscoverable

lis

v

evidence". Later the

by

Solicitor General Case of 190346

of their lands so long as they desired to possess them 11.47 However, the Bench and the Bar of New Zealand protested sharply against this decision in an unprecedented move.48 New Zealand's judges did expressly not follow the Privy Council in this question. Quite the reverse, the line of the Wi Parata Decision was codified. Paragraph 84 of the 1909 "Native Land ACt"49 and session

otherS50

stipulate

that the Native title is

not

enforceable before

court.

rights, which can be based on "aboriginal title" and Article Two of the Treaty of Waitangi, represent only political and moral obligations for the Crown, which are not legally enforceable. In contradiction to the wording of the Treaty of Waitangi, Maori rights were hence not actually protected. Thus the Maori land

b. Fisberies

rigbts

only one judgement in the early history of New Zealand dealing with native fishing rights, the Kauwaeranga Decision5l of the Native Land Court52 from 1870. It is the only decision of that time which stands in contradiction to the There is

45

Nireaha Tamaki

v.

Baker, Privy Council, 1901,

New Zealand

Privy Council

Cases

(1840-1931),

371-386. 46

Wallis

173-189

v.

Solicitor General of 1903, Privy Council, The Law Report in: New Zealand Privy Council Cases [note 45], 23-36).

Appeal

Cases

(1903),

(reprinted

47

Ibid.,

48

Protest

179.

of Bench and Bar, reprinted in: New Zealand Privy Council Cases (note 45), 730-760. Reprinted in: P a I m e r / C h e n (note 23), 317 et seq. 50 Paragraph 112 of the 1931 "Native Land Act" (reprinted in: The Public Acts of New Zealand [note 211, 103 354); Paragraph 155 and Paragraph 157 (1) of the 1953 "Maori Affairs Act", New Zea49

-

land Statutes 1953, Vol. 2, No. 94, 1067-1307. 51

Kauwaeranga (note 13),

52

The "Native Land Court"

(note 40).

Later it

was

229-245. was

established

by

renamed "Maori Land Court"

Art. V and VI of the 1865 "Native Land Act"

by

the 1953 "Maori Affairs Act" (New Zealand [1]). It shall decide about contentious land

Statutes 1953, Vol. 2, No. 94, 1067-1307; Part V, Para. 15 titles between Maori based on equity. See for the historic role of that institution:

Gilding, Engine

of Destruction? An Introduction

to

of the Maori Land Court, Victoria University of Wellington Law Review 24 (1994), 115-139; Gilling, By whose Custom? The Operation of the Native Land Court in the Chatham Islands, Victoria University of Wellington Law Review 23 (1993), 45-58.

the

History

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Status and

line of

thinking

lost from

sight

Rights

of

shown above.

as

for about

a

Indigenous Peoples

original document rediscovered only recentl Y.53

Remarkably enough,

century and it

was

475

in New Zealand

the

was

This decision is contrary to the prevailing attitude, both as far as the cession of is concerned and as the Maori rights are concerned. Judge Fendon em-

sovereignty

phasised in his preliminary remarks the role of fishing in the life of Maorl.54 For a people of sailors, fish were the main food, thus fishing rights have a more prominent role than land rights. In regard to the Maori rights, the Court held that "especially remembering the very clear and almost stringent nature of the instructions given to

to

Captain Hobson, that

it

aborigines guarantee to then exercised in a full and

they

of them

was

parties to the compact of whatever territorial rights

the intention of both

the continued

the

perfect

exercise

manner,

until

they thought fit

to

dispose

the Crown." However, the Kauwaeranga Decision remained the only judgement that has recognised the protection of Maori rights based on the Treaty of Waitangi. The bato

sis for the official

position concerning Maori rights was founded unchanged for almost a century.

in the Wi Parata

Decision and remained

2.

Modern

approach

in the last quarter of this century, that the Treaty regained some importance. This could first be seen in the fact that February 6th, the day of the signature of the Treaty of Waitangi, was made an official national holiday by the 1960 It

was

only

"Waitangi Day Act,1.55 tangi Act" in 1975.56

Yet the landmark

was

the

adoption

of the

"Treaty

of Wai-

of this Act was the establishment of the "Waitangi Tribunal" to and confirm the principles of the Treaty of Waitangi.57 According to the promote Act as amended58 the Tribunal has mainly two functions. On the one hand, it shall The

53

core

The Decision

reprinted in the official New Zealand Law Reports. Only recently, in University of Wellington Law Review, see the preliminary remarks by F r a m e with regard to the Kauwaeranga Decision (note 13), 227 et seq. 54 Ibid., 240: "it is very apparent that a place which afforded at all times, and with little labour and preparation, large and constant supply of almost the only animal food which they could obtain, was of the greatest possible value to them; indeed a very much greater value and importance to their existence than any equal portion of land on terra firma." 55 1960 "Waitangi Day Act" (New Zealand Statutes 1960, Vol. 1, No. 46, 343-344), abolished by the 1973 "New Zealand Day Act" (New Zealand Statutes 1973, Vol. 1, No. 27, 383 -387), abolished by the 1976 "Waitangi Day Act" (New Zealand Statutes 1976, Vol. 1, No. 33, 85-390). 56 1975 "Treaty of Waitangi Act", New Zealand Statutes 1975, Vol. 2, No. 114, 825-833. 57 See the official long title of the 1975 "Treaty of Waitangi Act" (note 56): "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." 58 The sections concerning the Tribunal were amended by the 1985 "Treaty of Waitangi Amendment Act" (New Zealand Statutes 1985, Vol. 2, No. 148, 1335-1339), the 1988 "Treaty of Waitangi Amendment Act" (New Zealand Statutes 1988, Vol. 4, No. 233, 2989-2996) and the 1988 "Treaty of Waitangi (State Enterprises) Act" (New Zealand Statutes 1988, Vol. 2, No. 105, 881-902). 1984

it was

was

reprinted

not

in the Victoria

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476

Ehrmann

deal with Maori claiMS59 if

they feel that the government has acted against the of the since 1840.60 After hearing a claim, the Tribunal may give Treaty promises recommendations how to settle the claim or to compensate for any breach of the Treaty. 61

These recommendations

Tribunal thus the other

only

has

a

are not

fact-finding

hand, the Tribunal shall

tangi of every Act submitted to it Thus the Tribunal does not act

for 1 legally binding

the Government, the

and consultative function in this

review the

compliance

with the

regard. On Treaty of Wai-

Parliament.

by

Court.62

It does not consider whether any Act of government constitutes a breach of.the wording of the Treaty of Waitangi as a binding legal obligation, it can only consider whether it is inconsistent with as a

the, "principles" of the

Treaty. Nor is it authorised to take any binding decision. the influence of the work of the Waitangi Tribunal on Government However, in Maori affairs and on the jurisprudence of courts is of high importance.63 policy A good number of Tribunal reports have led to the drafting of new Acts for the amelioration of the legal position of Maori. As the Court of Appeal held in a 1991 59

The number of claims has increased

(see J o s e p h [note 34], 64), of Wellington Law Waitangi Tribunal

In 1989 there were 102 claims pending i e, Background Paper, Victoria University and in 1997 it were 676 claims (see the journal of the

(see

[19951, 97, 101) Manutukutuhu" No.

41,

January

Review 25 "Te

drastically:

1995 451

in

Du

r

July 1997,

that

can

be

downloaded

from

http://www.knowledge-basket.co.nz/waitangi/manu). 60

6 (1): "Where any Maori claims that he or any Group of Maoris of which he is a likely to be prejudicially affected (a) By any Act, regulations, or Order in Council, for the time being in force; or (b) By any policy or practice adopted by or on behalf of the Crown and for the time being in force or by any policy or practice proposed to be adopted by or on behalf of the Crown; or (c) By any act which, after the commencement of this Act is done, omitted, or proposed to be done or omitted, by or on behalf of the Crown, and that Act, regulations, or Order in Council, or the policy, practice, or act is inconsistent with the principles of the Treaty, he may submit that claim to

Paragraph

member is

or is

-

-

the Tribunal under this section." 61

The reports of the Tribunal

can

be downloaded from

http://wwwknowledge-basket.co.nz/

waitangi/. 62 Considering the question, whether a report of the Tribunal constitutes res Judicata, the Court of Appeal has pointed out in its 1990 decision in the matter Te Runaga o Murl'Whenua Inc v. Attorney-General (NZLR 1990, Vol. 2, 641-657, 651, line 46 652, line 3): "The crucial point is that the Waitangi Tribunal is not a Court and has no jurisdiction to determine issues of law and fact conclusively. Under section 6 of the 1975 Act it may make findings and recommendations on claims, but these findings and recommendations are not binding on the Crown of their force. They may have the effect of contributing to the working out of the content of customary and Treaty rights; but if and when such rights are recognised by the law it is not because of the principle relating to the finality of litigation. Thus a Waitangi Tribunal finding might well be accepted by a Court as strong evidence of the extent of customary title; but unless accepted and acted on by a Court it has no effect in law. If accepted and acted on by the Court, it takes effect because the Court is determining the extent of legal rights in applying, for instance, the legal doctrine of customary title. The Court's decision will operate as res judicata, but not the finding of the Tribunal." 63 See for the role of the Tribunal the comments of its Chief Judge Talhajurie D u r i e, in: The Waitangi Tribunal Its Relationship with the Judicial System, New Zealand Law Journal 1986, 235 238; D u r i e / 0 r r, The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence, New Zealand Universities Law Review 14 (1990), 62-81; Background Paper, Victoria University of Wellington Law Review 25 (1995), 97-108; O'Keefe, Waitangi Tribunal "Decision", New Zealand Law Journal 1983, 136. -

