Questions and Answers

Network Waitangi acknowledgements Network Waitangi wishes to acknowledge the following groups that have produced valuable resources on the Treaty of Waitangi and related issues, with apologies for those ? we have missed – Aotearoa Educators, Kia Mohio Kia Marama Trust, Koha Programme, Maori Congress, Maori Women’s Welfare League, New Zealand Maori Council, Nga Kaiwhakamarama I Nga Ture, Nga Tamatoa, Te Ahi Kaa, Te Kawariki, Waitangi Action Committee, Action For an Independent Aotearoa, arc (Aotearoa Reality Check/Anti-Racism Crew), Auckland Committee on Racism and Discrimination, Citizens Association for Racial Equality, Conference of Churches of New Zealand Programme on Racism, Double ? Take, Halt All Racist Tours, Justice and Peace Office and Bicultural Desk of the Auckland ? Catholic Diocese, Kawanatanga Network, Methodist Bicultural Desk, New Perspectives on Race, Pakeha Treaty Action, Pax Christi Aotearoa, Peace Movement Aotearoa, Playcentre Treaty Education Team, Project and Network Waitangi national and regional groups, Tamaki Treaty Workers, Te Tari Matauranga Maori (Manukau Institute of Technology), The Rowan Partnership, Theology and Racism Collective, Treaty Resource Centre, Waikato Anti-Racism Coalition, Waitangi Associates, Waitangi Consultancy ?? Group, and the YWCA. Design by Jenny Rankine, Contributors Words & Pictures, Auckland, with funding 1989 edition: National Committee, Project ?? support from the Treaty Resource Centre, Waitangi a project of the Auckland Workers’ Edu- 1993 edition: Network Waitangi cational Association (AWEA), PO Box 2008 edition: Moea Armstrong, Edwina 78-338, Auckland. Hughes, Ingrid Huygens, Joan Macdonald, Katherine Peet and Averil Williams, with ? First published 1989 special thanks to Moana Jackson and David Second revised edition 1993 Williams. Third revised edition 2008 Thanks to Heather McPherson for Published by Network Waitangi: proof-reading. ?Network Waitangi Otautahi, Christchurch Cover image: New Zealand Listener, used Community House, 141 Hereford Street, with permission. Christchurch 8001; email [email protected] Network Waitangi Whangarei, phone 09 436 ?1679, email [email protected] ?? Lead distributor: Treaty Resource Centre. Copyright © Permission is given for this publication to be copied, distributed or transmitted, providing it is properly attributed, not altered in any way, and is not sold for profit. ?? TREATY OF WAITANGI QUESTIONS AND ANSWERS TREATY OF WAITANGI Questions and Answers

Network Waitangi 2008

ISBN 978-0-473-13790-8 contents Introduction 6 Q20 What was the status of the Treaty in the early years? 18 ? Questions and answers 8 Q21 How did the Crown gain control of Q1 What contact was there between Maori Aotearoa? 20 and Pakeha before 1840? 8 Q22 How can a document 168 years old Q2 What other countries were interested in have relevance for today? 20 New Zealand? 8 Q23 Is Maori concern about the failure to Q3 What was the Maori response to the honour the Treaty something new? 21 newcomers? 9 ? Q24 Why is there so much trouble about Q4 What was British policy before 1840? 9 ? the Treaty now? 22 Q5 What was the Declaration of Q25 Why can’t we throw it out and start Independence? 9 again? 22 Q6 Who controlled the country around Q26 Why can’t we just get on with living as 1840? 10 one people? 23 Q7 Why was a treaty necessary? 10 ? Q27 What about separate or parallel Q8 What is the Treaty of Waitangi? 11 development? Isn’t that apartheid? 23 Q9 Who wrote the Treaty of Waitangi? 12 Q28 Why are there separate parliamentary ?Q10 Are Te Tiriti o Waitangi and the Eng- seats for Maori? 24 lish version the same? 12 Q29 What is the “Maori Option”? 25 ?? Q11 Which Treaty is the right one? 13 Q30 What does the Treaty have to do with Q12 So what did Maori grant under the Pakeha and other Tauiwi? 25 Treaty of Waitangi? 14 Q31 Did the Treaty allow for immigration Q13 Why are there differences between Te from other countries apart from Britain? 26 Tiriti o Waitangi and the English versions? Q32 What is the place of other peoples ? 14 apart from Maori and Pakeha in relation to Q14 Why was the British intention to gain the Treaty of Waitangi? 26 sovereignty not fully explained at Treaty Q33 But haven’t other ethnic groups apart signings? 15 from Maori also suffered from racism? 26 ?Q15 How does the Treaty recognise Maori Q34 Why can’t Maori look after their as tangata whenua, and Pakeha as tangata language and culture in the same way as Tiriti? 16 other ethnic groups do? 27 Q16 What is aboriginal (native) title? 17 Q35 Does honouring the Treaty of ?Q17 What about lands that were not Waitangi mean giving Maori all their land perceived as physically occupied by Maori back? 28 ? tribes? 17 Q36 Maori are only about 15 percent of ? the population ‑ why continue with the Q18 The Treaty is sometimes called a covenant. What does that mean? 18 Treaty? 28 Q19 Where was the Treaty signed? 18 ?? TREATY OF WAITANGI QUESTIONS AND ANSWERS Q37 What does the Waitangi Tribunal do? What can I do? 41 29 Appendices 43 Q38 Haven’t Maori gained from having European technology and other material 1 He Wakaputanga o te Rangatiratanga o benefits? 30 Nu Tireni/The Declaration of Independ- ence of New Zealand 43 Q39 Why do Maori say they want their land back when they don’t actually use it and just 2 Te Tiriti o Waitangi/The Treaty of let it go to waste? 