Treaty of Waitangi claims and settlements

Claims and settlements under the Treaty of Waitangi have been a significant feature of New Zealand race relations and politics since the Treaty of Waitangi Act 1975. Successive governments have increasingly provided formal legal and political opportunity for Māori to seek redress for breaches by the Crown of the guarantees set out in the Treaty of Waitangi. While it has resulted in putting to rest a number of significant longstanding grievances, the process has been subject to criticisms from a number of angles, from those who believe that the redress is insufficient to compensate for Māori losses, to those who see no value in revisiting painful and contentious historical issues. The settlements are typically seen as part of a broader Māori Renaissance.

Because the Treaty of Waitangi has limited legal standing in itself, the primary means of registering and researching Treaty claims is through the Waitangi Tribunal. The primary means of settling those claims is through negotiations with the government of the day.

History of the Treaty[]

The Treaty of Waitangi

The Treaty of Waitangi was first signed on 6 February 1840 by representatives of the British Crown and Māori chiefs (rangatira) from the North Island of New Zealand, with a further 500 signatures added later that year, including some from the South Island, and is one of the founding documents for European (Pākehā) settlement in New Zealand.^[1][2] It was preceded by the Declaration of Independence / He Whakaputanga signed in 1835, where some North Island Māori proclaimed the country of Aotearoa / New Zealand to an international audience as an independent state with full sovereign power and authority held with Māori chiefs (rangatira).^[3]

The Treaty of Waitangi was written in English and translated into Te Reo Māori. As some words in the English treaty did not translate directly into the written Te Reo Māori of the time, the Māori text is not a literal translation of the English text, particularly in relation to the meaning of having and ceding sovereignty.^[4][5] In the English version, Māori ceded the sovereignty of New Zealand to Britain; Māori gave the Crown the exclusive right to purchase lands they wished to sell, and, in return, Māori were guaranteed full ownership of their lands, forests, fisheries and other possessions and were given the rights of British subjects. However, in the Māori language version of the Treaty, the word ‘sovereignty’ was translated as ‘kawanatanga’ (governance). And in contradiction to the English language version, Māori retained authority and sovereignty, and did not give this to the Queen.^[3] In addition, the English version guaranteed ‘undisturbed possession’ of all ‘properties’, but the Māori version guaranteed ‘tino rangatiratanga’ (full authority) over ‘taonga’ (treasures).^[1]

Around 530 to 540 Māori, at least 13 of them women, signed the Te Reo Māori version of the Treaty of Waitangi, known as Te Tiriti o Waitangi.^[6][7] Only 39 signed the English version.^[8]

The different understandings of the content of the treaty led to disagreements between Pākehā and Māori, beginning almost immediately after the signing of the treaty, and contributed to the New Zealand Wars, which culminated in the confiscation of a large part of the Waikato and Taranaki.^[9]

Early settlements and claims[]

In the 1920s, land commissions investigated the grievances of hapū whose land had been confiscated or otherwise fraudulently obtained in the previous century, and many were found to be valid.^[10] By the 1940s, settlements in the form of modest annual payments had been arranged with some hapū. However, hapū came to consider the amounts to be inadequate, especially as inflation eroded their value, and the Crown has conceded that it did not sufficiently seek the agreement of hapū to declare their claims settled.^[11]

The Waitangi Tribunal[]

During the late 1960s and 1970s the Treaty of Waitangi became the focus of a strong Māori protest movement which rallied around calls for the government to 'honour the treaty' and to 'redress treaty grievances'. Māori expressed their frustration about continuing violations of the treaty and subsequent legislation by government officials, as well as inequitable legislation and unsympathetic decisions by the Māori Land Court alienating Māori land from its Māori owners.^[12]

In 1975 the Treaty of Waitangi Act established the Waitangi Tribunal to hear claims of Crown violations of the Treaty of Waitangi, to address those concerns. It allowed any Māori to lodge a claim against the Crown for breaches of the Treaty of Waitangi and its principles. Originally its mandate was limited to claims about contemporary issues, that is, those that occurred after the establishment of the Tribunal. Early claims included the "Te Reo Māori" claim.^[13] As a result of the Tribunal's report into the claim, in 1987 the government made Te Reo Māori an official language of New Zealand, and established the Maori Language Commission to foster it. The pivotal issue considered by the Tribunal was whether a language could be considered a "treasure" or "taonga", and thus protected by the Treaty. Significant research has been undertaken in New Zealand as a result of claims being put to the Waitangi Tribunal. Much of this has been generated by iwi (Māori tribal groups), a lasting example is the Ngāti Awa Research Centre established in 1989.^[14][15]