-

-

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Status and

decision,

formity

"...

at

Rights

the present

with the

of

day the

Indigenous Peoples Crown

as a

treaty partner, could not act in contaking into account any relevant

without

its

Treaty principles by the Waitangi Tribunal."64 or

recommendations

the central role in

477

in New Zealand

the

and

Thus the

Waitangi Tribunal plays its

principles. Starting from the middle of the 1980s, one can find a number of initiatives to promote the Maori rights and the principles of the Treaty of Waitangi by political pro65 judicial decisions, Acts and Bills and recently through direct negotiations grams, and settlements between Maori Tribes and the Government.66 This development runs parallel to the rethinking of the rights of indigenous people world-wide. Whereas at the international level there have been calls for a legal instrument to pro" tect the rights of indigenous people,67 in New Zealand Maori as well as Pakeha", i.e. New Zealanders with European ancestors, recollected the Treaty of Waitangi. The Treaty was considered as a legal instrument for the protection of the Maori rights with mutual obligations between the Crown and the Maori as equal partners. This swing of opinion can e.g. be seen in the fact that Maori terms, especially those of the text of the Treaty itself, were used in judicial decisions and in Acts.68 This modern approach deals less with land rights than the traditional approach did. It focuses more on fisheries and other rights, especially cultural values. The argument, that the Maori rights are not enforceable before court,69 does not hold not true for those non-territorial rights. interpreting

Treaty

a.

Land

promoting

rights

Although there was an intense discussion about land rights in literature 70 it was only in 1993 that a Court was given the opportunity to decide again in this question. 64

Attorney General v.

New Zealand Maori' Council General, No. 1, Court of Appeal, 199 1, NZLR 2, 129, 13 5, line 45 48 (See for a detailed discussion of this decision infra note 113 and accompanying text.) See also P a I me r, Unbridled Power (1989), 20. 65 See e.g. the 1989 "Principles for Crown Action on the Treaty of Waitangi", reprinted in: F r am e, A State Servant Looks at the Treaty, New Zealand Universities Law Review 14 (1990), 82, 87. 66 See for an overview of the recent developments: S u t t o n, The Treaty of Waitangi Today, Victoria University of Wellington Law Review I I (1981), 17- 40; B e r r y in a n, The Fourth World in the First World the Maori in New Zealand, Sri Lanka journal of International Law 2 (1990), 37-58; H a v e in a n n, "What's in the Treaty": Constitutionalizing Maori Rights in Aotearoa/New Zealand 199 1, Vol.

-

-

(Ed.), Legal Pluralism and the Colonial Legacy (1995), 73-101; a comprejurisprudence can be found at Kenderdine, Legal Implications of Treaty Jurisprudence, Victoria University of Wellington Law Review 19 (1989), 347-383. 1975-1993,

hensive

in:

Hazlehurst

overview

of the

67

See

68

See e.g. the 1990

infra

note

recent

165.

"Runanga

Iwi Act" of 31.08.1990

(New Zealand Statutes 1990, Vol. 3,

No. 125,

1755-1781). 69 70

See supra note 50 and accompanying text. See H o I m e s, Fragmentation of Maori Land, Auckland

University Law Review 1 (1967), 1-19; Development with Particular Reference to Land Development at Poutu, Northland, Auckland University Law Review 3 (1976-1979), 291-305; M c H u g h The Fragmentation of Maori Land (1980); i d., The Contemporary Maori Land Laws of New Zealand, in: id., Maori G

a

I

v

i n, Maori Land

Land Laws of New Zealand

journal 1990,

(1983),

39

-

79; 1 d., The Role of Law

in

Maori

Claims,

New Zealand Law

16-20.

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478

Ehrmann

In the Te

Runanganul

o

Te Ika Whenua Inc Society

v

Attorney- General Decision7l

the Court of Appeal held that the

"aboriginal title", which is identical to the "Maori the is title", Treaty of Waitangi. Quoting the SymondS72 and protected by customary Nireaha Tamaki customary title

v

Baker Decisions 73 the Court

corresponds

to

the

rights

as

b. Fisberies

came to

the conclusion that this

they are guaranteed

in the

Treaty.74

rigbts

to land rights, Maori fisheries rights have been neglected by jurisprulong time.75 However, the Fisheries Act, although amended, contained all the time a paragraph saying: "Nothing in this Act shall affect any Maori Fishing rights,,.76 This regulation was of crucial importance in the 1986 Decision of the High Court Christchurch in the matter Te Weehi v Regional Fisheries Officer.77 The facts of this ground-breaking decision for the Maori fisheries rights were the following: Mister Te Weehi, a Maori, had been charged for fishing in a certain area in

Contrary

dence for

a

contradiction

to

the 1983 "Fisheries Act". To defend himself, he referred

to

a

tra-

ditional customary Maori fishing right for this area, stating that therefore he may not be charged because of the above-mentioned paragraph. The Court affirmed

position. It held that Te right. This "aboriginal title"

fishing on the basis of a customary only expired by an Act of the Crown or Parwhich the here. The not was case liament, expiration of a title to the coastal land without the both exist independently. since is prejudice to fishing right, As precedents, the Court quoted the 1870 Kauwaeranga Decision78 and the 1847 Symonds Decision79. As has been seen above, these were the only decisions in contradiction to the prevailing opinion. The Court did not neglect the Wi Parata Decision80, nevertheless it considered that judgement of minor importance. This change in jurisprudence regarding the recognition of the "aboriginal title" was confirmed by following decisionS81 and applauded by comments by publithat

71

Te

Runanganul

o

74

75

Ibid., 24, line 8; compare Ibid., 27, line 30-31.

76

in fact

be

Society

v.

to

the

to

the Nireaha Yamaki

Symonds Decision, v.

Attorney- General,

Court of

supra note 35. Baker Decision, supra

note

Appeal, 1993,

45.

only exception is the 1870 Kauwaeranga Decision of the Land Court, see supra note 13. development of Fisheries Rights: H a u g h e y (note 43), 29 42; D e w e s, Fisheries A Study of an Outcome, Victoria University of Wellington Law Review 25 (1995), 219-230. See e.g. Paragraph 88 (2) of the 1983 "Fisheries Act", New Zealand Statutes 1983, Vol. 1, No. The

See for the

Case

was

can

Te Ika Whenua Inc

NZLR 1994, Vol. 2,20-27. 72 Ibid., 24, line 6; compare 73

Weehi

-

14,79-160. 77 Te Weebi

-

693. v. Regional Fisheries Officer, High Court Christchurch, NZLR 1986, Vol. 1, 682 Ibid., 686, line 49 687, line 14, see for the Kauwaeranga Decision supra note 13. 79 Ibid., 687, line 15-30, see for the Symonds Decision supra note 30. 80 Ibid., 687, line 50, see for the Wi Parata Decision supra note 41. 81 See the 1990 Decision of the High Court Wanganui in the matter Green v. Ministry ofAgriculture and Fisheries (NZLR 1989, Vol 1, 411-415) and the 1990 Decision of the Court of Appeal in the matter Te Runaga o Muriwhenua Inc v. Attorney- General (note 62, 641, 655, line 32-44). -

78

-

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Status and

CiStS,82 to

who had

Rights

change paragraph, which

pressiS verbis. Besides the

Indigenous Peoples

previously influenced this

be noted that this

mentioned

of

in

position

in New Zealand

479

thinking.83 However, it has only possible because of the aboveprotection of Maori fishing rights

new

line of

was

mentioned the

ex-

private use, which was the subject of the Te Weebi Decision, the modern fishing industry developed as a matter of contention between Maori and the Crown. In the historical situation, the Treaty of the Maori Waitangi was only speaking of the limited fishing by individuals,, but modern of the of the industry. share fishing their addition in claimed profits now individuals for their

fishing by

problem for a number of by comprehensive agreement, according to which the years. It is now Maori abstain from any further claims of their rights after being promised their share of the profits.84 The starting point for this development were the regulations of the 1986 "Fish86 ,85 which provided for specific fishing quotas. These quo eries Amendment Act and the Maori between tas were criticised by the Maori, which led to negotiations "87 Act This was adopted. Crown. In consequence the 1989 "Maori Fisheries Act aimed "at making better provision for the recognition of Maori fishing rights secured by the Treaty of Waitangi 11.88 It provided for a 10 % quota of the fish or established by its profit, which shall be ceded to a "Maori Fisheries Commission",

jurisprudence

and Parliament tried settled

to

cope with this

a

that Act.89

number of claims before the Waitangi Tribunal, the High Court and the Court of Appeal,90 Maori argued that this quota was inconsistent with the Treaty of Waitangi. This led to direct negotiations between Maori and the Crown to settle the participation of Maori in the context of commercial fishing and the status of Maori rights comprehensively. After intense debate, the so-called "SeaIn

a

fishing

lord Deal" between the Government and Representatives of six Maori tribes was adopted on 23 September 199291. This agreement provided inter alia, that the 82

M

c

H u g h,

Aboriginal Title

Returns

to

New Zealand

Courts, New Zealand Law journal 1987,

39-41, id. (note 8), 130-132.