30 Waitangi 44 Q40 What is being done to recognise the 2A Translation into English 45 Treaty and apply it? 31 2B Meaning in plain English 46 Q41 Why should we do anything now? 32 3 An English version written in March Q42 Doesn’t the Treaty make everything 1840 47 complicated and take up too much time? 32 4 Historical events and laws which breach Q43 Most Maori are happy with the status the Treaty of Waitangi 47 quo. Isn’t it just a few radicals stirring up 5 Further reading and websites 54 trouble? 33 Q44 What does cultural safety mean? 33 Q45 What are “the principles” of the Treaty of Waitangi? 33 Q46 What was the foreshore and seabed legislation about? 34 Q47 Isn’t it best to have the foreshore and seabed in public ownership? 35 Q48 What have United Nations human rights bodies said about the foreshore and seabed legislation? 36 Q49 What else did the UN Special Rappor- teur on Indigenous Peoples’ Rights say? 37 Waitangi, February 2006. Photo: Q50 Why are UN human rights bodies Gil Hanly. interested in the Treaty? 38 Q51 What is the UN Declaration on the Rights of Indigenous Peoples? 38 Q52 What does Treaty-based constitutional change mean? 39 Q53 What have Tauiwi done to change the situation? 40

TREATY OF WAITANGI QUESTIONS AND ANSWERS introduction Network Waitangi Contacts for Treaty educators ? etwork Waitangi is a non-govern- Whangarei Nmental organisation (NGO) which Network Waitangi Whangarei, phone 09 evolved from Project Waitangi. Project 436 1679, email [email protected] Waitangi was launched in 1986 to raise Auckland awareness of the Treaty among non-Maori. Tamaki Treaty Workers, PO Box 47-189, Then Governor General Sir Paul Reeves Ponsonby, Auckland; phone 09 360 8001, was its patron. email [email protected] The Network now links regional groups of The Rowan Partnership, 5 Charles Street, ?? independent, mainly non-Maori educators. Hauraki, Takapuna, North Shore 0622; Through educational workshops, study phone 09 486 0165, email groups, resource material, public seminars, [email protected] and submissions we assist Pakeha and other Treaty Resource Centre, PO Box 78- Tauiwi as tangata Tiriti (people of the Trea- 338, Grey Lynn, Tamaki Makaurau 1245; ty) to honour our Treaty responsibilities. phone/fax 09 274 4270, email Our workshops also study the effects of [email protected] ? colonisation, institutional and personal Bay of Plenty racism, and aim to support tangata Tiriti to Ruth Gerzon, PO Box 3017, Ohope, implement creative and equitable Treaty- Whakatane; phone 07 312 4932 or 0274 ?based relationships with tangata whenua. 308 149, email [email protected] We are committed to structural and insti- Wellington tutional change based on the Maori text of Wellington Treaty Educators Network, ? the Treaty of Waitangi. We acknowledge ? PO Box 6176, Wellington 6141; phone 04 Maori as tangata whenua. We recognise 382 8129 / 0274 343 199, email tmpc@ the Treaty as the basis of our nationhood xtra.co.nz - it was and is an invitation to enter into a Nelson relationship with Maori. ? Nelson/Whakatu Treaty Network, PO The Treaty underpins Pakeha culture; it is Box 815, Nelson; email elena.meredith@ one of the things that makes that xtra.co.nz culture unique and different from British or Christchurch European peoples in other lands. Though Network Waitangi Otautahi, Christch- ?Pakeha recognise those people as ancestors, urch Community House, 141 Hereford the Treaty adds a crucial dimension which Street, Christchurch 8001; phone 03 365 accepts and welcomes Pakeha as citizens in 5266, email [email protected] a Pacific nation. Waitangi Associates Ltd, PO Box 35-089, Christchurch; phone 03 383 3182, email ? [email protected] ? Dunedin ? Tauiwi Solutions, PO Box 3003, Dunedin 9045; phone 03 487 7088, email info@ tauiwisolutions.org.nz ?? TREATY OF WAITANGI QUESTIONS AND ANSWERS his book has been produced for peo- We invite readers to put aside their anxie- Tple who want to gain a basic knowl- ties and discover what the promise of the edge about the Treaty of Waitangi and its Treaty is really about. Non-Maori have implications. nothing to fear and much to gain from Over the past few decades, the Treaty has acknowledging the Maori text of the Treaty come into focus in Aotearoa/New Zealand. - that clearly shows Maori retained their Since it was signed in 1840, the Treaty has sovereignty while allowing the Crown to been seen by Maori as an essential part of exercise a form of governance. their understanding and ways of operating. However, this has not been so on the Crown’s side of the agreement - breaches were reported only days after its signing. Claims and petitions based on breaches of the Treaty have been made repeatedly by Maori to the British Crown and New Zea- land governments for more than 160 years, and more recently to the United Nations. The introduction of the Treaty of Waitangi into the public arena, particularly since the establishment of the Waitangi Tribunal in 1975, has led not only to a heightened awareness of this country’s history, but also to a sense of confusion and sometimes fear The beginning of the re-occupation of Takaparawha (Bastion Point) by Ngati Whatua and supporters in 1982. Photo: Gil Hanly. about what it all means. The idea of New Zealand as a country with “the best race relations in the world” has been seriously questioned. As a result some people would like to go back to the days when the Treaty was not generally part of non-Maori consciousness. To understand our present situation, we must journey back and re‑learn our history to understand the effects of the decisions made by those who lived before us. We can then move forward with a shared understanding and a renewed confidence in our abilities to resolve the problems we have inherited.

