Lecture 9

What did Ann Salmond brief of Evidence Wai 1040 say during Ngāpuhi hearings in 2010? (about treaty of waitangi)

"two very different documents, with divergent textual histories and political implications; and for that reason, it is a mistake to bracket them together. I have observed that this error has led to a confused and confusing historiography of the Treaty, which should not be perpetuated."

What did Ani Mikaere say about the Treaty of Waitangi?

'One of the greatest misconceptions currently plaguing Treaty jurisprudence is the conviction that Te Tiriti and The Treaty bear some kind of relationship to one another, the common description of them as English and Māori texts of the one document illustrating the ultimate absurdity of pursuing such a view to its logical conclusion. ...Apart from the fact that the...two documents happen to have been drafted and circulated during the same time period, they have absolutely nothing in common with each other...[T]he inextricable connection between He Whakaputanga and Te Tiriti should be acknowledged, and the Treaty seen for the historical irrelevance that it truly is.'

What path has Te Ara o te Tiriti (Treaty Jurisprudence) had?

- it has had a long and twisting path, from constitutional document, to simple nulity to extrinsic aid

How many members does the Waitangi Tribunal comprise of now?

-20 members -approximately half members are Māori and half non-Māori

What happened 1990 onwards in regard to the Waitangi Tribunal?

-Crown reassert control over treaty settlements and undermine role of tribunal.

What did the first tribunal transformation in 1980 entail?

-Early reports 1983-88 largely dealt with environmental issues: Motunui, Kaituna, Manukau, Mangonui etc. -Early hearings were inquisitional, took place on marae; most claimants giving evidence were kaumatua and presented in Te Reo. Claimants held the mana, hearings were emotionally charged, but they took place under tikanga.

What were the origins of the Waitangi Tribunal?

-Emerged as a consequence of social ferment: • The radical politics of the 60s and 70s • Māori activism • Renewed academic interest The Tribunal was the brainchild of Rātana Labour MP Matiu Rata, established via the Treaty of Waitangi Act 1975.

New Zealand Māori Council v Attorney General (The Lands case)

-Fourth Labour Government introduced Rogernomics, a series of radical far right free-market reforms. -Established SOEs, which transformed government departments and agencies into privatized companies. -Crown lands were to be passed over to these companies and privatised by May of 1987. Māori were engaged in the process of reclaiming Crown lands as part of treaty settlements. -The New Zealand Māori Council took an injunction to the High Court to stop the transfer of these lands until claims over them had been settled. -SOE Bill, Section 9: 'nothing in the Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi'. -All five judges agreed unanimously that the Treaty of Waitangi, as given effect in Section 9, prevented the Crown from transferring lands to SOEs without first protecting Māori interests. -High court also attempted to define the principles: partnership, active protection, Kāwangatanga, the crown must remedy past grievances

Huakina Development Trust v Waikato Valley Authority 1987

-Naniko Minhinnick of Ngāti Te Ata from Manukau Harbour brought a case to the High Court against the Waikato Valley Authority for granting a water right to discharge dairy effluent into the Waikato River. -Minhinnick argued that the river was a taonga, a valued possession of the iwi as a resource that provided physical and spiritual sustenance, and as a taonga it was protected by Article 2 of Te Tiriti.

Wi Parata v Bishop of Wellington 1877

-Ngāti Toa gifted land to the Church of England for educational purposes. The Church had not used the land for that purpose. Parata sought the return of those lands on the grounds that they were customary lands. Justice James Prendergast: -Māori customs were primitive and could not be recognised in law. -'the whole treaty was worthless - a simple nullity pretended to be an agreement between two nations but was between a civilised nation and a group of savages'. -For 70 years, Prendergast's ruling dominated treaty jurisprudence. Māori attempts to address treaty grievances were blocked by this legal precedent.

Te Heuheu Tūkino 1941

-Ngāti Tūwharetoa had been sued for damages by a timber country. -Te Heuheu Tūkino took the case to the Privy Council, arguing that the legislation under which the debt had occurred went against the treaty and was therefore invalid. -The Law Lords of Britain took a different approach to their settler counterparts, ruling that the treaty was only enforceable if it was incorporated into domestic legislation. -Set a new legal precedent and gave Māori a target to set their sights on: incorporation of Te Tiriti into law.

What is the function of the Waitangi Tribunal?

-Permanent commission of enquiry, not a court. -Function: "To enquire into claims laid by Māori against the Crown that they have been prejudicially affected by government legislation, policy, action or inaction that is inconsistent with the Treaty" -Publishes its findings as reports, findings are recommendations only, non-binding. -One exception: State Owned Enterprise and Crown forest lands. Exercised once in Turangi Township Report 1997.

What does Treaty jurisprudence focus on?

-Principles -avoiding Te Tiriti -It's provision of tino rangatiratanga

R v Symonds 1847

-Questioned the competence of settlers to buy land directly from Māori, foregoing Crown pre-emption. -Justice Chapman acknowledged and affirmed the status of the Treaty of Waitangi as a constitutional document that had been confirmed by the colony and therefore was relevant in regulating relationships between the Crown, Māori and settlers.

What are some examples of Te Ara o te Tiriti (Treaty jurisprudence) before 1980?

-R v Symonds 1847 -Wi Parata v Bishop of Wellington 1877 -Te Heuheu Tūkino 1941

What are some examples of Te Ara o te Tiriti (Treaty jurisprudence) after 1980?