McHugh, Aboriginal Title in New Zealand Courts, Canterbury Law Review 2 (1984)5 Tidal Waters, Victoria University of Wel1 d., The Legal Status of Maori Fishing Rights in Maori 1 14 Review d., Fishing Rights and the North American Indian, (1984), 247-274; lington Law itself: note 77, Otago Law Review 6 (1985), 62-94. This influence has been recognised by the Court 83

235

-

265;

691, line 49-92, line 4. 84 See for an overview of this

development F r a m e (note 65), 82, 92 96; M i k a e r e, Maori Issues Law Review Recent Zealand 1993, 308, 309-313; id., Maori Issues, New Zealand Recent New 1, Law Review 1994, 162, 171-173; R o b i n s o n, The Sealord Fishing Settlement: An International Perand spective, Auckland University Law Review 7 (1994), 557 577; M u n r o, The Treaty of Waitangi the Sealord Deal, Victoria University of Wellington Law Review 24 (1994), 389-430. -

-

85

1986 "Fisheries Amendment

86

Ibid., Paragraphs

28B

-

Act", New Zealand Statutes 1986, Vol. 2, No. 34, 465-528.

28ZC.

Act", New Zealand Statutes 1989, Vol. 4, No. 159, 2648-2701.

87

1989 "Maori Fisheries

88

See the official

89

Ibid., Paragraphs

90

Te Runaga o Muriwhenua Inc v. Attorney- General (note 62), 641-657. The "Memorandum of Understanding" is reprinted in NZLR 1993, Vol. 2, 301, 309-322.

91

long

title of this Act,

ibid.,

2649.

8-11.

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32 Za6RV 59/2

480

Ehrmann

Government shall put NZ

them

in a

joint

$

150 million92 at

pany in the fishing Maori 20 percent of

the

disposal

of the Maori

to

assist

"Sealord Products

purchase Limited", the largest comof New Zealand. In industry addition, the Crown shall give

venture to

new species quota, in addition to the 10 percent of previous quota. In return, the Maori who signed agreed that all fishing rights are extinguished93 and all current and future claims thereto shall be satisfied. They agreed to discontinue their current court actions relating to fisheries and to take no more

proceedings. Furthermore, the Waitangi Tribunal shall have no further say on commercial fishing matters. Finally, they agreed to abolishing the above mentioned Paragraph 88 (2) of the 1983 "Fisheries Act", which provides for the protection of Maori fishing rights.94 The transformation of this agreement into an Act was seriously criticised by some Maori tribes. They argued that the agreement was negotiated only by parts of the Maori population, which had no mandate to represent all Maori. Furthermore, they criticised that current as well as future claims in respect to commercial fishing shall be satisfied and that the regulation is prejudicial to future claimants. However, these objections were not successful. The Court of Appeal refused in its 1992 Decision in the

matter

General%

in an

to

intervene

Te

Runanga

ongoing

o

Wharekauri Rekohu Inc

parliamentary

v

Attorney-

process. Likewise the Wai-

tangi Tribunal had no substantial doubts that the agreement is contrary Treaty of Waitangi.96 It only recommended that the possibility for judicial should

not

be restricted

The settlement

to

the

extent as

to

the

review

planned.

transformed into law by the 1992 "Treaty of Waitangi Fisheries Claims Settlement Act-97. Besides the extinction of Maori fishing rights as noted above, this Act provided for a reconstruction of the "Maori Fisheries Comwas

mission,,98 into the

"Treaty of Waitangi Fisheries Commission". This institution is for the allocation of the commercial fishing profits. This agreement and its transformation into an Act seemed to have settled the

responsible

between the Crown and the Maori. However, it gave rise to contentions between the Maori tribes themselves concerning the allocation of the profits. First,

dispute

92 1,447 NZ Dollar are equivalent to Zealand at http://wwwstats.govt.nz/).

one

US Dollar

(see the homepage of the Government of New

93

Note 91, Paragraph 5.1: "Maori agree that his Settlement Deed, and the settlement it evidences, satisfy all claims, current and future, in respect of, and shall discharge and extinguish, all commercial fishing rights and interests of Maori whether in respect of sea, coastal or inland fisheries (including any commercial aspect of traditional fishing rights and interests), whether arising by statute Common law (including customary law and aboriginal title), the Treaty of Waitangi, or otherwise, and whether or not such rights or interests have been subject of recommendation or adjudication by the Courts or the Waitangi Tribunal."

shall

94 95

Supra note 76. Te Runanga o Wharekauri Rekohu

Inc

v.

Attorney- General,

Court of

Appeal, 1993,

NZLR

1993, Vol. 2, 301-322. 96

Fisheries Settlement

97

1992

"Treaty

of

Report of 4.11.1992 (Wai 307) (compare note 61). Waitangi (Fisheries Claims) Settlement Act", New Zealand

Statutes 1992, Vol.

3, No. 121, 1881-1901. 98

Supra

note

89.

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Status and

Rights

of

Indigenous Peoples

in New Zealand

481

the scheme of the allocation, i.e. the division of benefits amongst the various Maori groups entitled became a matter of dispute. The background for this contention was

the

question in

which descent groups may represent the holders of custribes a district. The commission planned to prefer the

tomary fishing rights who live in a coastal area. Second there was a set of questions concerning representation, e.g. which tribe can speak for an area or what body can speak for Maori cities without at the national level. Finally, the allocation to Maori who live in the

relationship to a tribe became a problem. Following some claims before the Waitangi Tribunal and the High Court, the matter was brought before the Court of Appeal in 1996.99 The Court held that the profits may not only be alloany close

the entire Tribes. However, the Court refrained from regulating the details of the modalities of the allocation. It held that "it is the responsibility of Maori and a test of Maori to rise to the challenge of working out a

cated

to

the Chiefs but

to

surely not insuperable problem."100 "Sealord"-Agreement represents a highly remarkable development and a historic event. It follows an innovative and pragmatic approach. It was the first time that Maori representatives and the Crown entered into direct negotiations at the national level. This implied the recognition of the Maori as equal partners and of Maori rights. However, the agreement involves a number of difficult questions. The dissolution for Maori of this difficult but

The

cussions between Maori tribes in the aftermath of the agreement showed that the Maori population does not represent a uniform bloc. The most difficult question,

promising way that Maori discharge their ongoing legal positions and thus in some kind end the obligations of the Treaty of Waitangi in return for a share in commercial profit. One might comment that Maori have sold their rights. It remains doubtful whether such values can be traded. Despite those doubts the "Sealord" Agreement served as a precedent for other settlements to satisfy and compensate Maori claims. On 8 December 1994 the Government announced it would provide NZ $ 1 billion101 for a "full and final settlement" of all claims based on the Treaty of Waitangi.102 This sum should serve for the resolution of all historical grievances and debate.103 Maori past losses of Maori. The proposal raised an intense political themselves rather rejected it;104 for example, they argued that there is no clear forhowever, might be whether it represents

a

99 Te Runanga o Muriwbenua and Others v. Te Runanganut o Te Upoko o Te Ika AssoCiXion Inc and OtherslJackson and Others v. Treaty of Waitangi Fisheries Comission and OtherslTe Runanga o MuriWhenua and Others v. Treaty of Waitangi Fisheries Comission and Others, NZLR 1996, Vol. 3,

10-23. 100

Ibid., 20, line 12-27, especially line

25-27.