TREATY OF WAITANGI QUESTIONS AND ANSWERS questions and answers What contact was there Maori economic development expanded between Maori and rapidly from the 1820s, including a ship- ? building industry. Wheat, potatoes and but- Q1 Pakeha before 1840? ter were traded extensively, and agriculture y the time the Treaty was signed in flourished through to the 1850s with Maori B1840, British and Maori were no exporting their surplus to Australia and strangers to each other. The visitors found other countries around the Pacific. a highly developed sustainable civilisation Although most visitors in this early contact in which autonomous tribes operated their period were transients, there were approxi- ? own systems of health, education, justice, mately 2,000 permanent settlers here by ? welfare, spirituality, etc, all interwoven by a 1839, mostly in the far north. Estimates of common language, practising a particular the Maori population vary between 200,000 relationship with each other, the land and and 400,000. environment. After the European explorers like Abel What other countries Tasman (1642) and James Cook (1769), were interested in New ? British and American sealers and whalers Zealand? became active in this region of the Pacific. 2Q By 1800 about 50 whalers and sealers were ritish interests in the area were cer- living here, mainly on off‑shore islands. Btainly the strongest, but American and French activity was increasing. The Ameri- ?After 1800, contact became more regu- cans appointed a consul to New Zealand lar, with ships coming to harbours in in 1839. They had many trade interests Aotearoa to take on supplies or for rest and ? and had been making treaties in the Pacific ? recreation. since 1826. Commercial activities included timber, flax, Bishop Pompallier set up a French Catholic whaling stations, ship‑building and general mission in the Hokianga in 1838, and there trading in the mid‑1820s. By this time some were regular French naval visits to support traders had become permanent residents ? their missionaries and traders. Maori gener- on the coast, and had begun to live in ally distrusted the French because of the Maori villages and marry Maori women. massacre of 250 Maori in 1772 as retalia- Next came the missionaries and their tion for the killing of Captain Marion du families. The Church Missionary Society Fresne and his crew. ?(Anglican), headed by Samuel Marsden, As much as the British chose to enter into a established its first base in 1814, in the Bay contract with Maori people, so Maori chose of Islands. The Wesleyans (Methodists) fol- the British as the people with whom they lowed in 1822, and the Catholics in 1838. wished to strengthen their links. While missionaries were heavily involved in ? The words Maori and Pakeha came to be the trading activities, the actual rate of con- names each group used for each other. ? version to Christian practises and beliefs ? was slow. Literacy however was quickly adopted, and by 1840 more Maori than Pa- keha, per capita, were literate in their own language. ?? TREATY OF WAITANGI QUESTIONS AND ANSWERS What was the Maori As a representative of the British Empire, response to the Busby was seen by Maori leadership in the north as a conduit for understanding and 3Q newcomers? formalising the British system of interna- he initial welcome given by Maori to tional relations. One of his first tasks was The Declaration Tthe newcomers was soon strained as to assist rangatira in 1834 in the selection made it clear that more and more of the arrivals began to of a national flag, so that their ships would “no separate ignore Maori jurisdiction and act as if they be registered and therefore have official legislative authority” were a law unto themselves. access to Australian ports and be protected (kawanatanga) from piracy. Maori therefore began to discuss among would be allowed in themselves ways of dealing with the influx What was the Declaration the country, unless in ways that were consistent with tikanga appointed by of Independence? and the obligation to manaaki or care for rangatira visitors. Most hapu and iwi have histories “in congress of such discussions, aided in many cases Q5 assembled”, by the reported experiences of people who y 1835 Busby’s concerns about the had travelled overseas. Bcontinuing interest in New Zealand by other nations had increased. In particular, What was British policy the Frenchman Baron Charles de Thierry was known to be planning to come to before 1840? New Zealand to set himself up as a sover- Q4 eign. De Thierry was also claiming that he ntil the 1830s the British policy had bought a large amount of land in the Utowards New Zealand was one of Hokianga. reluctance to intervene formally. Britain had Busby collaborated with northern rangatira plenty of colonies already, and wasn’t really in the drafting of the Declaration of Inde- interested in one as far away and as small as pendence, which was signed on October this. 28, 1835. It declared this country an inde- In 1831, a petition was sent to King Wil- pendent state, and that full sovereign power liam IV from 13 rangatira and Samuel and authority (tino rangatiratanga) resided Marsden, requesting that the King become in rangatira. a “friend and guardian of these islands”. The Declaration’s signatories, 34 rangatira, The petition outlined concerns about called themselves the Heads of the Con- takeovers from other nations and asked that federation of the United Tribes of New Maori tribes be protected from the miscon- Zealand and agreed to meet at Waitangi in duct of British citizens who were living in the autumn of each year to frame laws for and visiting New Zealand. the regulation of trade and the peace and The lawlessness of Pakeha was reaching good order of the country. alarming proportions by this time, with An invitation was also extended to south- incidents occurring around the country. ern rangatira to join the Confederation and Among these were murders and enslave- sign the Declaration, and 52 around the ments of people in the South Island. country had signed by 1840. Partly for humanitarian reasons, but pri- Importantly, the Declaration made it clear marily to protect British trade interests, the that “no separate legislative authority” British government appointed James Busby (kawanatanga) would be allowed in the to act as British Resident in New Zealand. country unless appointed by rangatira “in James and Agnes Busby arrived in May congress assembled”. 1833 and set up the Residence at Waitangi.