In 1985 the Fourth Labour Government extended the Tribunal's powers to allow it to consider Crown actions dating back to 1840,^[16] including the period covered by the New Zealand Wars. The number of claims quickly rose, and during the early 1990s, the government began to negotiate settlements of historical (pre-1992) claims.^[17]

Settlements of the 1990s[]

While early Tribunal recommendations mainly concerned a contemporary issue that could be revised or rectified by the government at the time, historical settlements raised more complex issues. The Office of Treaty Settlements was established in the Ministry of Justice to develop government policy on historical claims. In 1995, the government developed the "Crown Proposals for the Settlement of Treaty of Waitangi Claims"^[18] to attempt to address the issues. A key element of the proposals was the creation of a "fiscal envelope" of $1 billion for the settlement of all historical claims, an effective limit on what the Crown would pay out in settlements. The Crown held a series of consultation hui around the country, at which Māori vehemently rejected such a limitation in advance of the extent of claims being fully known.^[19] The concept of the fiscal envelope was subsequently dropped after the 1996 general election.

Despite the protest, three major settlements were reached during this time. The Minister of Justice and Treaty Negotiations at the time, Sir Douglas Graham, is credited with leading a largely conservative National government to make these breakthroughs.^[20]

Sealord[]

The Treaty guaranteed to Māori their lands, forests and fisheries. Over time, however, New Zealand law began to regulate commercial fisheries, so that Māori control was substantially eroded. To resolve this grievance, in 1989 an interim agreement was reached. The Crown transferred 10 percent of New Zealand's fishing quota (some 60,000 tonnes), together with shareholdings in fishing companies and $50 million in cash, to the Waitangi Fisheries Commission. This commission was responsible for holding the fisheries assets on behalf of Māori until an agreement was reached as to how the assets were to be shared among tribes. In 1992, a second part of the deal, referred to as the deal, marked full and final settlement of Māori commercial fishing claims under the Treaty of Waitangi. This included 50% of Sealord Fisheries and 20% of all new species brought under the quota system, more shares in fishing companies, and $18 million in cash. In total it was worth around $170 million.^[21] This settlement was undertaken under the leadership of the Hon. Matiu Rata and Dr. George Habib.^[22]

Waikato Tainui Raupatu[]

The first major settlement of historical confiscation, or raupatu, claims was agreed in 1995. Waikato-Tainui's confiscation claims were settled for a package worth $170 million, in a mixture of cash and Crown-owned land. The settlement was accompanied by a formal apology as part of the claims legislation, granted Royal assent by Queen Elizabeth II in person during her 1995 Royal tour of New Zealand. The Crown apologised for the Invasion of the Waikato and the subsequent indiscriminate confiscation of land.

Ngāi Tahu[]

Ngāi Tahu's claims covered a large proportion of the South Island of New Zealand, and related to the Crown's failure to meet its end of the bargain in land sales that took place from the 1840s.^[23] Ngāi Tahu sought recognition of their relationship with the land, as well as cash and property, and a number of novel arrangements were developed to address this. Among other things, Ngāi Tahu and the Crown agreed that Mt Cook would be formally renamed Aoraki / Mount Cook, and returned to Ngāi Tahu to be gifted back to the people of New Zealand.

Settlements of the 2000s[]

The process of negotiating historical claims continued after the 1999 election and the subsequent change in government without radical change to government policy. The models developed for the early settlements remain a strong influence. The first Labour Minister of Treaty Negotiations was Margaret Wilson. On her appointment as Speaker of the House in early 2005, she was followed in the role by Mark Burton. He was replaced by Deputy Prime Minister Michael Cullen in November 2007.