The gross national product in 1995 was NZ $ 81,822 millions (see the homeNew Zealand at http://wwwstats.govt.nz/). of of the Government page 102 "Government's Proposals For the Settlement of Treaty of Waitangi Claims"(" Fiscal envelope"). 101

For

103

See supra note 10. D u r i e, Proceedings of

a

comparison:

at Hirnagi Marae, Turangi, Victoria University of WellingMaori Issues, New Zealand Recent Law Review Mikaere, ton (1995), 109-117; 1995, 137, 153 -155; H a r r i s, Full and Final Settlement of Treaty Grievance: The Crown's Constitutional Agenda, Auckland University Law Review 8 (1996), 205-208. 104

a

Hui held

Law Review 25

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482

Ehrmann

mal definition of the term "Maori".105 It remained unclear whether Maori who lost their traditional way of living were in a position to receive compensation. Yet the main objection was that the settlement should be "final". Instead of interpret-

ing the principles of the Treaty according to the circumstances of a given situation for the future, all claims should be settled for the past. The further development of this proposal remains to be seen. The

most recent

Tahu Act"

25

on

development

September

in

this

context was

the

1997 which transforms the

adoption

"Ngal

of the

tlement" of 14 June 1996 between Ngai Tahu, the Maori tribe living South Island, and the Government.106 Negotiations were recommended

Waitangi Tribunal Ngai Tahu against

"Ngai

Tahu deed of

set-

on

the

by

the

in. 1991. The agreement should serve to settle claims of the the Crown dating back from 1847. It consists mainly of three

elements.107 First, the Crown Tahu

Ngai

apologises formally and will apologise publicly to acknowledges that it acted unconscionably and in repeated principles of the Treaty of Waitangi in its dealings with Ngai Tahu.

as

breach of the

it

Second, it will pay the settlement amount of NZ $ 117 million as compensation. Third, it will transfer back certain assets like farmlands and forestry. The most the highpart of that agreement is the vesting back of Mount Cook mountain of New Zealand the under Maori to its Maori name "Aoraki". This mountain is of special significance to the Maori since it represents one of

prominent

-

est

the

-

cultural

of the Maori. In return, the Maori tribe the Crown, on behalf of the people of New Zealand, in order that Aoraki/Mount Cook will remain and continue to be part of the corresponding National Park. most

important

makes the mountain

105

M

c

Gui

r

e,

a

gift

Reflections

on

treasures

to

the Formal Definitions of Maori, New Zealand Law

Journal 1995,

d., The Concept of "tangata whentia" and Collective Interests, New Zealand Law Journal 1996, 28-34; id., A Theory for a More Coherent Approach to Eliciting the Meaning of the Principles of the Treaty of Waitangi, New Zealand Law Journal 1996, 116-120. 106 The very detailed text of the Act is available at http://wwwexecutive. govt. nz/minis ter/gra168 -172; i

ham/ngai-tahu/content/index.html, see also O'Regan, A Ngai Tahu Perspective on Some Treaty Questions, Victoria University of Wellington Law Review 25 (1995), 178-194. 107 Ibid., Paragraph 2.1: (1) "The Crown acknowledges that it acted unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngai Tahu and purchases of Ngal Tahu land. (2) The Crown acknowledges that, in breach of Article Two of the Treaty, it failed to preserve and protect Ngai Tahu's use and ownership of the land and valued possessions as they wished to retain. (3) The Crown recognises that it has failed to act towards Ngai Tahu reasonably and with the utmost

faith

(4) (5) The

in a manner

consistent with the honour of the Crown.

Crown expresses its

profound regret and apologises unreservedly to all members of Ngai suffering an hardship caused to Ngai Tahu (6) The Crown apologises to Ngai Tahu for its past failures to acknowledge Ngai Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngai Tahu as the tangata whenua of, and as holding rangatiratanga Tahu

or

the

within, the Takiwa of Nga, Tahu Whanui. (7) ".

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Status and

Rights

of

Indigenous Peoples c.

Other

483

in New Zealand

rights

Besides the land and fisheries

rights discussed above, the debate currently focuses on rights" guaranteed in the Treaty of Waitangi. The English verof Article Two speaks of "other properties", whereas the Maori version sion speaks of "taonga", which can be translated as "treasures".1013 But "taonga" can also include non-material values like the cultural identity of Maori and intellectual property. According to a decision of the High Court Wellington, even the spiritual relationship of Maori to a specific river represents "taonga", when Maori consider that river as the symbol of their tribe and the source of life.109 Of special importance for the recognition of a minority is the recognition of their language.110 The Maori language was recognised as an official language of New Zealand by the 1987 "Maori Language Act". Following a recommendation from the Waitangi Tribunall" the Act recognises that the Maori language is part of their cultural heritage and thus represents "taonga", so that the Treaty of Waitangi obliges the Crown to recognise and protect it. This requires affirmative action for the promotion of the Maori language. The Act provides that any person who wishes to do so may use the Maori language in all courts and in any dealings with government departments, local authorities and other public bodies. However, Maori is not recognised as an official language for education. Finally, a national commission for the Maori language shall be established. The recognition of Maori as an official language also had consequences for the public broadcasting policy. In a 1986 report the Waitangi Tribunal emphasised the importance of broadcasting in Maori for the promotion of that language and consequently for the Maori culture. Therefore, the minister of broadcasting is obliged to consider appropriately that aspect in the allocation of radio frequencies.112 In 1991 the Court of Appeal confirmed that the minister in charge is obliged to duly consider that recommendation of the Waitangi Tribunal.113 the "other

108 109 v.

See supra note 28. See the 1987 Decision of the

Waikoto

of this decision 110

High

Court

Wellington

in

the

matter

NZLR 1987, Vol. 2, 188, 194, line 18-27 157 and accompanying text).

Valley Authority,

infra

note

4,2 % of New Zealand's

Huakina

Development

(see for

detailed discussion

a

Trust

Maori. At the 1996

census out of the total populathey speak Maori besides English. English (see the homepage of the Government of New Zealand at http://wwwstats.govt.nz/). See for the Maori language: Williams, Maori Issues 11, New Zealand Recent Law Review 1990, 129, 136 -138; To in a s, The Maori Language The Chiefly Language of Aotearoa The Long Struggle, in: Bird/Martin/Nielsen (Eds.), Majah Indigenous People and the Law (1996), 152-189. 111 See the 1986 Report of the Waitangi Tribunal on the Te Reo Maori Claim (Wai. 11) (compare

tion

population speak

number of 3.618.303 persons 140.886 persons answered that 12.783 persons answered that they speak Maori, but do not speak a

-

-

-

note

61);

compare further

Zealand Maori Council 112

this

context

the 1996 Decision of the Court of

Appeal

in the

matter

New

Attorney General (NZLR 1996, Vol. 3, 140, 146, line 7-46). See Report of the Waitangi Tribunal on Claims Concerning Allocation of Radio Frequencies

(Wal. 26 113

in

v.

150), 1990 (compare 61). Attorney General v. New Zealand

&

See

ney General

v.

New Zealand Maori Council

Maori Council

General,

General, No. 1 (note 64), 129-146;

Attor-

No. 2, NZLR 1991, Vol. 2,147-149.

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484

Ehrmann

The

principles of the Treaty were finally important for the decision of the Court Appeal concerning the privatisation of the public broadcasting company-114 Maori claimed that the Crown is prevented from selling the public broadcasting company by its obligation derived from the Treaty to protect and promote the Maori language. Otherwise it would lose its influence on the broadcasting policy. However, the Court held that the protection of Maori culture is not an absolute objective for Government policy, but may be weighted with other obligations and policies of the Government. Among these aspects are fiscal considerations. The of

Court found that the Government

had fulfilled its

Treaty obligations

grams. Thus the Court felt

lic

broadcasting V

was

not

in

to

under fiscal constraints protect the Maori

position

a

to

stop the

at

that time. Still it

language by other proprivatisation of the pub-

company.

"Principle of Partnership"

as

the Core

of the Treaty of Waitangi

This

policy of privatisation of state-owned enterprises in the 1980s led the Appeal to develop comprehensive principles for the relationship of New Zealanders of Maori and of European descent in its 1987 leading case Maori Council v Attorney General.115 This case has been considered by the Court itself116 "perhaps as important for the future of our country as any that has come before a New Zealand Court" and as a "century case" by learned comments.117 The Court had to consider quite a minor question of interpretation of the 1986 Court of

"State Owned Enterprise Act".118 This Act was one of the main instruments of the New Zealand's Labour Government policy of a comprehensive privatisation of state owned enterprises, assets, properties and forests. This policy has been a

complete fare

state

turn-about in New Zealand's economic policy, which favoured the welfor decades. Maori claimed that the Crown would hence loose its influ-

in

virtually every policy area and thus its possibility to protect Maori interests according to the Treaty of Waitangi. Thus Paragraphs 9 and 27 were inserted in the State Owned Enterprise Act, which now represent the subject of the dispute. Paragraph 9 stipulated: "Nothing ence

in this Act shall

permit the

Crown

to act

in

a manner

which

is

inconsistent with

the

principles of the Treaty of Waitangi". Paragraph 27 provided for a very detailed procedure how properties could be sold after hearing the Waitangi Tribunal. However, the "New Zealand dure did

114

not meet

the

Maori Council"

requirements

of

was

Paragraph

of the 9. It

opinion that

thus put the

this procebefore

matter

See New Zealand Maori Council

v. Attorney General, 1992, NZLR 1992, Vol. 2, 576-603; Attorney General (note 110), 140-189 referring to New Zealand Maori Council v. Attorney General 1994 (note 24), 513 526. 115 Maori Council v. Attorney General (note 24), 641- 719. 116 See President C o o k e, in: ibid., 65 1, line 11 et seq. 117 B o a s t, Maori Council v. Attorney General: A Case for the Century?, New Zealand Law journal 1987, 240-245. 118 1986 "State Owned Enterprises Act", New Zealand Statutes 1986, Vol. 3, No. 124, 1306-1379.