TREATY OF WAITANGI QUESTIONS AND ANSWERS The Crown was invited to give its assistance “In 1857 the Bay of Plenty, Taupo and and to ensure that others did not infringe Rotorua natives ‑ being about 8,000 upon the independence of the rangatira. people - had upwards of 3,000 acres The use of North American concepts such of land in wheat; 300 acres in potatoes, Maori travelled as ‘independence’ and ‘congress’ in the nearly 2,000 acres in maize, and upwards Declaration stems from Maori knowledge throughout of 1,000 acres of kumara. They owned nearly 100 horses, 200 head of cattle, of international politics and history, with the world, and 5,000 pigs, 4 water‑powered mills, 96 some rangatira having had extensive con- traded both tact with indigenous Americans and other ploughs, as well as 43 coastal vessels nationally and colonised peoples in their travels. In par- averaging nearly 20 tons each.” R Firth, ticular, they were aware of how the Abo- internationally, Economics of the New Zealand Maori, page 449. riginal people were treated by the British in adopting new Australia. technology Maori continued to gain literacy. The written word not only provided a new way of Busby forwarded the Declaration to Britain, and commerce which formally recognised New Zealand’s inter‑hapu and inter‑tribal communication, successfully. sovereign independence in 1836. but opened up more trading opportunities. See Appendix 1 for a copy of the Declaration of Why was a treaty Independence. necessary? Who controlled the 7Q country around 1840? s Pakeha disregard of Maori author- A ity and the Declaration increased, 6Q many rangatira began to consider treating hroughout this time New Zealand was with the Crown to ensure that those whom Tfirmly under Maori control. Charles Darwin called “the refuse of soci- “... the cultural framework of New Zea- ety” were held accountable for their actions. land in 1840 was still essentially Polyne- Treaty-making, the process of making sian, all European residents absorbed agreements between polities, has a long Maori values to some extent; some history in Maori politics. Ngati Kahungunu Europeans were incorporated, however knew such agreements as mahi tuhono, or loosely, into a tribal structure; and the ‘work to draw the people together’. basic social divisions were tribal, not the The idea of treating with the Crown was European divisions of race, class or sect. therefore an affirmation of rangatiratanga The history of these years is of tribal and a recognition that each polity should be societies interacting with each other responsible for its own people. and with European societies, still being During his six year term of office Busby traditional but undergoing major cultural was often criticised for his ineffectiveness, change.” JMR Owens, The Oxford History particularly in dealing with the criminal of New Zealand, page 29. offending of the settlers. His requests to Maori travelled throughout the world, and Britain for assistance, in the form of troops traded both nationally and internationally, and a warship, were turned down. adopting new technology and commerce He had no power of arrest because he was successfully. The first person to import a appointed as a civilian. His role became that herd of dairy cows to the country was a of mediator and negotiator between Maori northern rangatira, Taiwhanga. and Pakeha. By the late 1830s speculative land pur-

10 TREATY OF WAITANGI QUESTIONS AND ANSWERS chases of dubious legality were taking place Because Britain had recognised Maori around the country. In 1838, the more rights in the Declaration of Independence, law‑abiding settlers, traders and missionar- and because this was “binding on the faith ies petitioned the British Crown asking for of the Crown”, no claim could be made on a more effective presence than Busby could Because Britain New Zealand without Maori agreement. provide. had recognised Hobson arrived in New Zealand on 29 January 1840. Busby himself proposed to the Colonial Maori Office that a protectorate was needed, rights in the Treaty‑making was a long‑established with British officials advising Maori lead- instrument of British colonial policy, so Declaration of ers on the country’s administration. His although Hobson did not land with a treaty report also stated that before too long New Independence, already fully drafted, many of the guaran- Zealand “would be destitute of a single no claim could tees which would be included had been aboriginal inhabitant”, an exaggerated claim be made on expressed in earlier treaties. designed to secure British intervention. New Zealand The situation in New Zealand at the time What is the Treaty of without Maori was monitored by humanitarian groups Waitangi? based in London such as the Aborigines agreement. Protection Society, which was concerned 8Q about the impact of colonisation on indig- treaty is a legally binding international enous peoples. Ainstrument agreed and signed by two or more sovereign nations. The Treaty of They had an ally in the Secretary of State Waitangi is thus an agreement which forms for Colonies, Lord Glenelg, who was op- a contract or covenant between the Crown posed to the plans of the New Zealand and Maori hapu through their rangatira. Company to establish a colony based on the principles of Edward Gibbon It was signed on February 6, 1840, by Cap- Wakefield. tain Hobson, representing Queen Victoria, and eventually by more than 500 Maori However, the departure of settler‑laden ‘Maori sovereignty is leaders. It was written in Maori and called New Zealand Company ships for Port good for all NZers’, Te Tiriti O Waitangi. Nicholson in 1839, without official parlia- Network Waitangi mentary sanction, prompted the Colonial Whangarei banner It recognised the rights of Maori as tangata Office to rethink its position. at a demonstration whenua of Aotearoa, as set out in the Dec- against the Marsden laration of Independence. It enabled the Accepting colonisation as an “inevitable Point Port, 1996. peaceful acquisition of land for settlement measure” and to purposes and ensured that immigrants protect British trade could come and live here in peace. and economic interests, the new sec- It allowed the Crown to exercise limited retary, Lord Nor- governorship (kawanatanga) in order to manby, sent Captain control British settlers’ behaviour and regu- William Hobson to late their settlement. New Zealand. He In the Treaty, the word Pakeha meant all was instructed to those living in New Zealand without laws acquire sovereignty to cover them. It included all non-Maori. over the whole or In the Declaration of Independence, the any parts of the rangatira expressed their desire to protect country that Maori Pakeha who were here to trade or settle. wished to cede (give up), by negotiating a Treaty.