In June 2008, the Crown and representatives from seven Maori tribes signed an agreement relating to Crown forest land that was dubbed "Treelords" by the media,^[24] because of perceived similarities to the Sealord deal of the 1990s. Like Sealord, it relates to a single issue, but covers multiple tribes. The agreement contains only financial redress, on account against comprehensive settlements to be negotiated with each tribe within the Collective. The agreement is the largest to date, by financial value, at NZ$196 million worth of forest land in total (including the value of the Affiliate Te Arawa Iwi and Hapu share). In addition, but not counted by the government as part of the redress package, the tribes will receive rentals that have accumulated on the land since 1989, valued at NZ$223 million.^[25]

As at July 2008, there have been 23 settlements (counting the above) of various sizes.^[26] Except as noted above, settlements generally include financial redress, a formal Crown apology for breaches of the Treaty, and recognition of the group's cultural associations with various sites.

In November 2008, Chris Finlayson, a Wellington-based lawyer with experience in Treaty claims, was appointed Minister for Treaty Negotiations following the National Party victory in the 2008 election.

As well as the much publicised land and financial compensation, many of these later settlements included changing the official placenames. This has introduced significant numbers of macrons into official New Zealand placenames for the first time.^[27]

List of Treaty Settlements[]

Mana Motuhake and the Treaty[]

Waitangi Tribunal's Te Paparahi o te Raki inquiry[]

The Waitangi Tribunal, in Te Paparahi o te Raki inquiry (Wai 1040)^[58] is in the process of considering the Māori and Crown understandings of He Whakaputanga o te Rangatiratanga / The Declaration of Independence 1835 and Te Tiriti o Waitangi / the Treaty of Waitangi 1840. This aspect of the inquiry raises issues as to the nature of sovereignty and whether the Māori signatories to the Treaty of Waitangi intended to transfer sovereignty.^[59]

The first stage of the report was released in November 2014, and found that Māori chiefs in Northland never agreed to give up their sovereignty when they signed the Treaty of Waitangi in 1840. Although the Crown intended to negotiate the transfer of sovereignty through the Treaty, the chiefs' understanding of the agreement was they were only ceding the power for the Crown to control Pākehā and protect Māori.^[60] Tribunal manager Julie Tangaere said at the report's release to the Ngapuhi claimants:

Your tupuna [ancestors] did not give away their mana at Waitangi, at Waimate, at Mangungu. They did not cede their sovereignty. This is the truth you have been waiting a long time to hear.^[60]

In terms of mana motuhake He Whakaputanga, creating a Māori state and government in 1835 and/or Te Tiriti o Waitangi, and those who did not sign anything, thus maintaining mana motuhake.^[61] In relation to the former, a summary report (entitled ‘Ngāpuhi Speaks’) of evidence presented to the Waitangi Tribunal conclusively demonstrates that:

1. Ngāpuhi did not cede their sovereignty.
2. The Crown had recognised He Whakaputanga as a proclamation by the rangatira of their sovereignty over this country.
3. The treaty entered into by the rangatira and the Crown — Te Tiriti o Waitangi — followed on from He Whakaputanga, establishing the role of the British Crown with respect to Pākehā.
4. The treaty delegated to Queen Victoria’s governor the authority to exercise control over hitherto lawless Pākehā people in areas of hapū land allocated to the Queen.
5. The Crown's English language document, referred to as the Treaty of Waitangi, was neither seen nor agreed to by Ngāpuhi and instead reflects the hidden wishes of British imperial power.^[61][62]

Non-Signatory Iwi and Hapu

Ngati Tuwharetoa academic Hemopereki Simon outlined a case in 2017, using Ngati Tuwharetoa as a case study, for how hapu and iwi that did not sign the Treaty still maintain mana motuhake and how the sovereignty of the Crown could be considered questionable.^[61] This work was builds on the Te Paparahi o te Raki inquiry(Wai 1040) decision by the Waitangi Tribunal.

Criticisms[]

The Treaty settlement process has attracted criticisms from across the political spectrum since it began. As noted above, Māori were concerned that the level of redress provided was too low, and that the settlement process was subject to too much Crown control. Conservationists were concerned about the impact of claims to conservation land, and many Pākehā were concerned that settlements would directly affect them. Public Access New Zealand and the One New Zealand Foundation^[63] respectively were lobby groups formed to represent these views. In general, those who feel that the Treaty claims process has gone too far are Pākehā, while those who believe it does not go far enough are Māori. However, there are some exceptions on both sides: the politician who has perhaps been most prominent in arguing against the Treaty is Winston Peters, who is Māori, while there have been a number of Pākehā pro-Treaty groups.