New Zealand Maori Council

v.

-

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Status and

Rights

Court for clarification and

of

Indigenous Peoples

judicial

485

in New Zealand

review. The Court held that

paragraph

27

was

indeed insufficient

to protect the principles of the Treaty of Waitangi. In consequence the Government negotiated a new procedure, which was laid down in the 1988 "Treaty of Waitangi (State Enterprises) Act"119.

In their unanimous decision the

judges developed

between New Zealanders of Maori and of

Treaty of Waitangi.120 starting point for their argument translations the

are not

the

principle as

of

partnership

the fundamental

of the

principle The

the

European descent

one

meaning.,,121 However,

same

of

do

was

that "the

of the other and do

not

English and the Maori texts necessarily convey precisely

"the differences between the

texts

and the shades

for the purposes of this act. What matters is the spirit." of the Treaty are to be applied, not the literal words".122 Of

meaning principles these principles, the principle of partnership represents the most important one. This principle provides that the New Zealanders of European and Maori descent have to act towards each other appropriately and reasonably in good faith. The relationship of the two entities can be compared with the mutual obligations of the parties of a civil law contract. Thus, both parties are committed to cooperation. However, the Court did not recognise an obligation to consultation, since the connot matter

Thus "the

of that

tent

obligation

was

considered

as not

clear

enough

and it remained

a

mat-

of doubt, which institution is authorised to represent Maori at the national level.123 The partnership points to a responsibility of the Crown for Maori which ter

corresponds

fiduciary duty.

The Court held that this is

not a passive obligarequires the Crown to take active steps for the protection of The obligation to consider Maori interests is based in the concept of the

tion but Maori.

to a

which

one

honour of the Crown. This principle of partnership

confirmed

was

by

similar

of

privatisation124

the

of

Waitangi (State Enterprises)

questions 1988 "Treaty

extent

these decisions

[that]

aration

119

has

to

went

further

be made

to

and had

as

the

to

later

decisions, which dealt with

decide about the Act

125

interpretation

and others126. To

of

some

original leading case by calling for "reppeople for the past and continuing

the Maori

"Treaty of Waitangi (State Enterprises) Act", New Zealand Statutes 1988, paragraphs 27, 27 A-D. Note 115, 664, line 1. This term was first used by the Waitangi Tribunal. 1988

Vol. 2, No. 105,

881- 902, 120 121

Ibid., 663, line 45-46. See ibid., 671, line 41-43; 672, line 5-39; 690-691,passIM; 712, line 47-55. 123 Two years later, in 1989, the Court of Appeal recognised the obligation to consultations based on the principle of partnership, see Maori Council v. Attorney General, NZLR 1989, Vol. 2, 142, 152, 122

line 29-33. 124 See ibid., 142-153 (concerning state forests), especially 152, line 40; Tainul Maori Trust Board Attorney General, 1989, Court of Appeal, NZLR 1989, Vol. 2, 513-546 (concerning state coal mines), especially 527, line 27-30 and line 53; New Zealand Maori Council v. Attorney General 1996 (note 110), 140-189 (concerning public broadcasting), especially 169, line 5-10. v.

125

See

126

Attorney General

note

Te Runanga

119. v.

New Zealand Maori Council

General,

No.1

(note 64), 129, 135,

line 30;

Wbarekauri Rekobu Inc v. A ttorney- General (note 95), 301, 304, line 43-55; 306, line 27-41; Te Runanganui o Te Ika Wbenua Inc Society v. Attorney- General (note 71), 20, 24, line 11. o

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486

Ehrmann

breaches of the

and %.

Treaty"127

to

take affirmative action

redress past

to

breach)".128 The 1987

leading

decision

the starting point for an intense debate about in New Zealand's society. The principle of partnership, even if it may be regarded as not very helpful for a concrete interpretation of the Treaty, was laid down in a number of Acts.129 Finally, it was included as the "principle of cooperation" in official Government guidelines for its policy of regarding the was

Maori affairs

Treaty

Waitangi.130 VI.

Legal Status of the Treaty

The previous discussion of the development of the rights of the Treaty of Waitangi has not yet considered the legal status of the Treaty. In the 160 years since its signature, New Zealand's jurisprudence has considered the legal status of the

Treaty very differently. No clear line of thinking forceability of the Treaty rights of Maori.131 1.

The

Is the

is

Treaty legally binding by

discernible

regarding

the

en-

virtue of itself?

could be considered as directly legally binding if it constitutes an under international law. A -prerequisite for this would be that both agreement treaty parties possess the legal capacity to conclude treaties under international

Treaty

law.

Fundamental for the New Zealand discussion of the still the 1877 decision of the

Supreme

Court in the

legal

matter

status

of the

Wi Parata

v

Treaty is Bishop

The

of Wellington.132 In this judgement Chief justice Sir James Prendergast held that .so far as [the Treaty of Waitangi] purported to cede the it must be sovereignty He a that arrival the British delegation regarded simple nullity".133 argued upon did not find any form of government or system of law amongst the indigenous people. Therefore there existed no authority to cede sovereignty and to conclude

127

See President C

o o

k

e

in

Tainut Maori Trust Board

v.

Attorney

General (note 124), 513, 530,

line 8-11. 128

New Zealand Maori Council

129

See e.g. in Paragraph 2 (2A) (a) of the 1988 "Treaty of Waitangi Amendment Act" (note 58). See "Principles for Crown Action on the Treaty of Waitangi" of 22.5.1989; reprinted in

130

F r a in

(note 65), 82,

87. This gave

v.

Attorney

General

(note 111), 140, 169, line

17.

dispute between representatives of the Government and "partnership" or "cooperation" is more helpful for implementing the Treaty of Waitangi (see F r a in e, ibid., 88 92; C o o k e [note 5], 6). However, the importance of this dispute seems minor since the Government holds that: "The outcome of a reasonable cooperation will be partnership". 131 See for an overview to the discussion of the legal status of the Treaty: K e i t h (note 1), 37- 61; i d., The Roles of the Tribunal, the Courts and the Legislature, Victoria University of Wellington Law e

the Court of

Appeal,

whether the

rise to a

term

-

Review 25

(1995),

132

Wi Parata

133

Ibid.,

129-143.

v.

The

Bishop of Wellington (note 41),

72.

78.

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Status and

Rights

of

Indigenous Peoples

in

487

New Zealand

treaties under international law. In modern terms, the Maori tribes

were not a

-sub-

134 ject of international law. This understanding was confirmed by later decisions. of affirmation Thus the "Treaty" has been considered merely as an declamatory 35 that the Maori Chiefs to the British colonisation. According to leadingl -

-

opinion, the "Treaty" simply represents a "legal fiction": the Crown gained sovereignty by occupation and settlement and not by cession. One might rebut that the very fact that the British Crown had entered into negotiations with the Maori Tribes shows that it regarded them as equal partners. The Crown considered New Zealand as an independent state before the signing of the Treaty. 136 Even if the Maori Tribes were not a subject of international law at the time of signature, it can be stated that the British Crown, which was without doubt a subject of international law, conferred the capacity to conclude treaties under International Law to the Maori for this unique occasion. 137 However, this cannot be the place to give a final answer to this question. Regarding that the jurisprudence of New Zealand is firmly denying a direct legal validity of the Treaty, from a pragmatic approach it seems more worthwhile to explore whether there exists another legal basis for its validity.138

134

See

judge

R

i c

hmo

Reports 1884, Vol. 2, 160,

d

in

the 1884 Decision

in

the

matter

Hunt

Treaty of Waitangi

v.

Gordon,

was not a

the

New Zealand Law

treaty in the proper but by occupation";

sovereignty of these islands was not acquired by virtue thereof, Appeal 1913 in Tamihana Korokai v. Solicitor General, NZLR 1913, 321, 354. in this context one might note two other famous decisions, which are not considered in the New Zealand discussion. The opinion, that indigenous people are not a subject under International Law is also held by Judge Huber in the 1928 Island of Palmas-Arbitration: "As regards contracts between a and native princes or chiefs or peoples not recognised as members of the community of nastate tions, they are not, in international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties", Reports of International Arbitral sense,

and

n

186: "... the so-called

and the Court of

Awards (R.I.A.A.) 2 (1928), 840, 858. In its Advisory Opinion of October, 16th 1975 (ICJ Reports 1975, 12, 39) concerning the Western Sahara, the International Court ofJustice held that "according to the State practice of that period, territories inhabited terrae

but

nullius:

in

by

tribes

their

case

or peoples having a social and political organization were not regarded as sovereignty was not generally considered as effected through occupation,

agreements concluded with local rulers. The information furnished to the Court shows the time of colonisation Western Sahara was inhabited by peoples which, if nomadic, were

through

(a) that

at

and politically organised in tribes and under chiefs competent to represent them; Howthe Court finds "that neither the internal nor the international acts relied upon by Morocco indicate the existence at the relevant period of either the existence or the international recognition of legal ties of territorial sovereignty between Western Sahara and the Moroccan State".

socially

ever,

135

Cooke

See the former President of the Court of

(Ed.), Portrait of

136

See supra

137

The

136

Likewise

note

a

Appeal The Right

Honourable Sir Robin C

o o

k e, in

Profession (1969), 21.