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 11 In the Treaty, the Queen agreed to arrange The Williams translation is Te Tiriti o governorship over Pakeha living here with- Waitangi, the document that was agreed to out British law. Maori were abiding by their on February 6 and thereafter. A subsequent own laws. version, written in English in March, differs In return, the Crown guaranteed the greatly from Te Tiriti o Waitangi itself and continuance of Maori authority and sover- this is why some people believe there are eignty (tino rangatiratanga) over their lands, two versions of the Treaty. villages, and everything else they treasured A copy of this subsequent version carries - including language and cultural customs the signatures of 32 rangatira who signed it - and accorded Maori similar rights to those One of several at a Church Mission meeting at the Waikato of British people. It also protected reli- postcards Heads, and seven rangatira who later signed gious freedom. developed by the in the Manukau area because a copy of the Waikato Anti- See Appendix 2 for copies of Te Tiriti o Waitangi, Racism Coalition for Maori text was not available. its translation into English, a plain English trans- Treaty education lation, and an English version, written in March at agricultural field Are Te Tiriti o days. Design: Jamie 1840. McCormack. Waitangi and the Eng- 10Q lish version the same? o. Te Tiriti o Waitangi confirms NMaori authority and sovereignty, while the English version states that Maori gave their sovereignty to the Queen - this is a total contradiction.

Preamble The preamble is fundamentally about the commitment to a peaceful future. There are differences between the two texts and these are reflected in the following articles.

Who wrote the Treaty of Article I Waitangi? Te Tiriti o Waitangi uses a transliteration of the word governorship ‑ kawanatanga. This 9Q did not mean a transfer of authority from aptain William Hobson brought Maori to British, but allowed the setting up Cwritten instructions from the Colo- by the Crown of a limited legal and admin- nial Secretary, Lord Normanby, but James istrative system for British subjects migrat- Busby, the British Resident, and Hobson’s ing here. secretary, Freeman, did the actual drafting from those instructions. However the English version says the Queen has total power and sovereignty The English language draft was then trans- over everything and everybody. lated into Maori by the Reverend Henry Williams, a missionary who had been here Article II for more than 20 years, and his son Ed- Te Tiriti o Waitangi states that Maori hapu ward. This English language draft has never (through their rangatira) retain “unqualified been found. exercise of their chieftainship (tino rangatiratanga) over their lands, villages and all their possessions (taonga)”.

12 TREATY OF WAITANGI QUESTIONS AND ANSWERS In te Tiriti, te tino rangatiratanga has a In summary, the Treaty guarantees to Maori much broader and more profound mean- full control and authority over their own ing than the English version, which only people, lands and culture - including their guarantees to Maori “the full, exclusive social, political and economic relationships and undisturbed possession of their lands and institutions. and estates, forest, fisheries, and other properties…”. Which Treaty is the The word taonga in te Tiriti is not limited right one? to property and possessions, as stated in the English version, but includes all things held 11Q precious: for example, language and culture. e Tiriti o Waitangi, the Maori text, has Tprimacy for several reasons. Article II also sets out a procedure for 1. Because Maori culture in 1840 was buying and selling land. Te Tiriti allows the primarily an oral one, what was said at the Crown to purchase, lease or rent land if time would matter much more than what the hapu consents - hapu had to give the was signed (the opposite of the British Crown the first right to buy (the right of model). The missionaries verbally as- pre-emption). But in the English version, sured rangatira that their sovereignty was Maori can sell only to the Crown (exclusive acknowledged. right of pre-emption). 2. Te Tiriti o Waitangi includes Hobson’s Article III signature on behalf of the Crown and 543 Te Tiriti accords to Maori similar rights to signatures of rangatira, and is therefore those of British people, additional to the legally the ‘document of significant signa- rights they already enjoyed in their own so- ture’. An English version has only 39 sig- ciety. In the English version, Maori would natures - and those 39 rangatira had debat- become British subjects. ed the meaning of the Maori text, before signing what they believed was te Tiriti. Article IV 3. In law, when the intent or meaning of When the intent At the first Treaty signing, two church a legally binding contract is not clear, the leaders, Bishop Pompallier (Catholic) and or meaning of principle of contra proferentem applies - this William Colenso (Anglican), recorded a dis- a legally binding means that the decision goes against the cussion on religious freedom and custom- contract is not party that drafted the ambiguous provi- ary law. In answer to a direct question from sions; in this case, the Crown. clear ... the Pompallier, Hobson agreed to the following 4. This principle, when applied to treaties decision goes statement which was read to the meeting between indigenous peoples and govern- before anyone signed: against the party ments, suggests the meaning of the indig- “The Governor says the several faiths that drafted enous language text has precedence over (beliefs) of England, of the Wesleyans, the ambiguous other understandings. of Rome, and also Maori customs and provisions; in this 5. As well as the contra proferentem prin- religion shall alike be protected by him.” case, the Crown. ciple, it is necessary to remember that all The English version does not record this of the discussions at the signings were in guarantee, but some rangatira, at the first Maori. In Maori law the words spoken were and subsequent signings, signed the Treaty crucial. Indeed Sir James Henare once said on the strength of Article IV alone, which that the key to the Treaty’s meaning and they saw as guaranteeing continuance of mana lay in the Maori text – “ko te mana te their way of life. kupu, ko te kupu te mana”.