-Te Weehi v Regional Fisheries Officer, High Court, 1986 -Huakina Development Trust v Waikato Valley Authority 1987 -New Zealand Māori Council v Attorney General (The Lands case)

Te Weehi v Regional Fisheries Officer, High court, 1986

-The 1980s saw an expansion of Māori rights as Parliament, Cabinet, the Courts and the Waitangi Tribunal began making reference to the treaty: -1986 Cabinet Paper: All future legislation should recognise 'the principles of the Treaty of Waitangi', Government Departments should consult with Māori on all matters that affected the application of the treaty.

What acts did Sir Geoffrey Palmer introduce (after 1980)?

-Treaty of Waitangi Ammendment Act 1985 -Criminal Justice Act 1985 -Law Commision Act 1985 -Environment Act 1986 -State Owned Enterprises Act 1986 -Māori Language Act 1987 -Conservation Act 1987 -State Sector Act 1988 -Coroners Act 1988 -Treaty of Waitangi (State Enterprises) Act 1988 -Treaty of Waitangi Ammendment Act 1988 -Māori Affairs Restructuring Act 1989 -Māori Fisheries Act 1989 -Crown Forest Assets Act 1989 -Education Act 1989

What is the solution that the UN Special Rapporteur Recommendations 2006 came up with?

-The Treaty of Waitangi should be entrenched constitutionally in a form that respects the pluralism of New Zealand society, creating positive recognition and meaningful provision for Māori as a distinct people, possessing an alternative system of knowledge, philosophy and law. -The Waitangi Tribunal should be granted legally binding and enforceable powers to adjudicate Treaty matters with the force of the law.

Reports produced by the Tribunal

-To date the Tribunal has produced 143 reports on their findings. -Rewritten the history of this country, unearthing shameful accounts of colonial violence, theft and neglect of tangata whenua that have long remained buried, ignored and denied. -Challenged myths that New Zealand was settled peacefully and enjoyed the best race relations in the world. -Almost all reports demonstrate gross breaches of the treaty and in many cases, that Crown actions were also illegal and/or inconsistent with the rule of law.

What happened 2000 onwards in regard to the Waitangi Tribunal?

-Tribunal further hamstrung by urgency hearings as iwi begin opposing treaty settlements. Tribunal struggle to complete lengthy historical reports, some recent reports published after settlements have been reached.

What does the Waitangi Tribunal have to do with the Treaty of Waitangi?

-Tribunal has to show government actions were inconsistent with the principles of the Treaty of Waitangi. -Preamble of Act: 'the text of the Treaty in the English language differs from the text of the Treaty in the Māori language'. Tribunal's role 'to make recommendations on claims relating to the practical application of the principles of the Treaty'. -The Tribunal's role is to define the principles within its reports.

Recap on The Treaty and Te Tiriti in 1840

-Two different documents were drafted and signed in 1840. -The Crown regarded the Treaty as a cession of sovereignty. -Rangatira regarded te Tiriti as an affirmation of tino rangatiratanga. -These two documents created conflicting understandings of what was agreed to in 1840, and diverging historical traditions. -Treaty jurisprudence since the 1970s has assumed that there is a relationship between Te Tiriti o Waitangi and the Treaty of Waitangi and that these two documents can be 'read together'.

Waitangi Tribunal remains ___, ___, and ___

-disempowered -under-resourced -under threat of abolishment

What did the second tribunal transformation in 1985-1988 entail?

-it transformed with retrospective powers to 1840, more members, more resources. -From 1988 Tribunal began dealing with resources and land: Muriwhenua Fisheries, Ngāi Tahu etc. Pākehā backlash against Māori and the Tribunal begins. -Hearings became increasingly more adversarial, lawyers began to dominate proceedings. Crown lawyers began challenging all evidence presented by claimants. 2000 onward: Tribunal further hamstrung by urgency hearings as iwi begin opposing treaty settlements. Tribunal struggle to complete lengthy historical reports, some recent reports published after settlements have been reached.

Initially, the waitangi tribunal could only hear claims arising after which year?

1975

When were powers extended to enquire into retrospective claims arising since 1840? (about waitangi tribunal)

1985

When did membership of the waitangi tribunal increase from three to 17?

1988

Crown policy since what year has focused on repealling statutory rights and extinguishing Māori claims?

1990

Partnership principle

Crown and Māori are to act reasonably and in good faith.

Kāwangatanga principle

Crown had a right to govern uninhibited by the treaty but must make laws that were guided by the principles and meet the needs of the day.

Active protection principle

Duty of Crown to actively protect Māori interests in land and water rights.

What did Walker do?

He pitched New Zealand 'firmly into the post colonial era', 'the beginning of decolonisation of New Zealand.'

Did the tribunal do much in it's first five years?

No, it achieved little -'window-dressing' 'non-event' 'toothless-tiger'.

When did the Waitangi Tribunal transform?

There were 2 main waitangi Tribunal transformations: -It transformed from 1980 with appointment of Sir Eddie Durie as chairman. - and also in 1985-1988

Until when will Te Tiriti remain at the discretion of the Crown, the whim of the Pākehā public and the interpretation of the judiciary?

Until Te Tiriti is entrenched constitutionally

What did Justice Robin Cooke say about the 1987 lands case?

that it is perhaps the most important case that had ever come before a New Zealand Court.