16.

opinion that the Treaty of Waitangi is an agreement under International Law is only held by McGinty, New Zealand's Forgotten Promises: The Treaty of Waitangi, Vanderbilt journal of Transnational Law 25 (1992), 681, 697-722 and C a r t e r, The Incorporation of the Treaty of Waitangi in Municipal Law, Auckland University Law Review 4 (1980), 1-18. recent

jurisprudence led

the question whether the

agreement under International Law consciously unanswered, Attorney General 1987 (note 24), 641, 655, line 31-37.

see

Treaty the

of

Waitangi

leading

case

constitutes

Maori Council

an v.

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488

Ehrmann

Is the

2.

Treaty legally binding by incorporation into municipal law?

in Common law that any treaty concluded by the Crown bebinding only if it is incorporated in municipal law by an act of Par-

firmly settled

It is

legally

comes

liament. This is rooted in the concept of "Sovereignty of Parliament": any treaty obligation entered into by the Crown can only be enforced by court if it has been

incorporated by

Parliament

as

the supreme

legislative authority.139

This concept was first applied in the context of the Treaty of Waitangi by the Court of Appeal in 1913 in its decision in the matter Tam1hana Korokai v Solicitor General.140 The Court held that the part of the

as

municipal

Treaty "only

law if and when it is made

so

by

becomes enforceable

the

author-

legislative

ity. That has not been done".141 However, the fundamental decision for *the concept of incorporation can be found in the decision in the matter Hoani Te Huheu Tukino

v

Aotea District Maori Land Board142 of the

1941. The Council held that "it is well settled that any

Privy Council

rights purporting

to

in

be

by such a treaty of cession cannot be enforced in the courts, except so they have been incorporated in the municipal law."143 This has been con-

conferred far

as

firmed in

of

a

number of

incorporation,

it is

subsequent decisions.144 Since traditionally submitted, that

there has the

not

Treaty

been any

is of

no

act

legal

value.145

Nevertheless, recently a number of Acts have referred to the Treaty, the most prominent example is the 1975 "Treaty of Waitangi Act"146. However, these Acts only refer to the principles of the Treaty, not the wording of the Treaty itself.147 Furthermore, although these Acts cite the wording of the Treaty of Waitangi

139

C

See for

a rte r

an

overview of the

(note 137), 1-18;

application

H a u g h e y, The

of this notion in the

Treaty

of

Waitangi

of the Treaty of Waitangi: Legal Status, New Zealand Law Treaty of Waitangi: A Historical Per-

-

context

Its

journal 1984, 392; W i I 11 a m s, The Constitutional Status of the spective, New Zealand Universities Law Review 14 (1990), 9-36. 140

Tamibana Korokai

141

Ibid., 354f.

142

Hoant Te Huheu 74kino

v.

Solicitor General (note 134), 321-360. v.

Aotea District Maori Land

Board, Privy Council, 1941, NZLR

1941, 590-599. 143 144

Ibid.,

596 et seq. See Re the Bed of the

Wanganui River (note 42), 623: "This obligation was akin to a treaty obligation, and was not right enforceable at the suit of any private persons as a matter of municipal law by virtue of the Treaty of Waitangi itself ..."; Re the Ninety Mile Beach (note 42), 477: "This obligation was akin to a treaty obligation and was not right enforceable at the suit of any private persons until carried into municipal law". 145 M o I I o y, The Non-Treaty of Waitangi, New Zealand Law journal 1971, 193, 196, has pointed out "... considering only whether [the Treaty] is a binding legal document, and ignoring any 'spiritual' or emotional value it might have, it is submitted that the Treaty of Waitangi is worthless and of now effect. It 146 147

is a non-treaty 11. See supra note 56. See e.g. Paragraph 6 of the 1975

1986 "State owned

Enterprises

Act"

"Treaty of Waitangi (note 118).

Act"

(note 56) and Paragraph

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9 of the

Status and

in

an

annex,

considered

Rights

of

Indigenous Peoples

489

in New Zealand

they do so only for information purposes, so that fact cannot be thus conclude that these an incorporation of the Treaty. One might

148

as

Acts constitute

a

declamatory affirmation of the Treaty,

but

not an

incorporation.

e.g. the

High Court Trust v Development Wellington of the is the not "... that municipal law of Waikoto Valley Authority Treaty part the in Courts enforceable by virtue of the New Zealand in the sense it gives rights Treaty itself.11150

This conclusion is confirmed

by

recent

judicial authority,149

held in its 1987 Decision in the matter Huakina

3.

The

Treaty

of

Waitangi

as

supreme law?

General comments refer to the Treaty of Waitangi as the "founding document of the nation of New Zealand" or the "Maori Magna Charta".151 This raises the question whether the Treaty might be qualified as a constitutional document, that has priority over Acts and Statutes by Parliament. But this question was unambiguously answered by the Court of Appeal in its 1987 leading decision: it held that the Treaty of Waitangi is neither a constitutional nor a "Bill of Rights".152 However, one has to note the project to incorporate the Treaty of Waitangi in the 1990 "New Zealand Bill of Rights"153. In a 1985 Draft the former Labour Government took the position that a fundamental document like a Bill of Rights should include a recognition and affirmation of Maori rights.154 However, after an

document

148

See 1931 "Native Land Act"

(note 50),

101

seq.; 1960

et

"Waitangi Day

Act"

(note 55),

345-346; 1975 "Treaty of Waitangi Act" (note 56), 825, 830-832; 1973 "New Zealand Day Act" (note 55), 383, 386-387; 1976 "Waitangi Day Act" (note 55), 385, 388-390. 149 See comprehensively the Court of Appeal in its 1987 leading case Maori Council v. Attorney General (note 24), 641, 655, line 50-55; 667, line 50; 672, line 40-52; 691, line 23; 692, line 19; 715, line 37-42. The Court of Appeal explicitly refers to the 1941 Decision of the Privy Council in the See further Taimatter Hoani Te Huheu Tukino v. Aotea District Maori Land Board (see note 142). nui Maori Trust Board v. Attorney General 1989 (note 124), 513 546; New Zealand Maori' Council V. -

Attorney General, Court of Appeal, 1992, NZLR 1992, Vol. 2, 576, 603, line cannot 150 151 152 153

be enforced in the Courts except insofar See supra note 109, 188, 210, line 23. See supra note 6-8. Maori Council v. Attorney General 1990 "New Zealand Bill of

154

as

they

have been given

22-24: "... Tre,aty

recognition by

(note 24), 641; 655, line 48; 642, line

rights

statute."

6.

Rights", New Zealand Statutes 1990, Vol. 3, No. 109, 1687-1693. Rights (reprinted in: K e I s e y, Decolonization in the First World

Draft New Zealand Bill of Indigenous Peoples' Struggles for justice and Self-determination, The Windsor Yearbook of justice 5

-

[19851, 102, 129): Preamble:

(3) The Maori People as tangata whenua o Aoteraoa, and the Crown entered in 1840 solemn compact, known as Te Tiriti o Waitangi or the Treaty of Waitangi, and it is desirable to recognise and affirm the Treaty as part of the supreme law of New Zealand;" "Whereas

into a

Art. 4:

(1) "The Rights of Maori people under the Treaty of Waitangi are hereby recognised and affirmed. (2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumintent. stances as they arise so that effect may be given to its spirit and true (3) The Treaty of Waitangi Bill of

means

the

Treaty

as set out

in

English

and Maori in the Schedule

to

tNs

Rights."

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490

Ehrmann

intense

legal and political debate,155 this proposal was not realised. From a legal of view it was argued that this incorporation is contrary to the character of point Bill of a Rights. It should serve to guarantee individual rights and freedoms of the citizens whereas the Treaty of Waitangi contains a group right, which derives from a mutual treaty. 4.