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 13 6. Finally, the population was something Historian Dr Claudia Orange notes that like 200,000 Maori and about 2,000 Pakeha their agreement was secured on missionary at the time of the signing. It is absurd to advice, following a debate on the articles of suggest that those rangatira who signed the Maori text: It is clear from Te Tiriti would have voluntarily given up “The explanations given at treaty sign- reports of the their power to a foreign entity, after hav- ings support the conclusion that though ing declared their national sovereignty and Treaty signings Maori expected the treaty to initiate a independence just five years previously. and subsequent new relationship, it would be one in So there are several grounds, logical, legal which Maori and Pakeha would share inter‑tribal hui, and moral, for giving precedence to Te authority... Maori were encouraged to that it was Tiriti o Waitangi over the English version. believe that their rangatiratanga would impossible Despite this, in 1975 the New Zealand par- be enhanced… and that Maori control for Maori to liament required the Waitangi Tribunal to over tribal matters would remain.” From give equal weight to both texts, the ration- The Treaty of Waitangi, page 42. relinquish their ale being that both carry signatures. It is clear from reports of the Treaty sign- sovereignty. ings and subsequent inter‑tribal meetings, Rangatiratanga So what did Maori that it was impossible for Maori to relin- was handed grant under the Treaty quish their sovereignty. Rangatiratanga was down from of Waitangi? handed down from ancestors and exercised 12Q by rangatira in concert with the people. ancestors and awanatanga, or governorship, was al- exercised by Klowed to Queen Victoria in Article I. Why are there rangatira in Hobson, as her representative, was to have governorship over British subjects, along- differences between concert with the side the sovereignty of rangatira who were Te Tiriti o Waitangi people to continue to govern their respective hapu. 13Q and English versions? Thus the concept of dual or parallel exer- he differences occurred in the transla- cise of power and governance was agreed Ttion of the original English draft into to by the rangatira of the independent state Maori. of New Zealand. The translator, Henry Williams, would The rangatira who signed the Treaty had have known that if he had used the words now allowed for “a legislative authority rangatiratanga or mana in Article I (which are separate from themselves”, as set out in the closest to the meaning of sovereignty), the Declaration of Independence, to exist. rangatira would never have agreed to the While the practicalities and boundaries of Treaty. this complementary exercise of power were They could not have given up their rangati- not detailed in the Treaty itself, the signato- ratanga or mana. In fact, the reason many ries believed in principle it was possible for agreed to sign was that their rangatiratanga two peoples to share one country, was specifically confirmed in Article II. keeping their respective cultures and autonomy intact. Williams certainly wanted the Treaty to be signed and there have been many opinions Dual sovereignty is now sometimes called about why he used kawanatanga instead. the promise of the Treaty. One view is that Williams believed that The English version states that Maori Maori welfare would best be served by would cede their sovereignty but the major- accepting British colonisation. ity of rangatira did not sign that document, Or perhaps he believed that securing an and neither did Captain Hobson. agreement between the parties on the day,

14 TREATY OF WAITANGI QUESTIONS AND ANSWERS based on goodwill and his own assurances, he missionaries and Hobson concen- was of paramount importance, and that any Ttrated on the protection and guaran- compromise he had made in translation to tees being offered. When discussing the secure that deal, could be worked out later. setting up of British authority, they spoke Many Another view is that Williams may have of it in relation to the Pakeha lawlessness in assumed, like others at the time, that Maori the country i.e. Pakeha would be required missionaries, to live by the laws of Britain. could not claim sovereignty in any interna- including tional sense, so by including rangatiratanga Williams softened the impact of British Williams, had a in the second Article, it safeguarded what colonial intentions by putting the Treaty vested interest they did have. This belief clearly was at into the context of the Queen wishing to odds with the British Government’s recog- establish a personal relationship with the in land. After nition of the Declaration of Independence. Maori people. the Treaty, The 1846 and 1852 constitutions provided Some bilingual Pakeha settlers tried to Williams had for Native Districts and in 1840 it might point out the differences in understandings confirmed legal well have been assumed (and desired) by and intentions. Some rangatira refused to title to 9,000 Williams that the vast majority of the coun- sign as a result of this, their own experi- try would be governed by Maori as Native ences, and knowledge of the effects of acres of valuable Districts, while English law applied only to European colonisation on other indigenous land. Missionary the few Pakeha settlements at Kororareka, peoples. Others believed the 1835 Declara- interests Port Nicholson and Auckland. tion was sufficient. generally Thus the frequently reiterated views of ran- The missionaries had a sense of urgency by depended on gatira in later years that the Treaty provided February 5, as food supplies for the people working with for English law for settlers and tikanga for gathered at Waitangi were running out and Maori may not be inconsistent with what they knew many Maori were about to leave. rangatira of the Williams had in mind. As a result Hobson was called to shore people among th Also, many missionaries, including Wil- early on the 6 to complete the process a whom they day earlier than planned. liams, had a vested interest in land. After lived. Hence the Treaty, Williams had confirmed legal Lord Normanby’s instructions to Hobson Busby and title to 9,000 acres of valuable land. Mis- however, had been very clear: he was sup- sionary interests generally depended on posed to have negotiated a treaty which Williams wanted working with