However, during the 1990s there was broad agreement between major political parties that the settlement of historical claims was appropriate, within the confines of the government's policy to limit impact on private landowners and access to conservation land. Legislation enacting Treaty settlements was passed by Parliament with an overwhelming majority. On the claimants' side, support for a settlement was expressed through ratification among adult members of a tribe, in contrast with the early settlement attempts of the 1940s.

Over time, the consensus on the part of politicians has frayed. Winston Peters has critiqued the increasing number of claims registered at the Waitangi Tribunal, a result of the law which allows any Māori to lodge a claim, and suggested that a "Treaty of Waitangi Gravy Train" has formed around the claims process.^[64] The ACT party has echoed that criticism – despite stating that "claims should be promptly settled where land was unlawfully taken or improperly compensated, if we can identify the descendants of those who were wronged",^[65] they have never voted in support of Treaty settlement legislation, and coined the phrase "Treaty of Waitangi Grievance Industry",^[66] to describe the participants in the settlement process.

The Orewa Speech in 2004 saw the National Party for the first time take up the term "Treaty of Waitangi Grievance Industry". National's Māori Affairs spokeswoman Georgina te Heuheu, who was Associate Minister to Sir Douglas Graham, was replaced in the role by Gerry Brownlee. Specific criticism that members of the National Party have made against settlements is that they are not being negotiated quickly enough, that insufficient attention is being given to ensure that claimant negotiators have the support of their people,^[67] and that settlement legislation is giving inappropriate weight to the spiritual beliefs of Māori.^[68]

The Māori Party and Green Party both criticise Treaty settlements on the grounds that the Crown has too much power in negotiations, that settlements negotiated at an iwi level ignore the rights of hapu (clans or subtribes), and that settlement redress is too parsimonious.^[69]

While some disagreement remains, parties unanimously supported the legislation to implement the Te Roroa, Affiliate Te Arawa and Central North Island settlements, which were passed in September 2008.^[70]

Academic critique[]

Maori academics , Carwyn Jones,^[71] Margaret Mutu, , and Robert Joseph^[72] are critical of the processes of Treaty settlement.^{[73][74][75][76]}

References[]

Further reading[]

• Graham, Douglas (1997). Trick or Treaty?. Wellington: Institute for Governance and Policy Studies at Victoria University of Wellington. ISBN 0-908935-24-2.
• Orange, Claudia (2004). An Illustrated History of the Treaty of Waitangi. Wellington: Bridget Williams Books.
• Michael Belgrave; Merata Kawharu; David Vernon Williams, eds. (2005). Waitangi Revisited: Perspectives on the Treaty of Waitangi. Melbourne: Oxford University Press. ISBN 0-19-558400-7.
• Simon, Hemopereki (2017). Te Arewhana Kei Roto i Te Rūma: An Indigenous Neo-Disputatio on Settler Society, Nullifying Te Tiriti, ‘Natural Resources’ and Our Collective Future in Aotearoa New Zealand, Te Kaharoa. 9 (1), https://www.tekaharoa.com/index.php/tekaharoa/article/view/6/4
• Janine Hayward and Nicola R. Wheen (eds.). Treaty of Waitangi Settlements. Wellington: Bridget Williams Books.
• and (2017). Weeping Waters: The Treaty of Waitangi and Constitutional Change. Wellington: Huia.
• Katarina Gray-Sharp and Veronica Tawhai (2011). Always Speaking: The Treaty of Waitangi and Public Policy. Wellington: Huia.
• Jones, Carwyn (2017). New Treaty, New Tradition: Reconciling New Zealand and Maori Law. Vancouver: UBC Press.
• Linda Te Aho (2017). The false generosity of treaty settlements: innovation and contortion. In International Indigenous Rights in Aotearoa New Zealand (pp. 99–117). Wellington: Victoria University Press.

External links[]

• Key Māori claims, New Zealand Herald