In

a

ning,

The

of Waitangi interpretation

Treaty

as

of

criterion for the acts

number of Acts, especially concerning environmental protection and planfind paragraphs providing that its regulations shall be interpreted in

one can

consistent with the

of the

Treaty of Waitangi.156 account the principles of the Treaty of Waitangi in a planning decision even if the corresponding Act does not refer to the Treaty of Waitangi. This was held by the High Court Wellington in its 1987 Decision in the matter Huakina Development Trust v Waikoto Valley Authority.157 A group of Maori had successfully filed a claim against a decision which allowed the disposal of waste and waste water in the Huakina River. They argued that this constitutes not only a physical danger, but also a denial of the traditional spiritual relationship of that tribe to the river. Since the river represents a symbol of the cultural identity of the tribe, they asserted that it is protected by Article Two of the Treaty. At that time the planning act did not include a reference to the Treaty of Waitangi. However the Court argued that "... there has been considerable direct and indirect recognition by statute of the obligations of the Crown to the Maori people. There can be no doubt that the Treaty is part of a manner

Above

principles

that, the administration has

take into

to

the fabric of New Zealand society. It follows that it is part of the context in which legislation which impinges upon its principles is to be interpreted when it is resort to proper, in accordance with the principles of statute interpretation, to give

extrinsic material".158 155

See K e I s e y (note 154), 102, 129 -135; J o s e h, The Challenge of a Bill of Rights: A Comp mentary, New Zealand Law Journal 1986, 416, 422; E I k i n d, Response, New Zealand Law Journal 1986, 422, 423; Ta m 1 h e r e, The Treaty of Waitangi and the Bill of Rights: A Plea for Recognition, New Zealand Law journal 1987, 151-153; B r o o k f 1 e I d, The New Zealand Constitution: The Search for Legitimacy, in: Kawharu (Ed.), Waitangi Maori and Pakeha Perspectives of the of Wai-

Treaty

-

tangi (1989),

1-24; id., Parliament, the

New Zealand Law

journal 1994,

Treaty

and Freedom: Millennium

462 -468; M. i k a

e r

e,

Hopes and Speculations,

Maori Issues I New Zealand Recent Law Re-

view 1990, 122, 126. 156 See Paragraph 8 of the 1991 "Resource

Management Act" (New Zealand Statutes 1991, Vol. 2, the purpose of this Act all persons exercising functions and powers under it, in relation to managing the use, development and protection of natural and physical.resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)"; Paragraph 4 of the 1990 "Runanga 1wi Act" (note 68): "This Act shall be interpreted in a manner consisNo. 69,

tent

595-976):

with the

prises

Act"

"in

principles

achieving

of the

Treaty

of

Waitangi"

and

Paragraph

9 of the 1986 "State owned Enter-

(note 118): "Nothing in this Act shall permit the Crown

inconsistent with the 157

See supra

158

Ibid., 210, line

note

principles

of the

Treaty

of

to act

in

a manner

Waitangi".

109. 35-42.

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which

is

Status and

the Court of

Similarly not

ascribe

Rights

Indigenous Peoples

held in its 1987

Appeal

Parliament

to

of

intention to

an

491

in New Zealand

leading

decision that it "... will.

permit conduct

inconsistent

with the

the

interpreprinciples of the Treaty. I accept that this is the correct approach to tation of ambiguous legislation or working out the import of an express reference to the principles of the Treaty."159

5.

Finally,

The

the

Treaty

of Waitangi

Treaty of Waitangi

as

a

political guideline

is of influence for

legislative

and

political

pro-

that draft acts are in compliance grams. Cabinet members are urged to substantiate 160 The of with the principles of the Treaty Ministry for Maori Affairs161 Waitangi. has the task

to

requirement. Thus there is no legally the Treaty of Waitangi. However, the

monitor the fulfilment of that

obligation to comply with Appeal held in 1991162 that Ministers are bound to the principles of the Treaty of Waitangi as interpreted by the Waitangi Tribunal in their political decisions, even if there is no explicit reference to the Treaty of Waitangi in the corresponding Act 163. enforceable Court of

Conclusion

6.

Summarising these various approaches of New Zealand's jurisprudence and legislation, only a "quasi-legal" status can be ascribed to the Treaty of Waitangi. It has no direct legal value nor an indirect legal validity since an act of incorporation of the Treaty in municipal law is wanting. However, a good number of Acts rec-

ognise and affirm the principles of the Treaty. They have to be considered for the interpretation of Acts, even if the corresponding Act does not explicitly refer to them. Thus the Treaty of Waitangi represents not a legal, but a firm political and moral obligation to the Crown. VIL International

Trying

to

evaluate the

Treaty

Comparison

Waitangi, it might be helpful to compare the rights of Indigenous Peoples on the inter-

of

in New Zealand with national level and in other former British Dominions like Australia and Can-

the situation

ada.164 k e in Maori Council

159

President C o

160

See the Guideline of the

reprinted in: 161

Keith

o

(note 1), 37,

163 164

Attorney General (note 24), 656, line

"Legislation Advisory

Committee" No. 38 of

3

-

6.

June, 2Yd 1986,

48.

"Ministry for Maori Affairs/Te Puni Kokiri", which has been of the Government of New Zealand at http://wwwtpk.govt.nz/

See for information about the

restructured in 1992, the intro/index.html. 162

v.

homepage

See supra note 113. 1989 "Radio Communications See for

Act", New Zealand Statutes 1989, Vol. 4, No. 148, 2297. of the situation of indigenous people in other states the reports of Special Alfonso Marzinez of the Su b- Commission on Prevention of Discrimination and

an overview

Rapporteur Miquel

"

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492

Ehrmann

1

On the international level

tions

International level

one

has

to note

the "Draft Declaration on the Draft Declaration contains a number of on

the

Rights

ongoing of

work in the United Na-

Indigenous Peoples""'. similar

This

to conrights proclaimed by the Treaty of Waitangi or developed by jurisprudence in the way of interpretation as discussed above. For example, Draft Article 14 provides that Indigenous Peoples have the right to revitalise, use, develop and transmit to future generations their language. States shall also ensure that they can understand and be understood in political, legal and administrative proceedings. In this context, Article 17 provides that Indigenous Peoples have the right to establish their own media in their own language. They also have the right to equal access to all forms of non-indigenous media. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. Furthermore Articles 25-30 proclaim comprehensive land rights. According to the Draft Declaration Indigenous Peoples do not only have the right to maintain and strengthen their distinctive material but also their spiritual relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used. Indigenous Peoples are moreover entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. Finally, they have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confi occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Apparently the core of the Draft Declaration is the right of self-determination of Indigenous Peoples, which at the same time represents its most difficult problem. As a specific form of exercising their right to self-determination, they are supposed to have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, media, health,

those

firmed in New Zealand

land and

resources

management,

environment

and others.

Protection of Minorities" of the Human Rights Commission: other constructive arrangements between States and indigenous

"Study on treaties, agreements and populations", First Progress Report

of 25.8.1992 in

E/CN.4/Sb.2/1992/32, Second Progress report of 31.7.1995 in E/CN.4/sub.2/1995/27; of 15.8.1996, E/CN.4/Sub.2/1996/23. Wickliffe, Issues for Indigenous Claims Settlement Policies Arising in Other jurisdictions, Victoria University of Wellington Law Review 25 (1995), 204 218; M c H u g h, Aboriginal Rights and Sovereignty: Commonwealth Developments, New Zealand Law journal 1986, 57-63. Third

Progress Report -

165

United Nations Commission

an

Human

Rights,

Sub-Commission

on

Prevention of Discrimi-

nation and Protection of

Peoples, in this

34 ILM 541

issue,

Minorities, Draft United Nations Declaration on the Rights of Indigenous (1995). Compare also Annex, II., in this issue. See for further details Wo I f r u in

369-382.

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Status and

Rights

of

Indigenous Peoples

in New Zealand

493

Self-determination represents a problem under the Treaty of Waitangi as well.166 According to Article Two of the English version the Crown guarantees to Maori of certain assets. The Maori version speaks of the full and undisturbed

possession .rangatiratanga", i.e. the unqualified exercise of their chieftainship over their lands, villages and all treasures.167 Since this wording focuses on the power of the Chiefs as exercised according to their customs, it might be interpreted as the right of self-determination at least concerning land and resources management. Yet the discussion whether there could be any form of government according to Maori criminal justice system, is only customs, e.g. a tribal authority or a separate Maori its origins in New Zealand.168 Obviously the inherent problem of self-determination of Maori is the restriction of the sovereignty of the Crown, of the powers of Parliament and of the of rights of others. Hence the 1989 "Principles for Crown Action on the Treaty has Waitangi" emphasise that according to Article One of the Treaty the Crown whereas according to the "right to make laws and its obligation to govern Article Two the Maori have the right of "self-management" of their resources.169 It has to be noted that the term "self-determination" is not used. The problem of self-determination is too far-reaching to be discussed here in detail.170 It should be sufficient to point to one interesting regulation of New Zealand in this context, which should be noted when examining the problem of a possible contradiction between the right of self-determination and individual rights: By Maori customs, assemblies ("hui"). Consewomen are not allowed to speak in the traditional Amendment Act" 171 esof 1988 the of 7 Waitangi "Treaty quently paragraph (9) pecially stipulates that whereas the Tribunal may regulate its procedure as approof the priate, it "shall not deny any person the right to speak during proceedings Tribunal on the ground of that person's sex."

at

2.