rangatira of the people both sides understood fully and with the rangatiratanga among whom they lived. Hence Busby and “free and intelligent consent of chiefs”; to be given Williams wanted rangatiratanga to be given to obtain sovereignty - but only if Maori recognition by recognition by the Crown. were willing to cede it; and to obtain land the Crown. “Whatever Williams intended, it is clear - but only if Maori retained enough for that the Treaty text, in using kawanatan- their own purposes and would not be ga and rangatiratanga, did not spell out disadvantaged. the implications of British annexation.” Much discussion took place about the Claudia Orange, The Treaty of Waitangi, retention of land and the continuation of p 42. Maori authority and status. These issues were of utmost concern to rangatira as Why was the British many of them had already experienced the intention to gain greed of land speculators. sovereignty not fully The Treaty clearly spelt out that Maori au- Q14 thority was not only confirmed but would explained at Treaty signings? be further enhanced by the Crown.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 15 However Hobson, who did not understand federation of the Hapu of New Zealand the Maori language, wrongly presumed and the other chiefs”. sovereignty had been ceded and made a The whole Treaty is based on recognition unilateral proclamation of sovereignty over of pre‑existing sovereignty and indigenous While the Treaty the North Island on 21 May 1840, on the rights, the continuance of which would be grounds of the cession of sovereignty as gave the Crown guaranteed and protected by the Crown. stated in Article I of the English version. the right to form However following the signing, the huge Major Thomas Bunbury, who had been a government influx of new settlers who arrived (about appointed to gather Treaty signatures in the here for British 60,000 over the next 20 years) did not learn south, made two proclamations of sov- the Maori language, and arrived with a firm settlers, it did ereignty ‑ one on June 5, 1840 at Stewart sense of their entitlement to land, bought Island (Rakiura) which was claimed on the not give it rights fairly or not. grounds of Cook’s “discovery”, the second over and above on June 17, 1840 over the South Island Many had racist attitudes towards Maori, other migrant (Te Wai Pounamu), after the signing of the believing in the inherent superiority of the Treaty by some South Island rangatira. groups, nor over British, particularly the English, way of life. tangata whenua. This was well expressed throughout the However, we cannot assume that “sover- creation of the British Empire. eignty” was an unambiguous legal concept in 1840, and that it was foisted by deceit “..the native race is physically, organical- on Maori. “Sovereignty” was and still is ly, intellectually and morally, far inferior a highly contestable and highly contested to the European. No cultivation, no concept. education will create in the mind of the present native As at 1840 the British had not refined their race that refine- thinking on the differences between colo- ment of feeling, nies, protectorates and protected states. It that delicate is possible that Williams and Busby, at least, sensibility and hoped the Treaty would allow two decision- sympathy, which making systems to co-exist. characterize Whatever the British intent, it is interesting the educated to note a 1999 United Nations study which European ...the pointed out that generally, indigenous peo- Maori [is] an ples signing treaties with European coun- inferior branch tries viewed them above all as treaties of Banner from the of the human family.” Southern Cross, Pakeha ‘No Raupatu peace and friendship, designed to organise in Our Time’ 1844, page 18, quoted in Proud to Be White, peaceful coexistence in their territories. campaign, linking Angela Ballara. the foreshore and Today, people often feel that Pakeha refers How does the Treaty seabed legislation to earlier raupatu to people of British descent, and other recognise Maori (confiscations), white ethnic groups. This is based on the as tangata whenua, launched on 28 fact that it was British settlers who, through 15Q October 2003. the Constitution Act in 1852, assumed and Pakeha as tangata Tiriti? Photo: Peace Movement authority over New Zealand and began n the preamble to the Treaty the prior Aotearoa. passing laws on behalf of all settlers. Irights of Maori - as set out in the Dec- laration of Independence five years earlier These laws discriminated against Maori - are recognised and acknowledged by nam- and also against many non-British settlers, ing those with authority: “The Chiefs and such as the Chinese. While the Treaty gave Hapu of New Zealand”, “the Maori people the Crown the right to form a government of New Zealand”, “the Chiefs of the Con- here for British settlers, it did not give it

16 TREATY OF WAITANGI QUESTIONS AND ANSWERS rights over and above other migrant groups of compensation (see Q.46). (Tauiwi), nor over tangata whenua. Many laws like the Wastelands Acts, Public Works Acts and Maori Land Court provi- What is aboriginal sions, have been aimed at removing Maori (native) title? property rights guaranteed in both texts of the Treaty and by aboriginal title. Much Q16 more land was taken from Maori through he legal doctrine of aboriginal (native) such laws, than was seized by warfare. Ttitle comes from European international law and British imperial policy in the What about lands that 18th and 19th century. It is called a com- Maori common were not perceived as mon law doctrine, and judges have stated law rights to physically occupied by that it is an important feature of New land, forests, 17Q Zealand common law. Common law rights Maori tribes? would exist even if the Treaty had not been fisheries and he instructions given to Hobson by signed. other resources Tthe Colonial Secretary, Lord Nor- The doctrine binds the Crown to recog- would exist even manby, recognised that Maori tribes held nise Maori customary rights in respect of if the Treaty had title to all land in New Zealand. “... Maori lands, forests, fisheries and other resources. not been signed. title to the soil and to the Sovereignty of These rights remain until they are legally New Zealand is indisputable, and has been extinguished either by Crown purchase, or solemnly recognised by the British govern- legislative action. ment”, he wrote in 1839. Unlike many other countries with two tiers Hobson was requested to purchase those of government, the