Because of the

might

Australia and Canada

geographical neighbourhood of Australia and New Zealand, one possible parallels regarding the situation of indigenous

first search there for

comprehensively B r o w n I i e, The Framework: Group Rights and Self-Determination, in: Indigenous Peoples, in: Brookfield (Ed.), The Robb Lectures 1991 (1991), 29-54; B r o w n I i e, Indigenous Peoples: A Relevant Concept?, in: ibid., 55 75. 166

See

Treaties and

-

167

See supra note 28. See Jackson, justice and Political Power:

Reasserting Maori Legal Processes, in: Hazlehurst Pluralism and the Colonial Legacy Indigenous Experiences of justice in Canada, Australia and New Zealand (1995), 244-263. 169 1989 "Principles for Crown Action on the Treaty of Waitangi" (note 65), 82, 87; see for a discussion of these guidelines: P a I m e r, The Treaty of Waitangi Principles for Crown Action, Victoria 168

(Ed.), Legal

-

-

University of Wellington

Law Review 19

170

See for details Wo I f r u

171

Sttpra

note

m

(1989),

335-345.

in this issue, 369

-

382.

58.

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494

Ehrmann

people.172 However, kind of based

acquisition

on

when it

the

the

striking difference between these two countries is the territory during colonisation: the Australian thinking was

of

fiction that the Australian continent

legal

represented "terra nullius" Aborigines was extinThe turning point was marked only in 1992

discovered in 1788. Thus any "native title" of

was

guished by occupation and settlement. by the leading Mabo Decision of the Australian High Court.173 The Court held that Australian Common law recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants in accordance with their laws or customs. This was confirmed by another leading case of the High Court in 1996 in the matter Wik Peoples v State of Queensland and Otbers.174 The Court held that native title can only be extinguished by a written law or an act of the Government which shows a clear and plain intention to extinguish native title. Similarly in Canada 175 the Supreme Court confirmed in 1984 in its decision in the matter Guem'n v the Queen176 the "aboriginal title". Further to this concept of Common law, there exists a number of treaties between French or English settlers and Indian Tribes in Canada.177 However unlike the Treaty of Waitangi they do not provide for a cession of territory, but only for the ceding of hunting and fishing rights in return for peace and friendly relations. Finally the existing aboriginal and treaty rights of aboriginal peoples of Canada are recognised and confirmed by Article 35 of the 1982 "Constitution Act". 178 This consti tutional -

-

protection

neither be found in Australia

can

Article 35

nor

in New Zealand.

interpreted by the Canadian Supreme Court in 1990 in the matter R v Sparrow 179.The facts of the case are very similar to the Te Weebi Decision in New Zealand. 180 The appellant was charged with fishing in contradiction I to the was

Fisheries Act. He admitted that the facts

fended himself

the basis that he

on

fish and that restriction

by

was

alleged

constitute the

exercising

the Fisheries Act

was

an

offence, but de-

existing aboriginal right

invalid

in

that it

was

to

inconsistent

with Article 35(l) of the 1982 Constitution Act. The Court confirmed that fishing according to an aboriginal right was protected by Article 35. It further held that 172

See for details S c h i I I h

thinking:

o r n

in this issue, 443 -462. See for the influence of the New Zealand

k e y,

Milirrpum and the Maoris: The Significance of the Maori Lands Cases outside New Zealand, Otago Law Review 3 (1973), 63-75; Nettheim, Developing Aboriginal Rights, Victoria University of Wellington Law Review 19 (1989), 403-419. 173 Mabo v. Queensland (No. 2), High Court, Australian Law Reports 107 (1992), 1-170 (see also the previous Mabo v. Queensland (No. 1), High Court, Commonwealth Law Reports 166 (1988), H

o o

186). 174

Australian Law

175

For details

see

Reports

B

e n e

141

(1997),

129-296.

d i c t in this issue, 405 -442.

176

Guerrin v. the Queen, Supreme Court Reports 1984, Vol. 2, 335. Compare e.g. S t o k e s, The Land Claims of First Nations in British Columbia, Victoria University of Wellington Law Review 23 (1993), 171-190. 178 "Constitution Act 1982 ", reprinted in: H o o k, Constitutional Law of Canada (1992), Appendix 111; 1335-1368. Compare also Annex, VIII., in this issue. 179 R. v. Sparrow, Supreme Court Reports 1, 1990, 1075. 177

180

See supra

note

77.

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Status and

any government the Fishing Act

Rights

regulation -

of

that

demands

Indigenous Peoples

infringes

justification.

upon

or

in

495

New Zealand

denies

aboriginal rights like recognition afforded -

The constitutional

provision, therefore, gives a strong measure of control over government conduct and a strong check on legislative power. Article 35 does not promise immunity from government regulation in contemporary society, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protecte4 under section 35 (1).181 Taking together the leading cases of Australia, Canada and New Zealand, they all refer to the same concept of relationship between the indigenous people and the Government: 182 It can now be held that there is a substantial body of Commonwealth case law pointing to a fiduciary duty or a trust obligation of the Crown in its dealing with indigenous people and to the principle of partnership. All the decisions quoted emphasise that the fiduciary duty is upheld in the honour of the Crown and in keeping with the unique contemporary relationship, grounded in the history and

by

the

policy between the

Crown and the

VIIL

indigenous people. Remarks

Concluding

Treaty of Waitangi is thus on the one hand part of a widespread international recognition of the rights of indigenous peoples. On the other hand, it is unique, as the comparison with Australia and Canada has shown. The approach of a comprehensive treaty between an indigenous people and a European Power is without precedent in the history of colonisation. It shows the intent that the new territory should not be acquired by occupation, but by cession in free and informed consent by the indigenous people. The Treaty contains a number of rights, which have just recently been developed in other States and on the international The

level.

Still the legal Zealand183 and

181

182

of the Treaty remains unclear in the discussion in New the international level.184 Whereas the early history of New

position on

note 179, 410, para. (d). New Zealand's Courts also have been influenced

See

by

the earlier Australian and Canadian Deci-

sions, see the comments in Te Runanganui o Te Ika Whenua Inc Soci'ety v. A ttorney- General (note 71), 20-27; Te Runanga o Wbarekauri Rekohu Inc v. Attorney- General (note 95), 301-322. 183

See the debate between C h a p in a n, The

Treaty

of

Waitangi

-

Fertile Ground for judicial

(and

Academic) Myth-making, New Zealand Law journal 1991, 228-236, on the one hand, and on the other hand: M c H u g h, Constitutional Myth and the Treaty of Waitangi, New Zealand Law Journal 1991, 316 -319; W i I I i a m s, Chapman is Wrong, New Zealand Law journal 1991, 373 375. See fur-

Problem than a Solution?, in: Treaties and Indigenous Peoples, in: Brookfield (Ed.) (note 166), 77-100; B r o, o, k f i e I d, Maori Rights and Two Radical Writers: Review and Response, New Zealand Law journal 1990, 406-420. 114 See "Study on treaties, agreements and other constructive arrangements between States and

ther B

r o w n

11 e,

Waitangi:

indigenous populations",

More

a

Second

Progress Report of

31.7.1995

in

E/CN.4/sub.2/1995/27,

para.

176-201.

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33 Za6RV 59/2

496

Ehrmann

Zealand has years,

one

a

bad record of adherence

could witness

a

serious

to

concern

the

Treaty, especially in the last questions. Essential

about Maori

this process has been the interplay of government, However, the legal status of the -Treaty remains a be neither

regarded

ten

for

legislation and jurisprudence. matter of dispute. Today it can

"simple nullity", nor as a constitutional document, nor incorporatedin municipal law. Nevertheless, there is a trend in recent jurisprudence that it serves as a yardstick for the interpretation of Acts. Thus the Treaty can be considered as a "quasi-judicial" instrument. A mirror for this .quasi-judicial" role are the functions of the main body for the promotion of the Treaty, the Waitangi Tribunal. In outlook, a constitutional affirmation of the Treaty seems to be desirable. Thus it is regrettable that the chance to incorporate the Treaty in the 1990 Bill of Rights was not used. That way the importance of the Treaty of Waitangi for the interpretation of Acts would have been confirmed, since Article 6 of the Bill of Rights stipulates: "Wherever an enactment can be given a in *eaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning." The structure of the Canadian Constitutional Act might serve as a model for the incorporation of Maori rights in the New Zealand Bill of Rights. A constitutional affirmation of Maori rights finally seems to be necessary considering the possible development of New Zealand from a monarchy to a republC,185 so that the Crown as a treaty partner would lose its as a

has it been

influence.

185

See

Brookfield, Republican New Zealand: Legal Aspects and Consequences, New Zealand 327; i d., Revolutions, Referendums and the Treaty, New Zealand Law jour-

Law Review 1995, 310

-

nal 1997, 328-322.

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