New Zealand parlia- lands not occupied by Maori, with an ment assumes the power to pass the laws it important proviso: that he did not pur- wants, claiming parliamentary sovereignty. chase “... any Territory the retention of Under this system, legislative action to ex- which by them would be essential or highly tinguish native title can be imposed without conducive, to their own comfort, safety or the consent of, or compensation to, the subsistence”. custom right-holders. The first two Governors continued to Apart from Acts of Parliament, extinguish- acknowledge that the Treaty recognised ment of these rights must have the consent Maori title to the whole of Aotearoa/New of the owners, who must be paid compen- Zealand, and it wasn’t until the late 1840s sation, or native title continues. with increasing pressure from settlers that ‘unoccupied’ land was classified ‘wasteland’. Courts have generally not dealt with any Such areas provided the main sources of principles deriving from the Treaty unless uncultivated food gathered by Maori. it is specifically mentioned in an Act. But they can act on the principles of common Governor Grey undertook large scale ‘pur- law, which the Court of Appeal did in 2003 chases’ of immense areas of ‘waste land’ when it ruled that the iwi of Marlborough in the South Island, especially, and some Sounds could bring customary right claims of the North Island in order to extinguish to the Maori Land Court. native title (according to the Crown). This is the policy that followed from the Native The Foreshore and Seabed Act of 2004, Land Purchase Ordinance 1846 and the which overruled that decision, is an exam- Symonds case (1847). ple of legislative action which extinguished common law native title without the consent of hapu or iwi, and without payment

TREATY OF WAITANGI QUESTIONS AND ANSWERS 17 The Treaty is Where was the Treaty sometimes called a signed? 18Q covenant. What does 19Q that mean? n February 6, 1840 at Waitangi, it he Treaty is sometimes referred to Owas signed by about 43 rangatira. Te Tas a covenant to describe a binding Tiriti o Waitangi, the Maori text, was then spiritual relationship. In the Old Testament taken around the country and another 500 of the Bible, a covenant was made between signatures were gathered at different places God and the people of Israel. In the New around the country. Testament, a covenant was made between An English version was signed by 39 ran- God and the Church. For some Maori the gatira only, in Waikato and the Manukau, Treaty was and is seen in the same way - be- after debate centred on the meaning of the ing referred to as a sacred covenant. articles of the Maori text. Several women Whereas a legal contract is witnessed by were among those who signed. people with the state as guarantor, cov- Some would not sign the Treaty, for exam- enants are witnessed by God with God ple Te Heu Heu of Ngati Tuwharetoa, and as the guarantor. The Treaty of Waitangi some were never invited to sign. Some had is seen as a living document with a much already signed the Declaration of Independ- wider context. ence and did not want any separate legisla- There is concern about it being taken into tive authority allowed into their country. the narrow legal framework where the spiritual element is being ignored. Even legally, What was the status however, contracts remain in force unless Throughout our of the Treaty in there is an expiry date included, or until history, ordinary the early years? both parties agree to changes. Tauiwi have Q20 supported Maori part from Hobson’s proclamations of rights. Participants Asovereignty, the terms of the Treaty at the 2006 Tauiwi were initially kept, mainly because of the Treaty workers’ overwhelming economic, social and cultural gathering in Hamilton. power of the Maori majority, which was

18 TREATY OF WAITANGI QUESTIONS AND ANSWERS firmly grounded in tikanga. The three The Colonial Officers were unhappy with New settlers required the assistance of principles of these waivers, because profits made through the buying and selling of land had dropped. tribes, particularly for food. For example, the Kingitanga They also feared a decrease in the power of the tribes around Tamaki Makaurau (Auck- were that within land) supplied the town with nearly all its the Crown if Maori tribes competed with requirements of fruit, pumpkin, maize, its boundaries the Crown over land sales. potatoes, kumara, pigs and fish. no further land Grey was therefore directed to restore the Maori trade and economic interests grew in would be sold, Crown’s right of sole purchase (the English the 1840s and by the 1850s the greater part no alcohol version) when he took office in 1845, by of the tax revenue came from Maori. passing the Native Land Purchase Ordi- would be sold, nance of 1846, which further undermined The Colonial Office continued to insist that and the teaching rangatiratanga. the terms of the Treaty should be ob- of children was served, as is testified to in letters written to From 1845 to 1854 Grey claimed to have Governors Hobson, FitzRoy and Grey. to be in the purchased 32 million acres of land for Maori language. £50,000, mainly in the South Island. Some Concern grew about the exclusive pre‑emp- of it was sold at inflated prices. This and tion clause of the English version, which other land dealings put the colony on a required that Maori who wished to sell their sound financial footing, but failure to up- land could sell only to the Crown. But the hold the conditions under which some land Crown was buying land and selling it at was sold (eg the protection of reserved much higher prices. lands and resources) created misery for The Crown was also refusing to buy some dispossessed tribes. land off willing Maori vendors and would There was increasing pressure from set- set fixed prices which went against Article tlers for land through the 1840s and 50s. II of both texts ‑ “subject to the arrang- By then many tribes were refusing to sell, ing of payment which will be agreed to by and the Maori King Movement (the Kingi- them” (Te Tiriti o Waitangi), and “at such tanga) had been set up with its base in the prices as may be agreed upon” (English Waikato. version). The three principles of this movement Maori understanding of the Treaty was that were that within its boundaries no further they were required to give first offer to the land would be sold, no alcohol would be Crown, but they could sell to other willing sold, and the teaching of children was to be purchasers. Settlers were putting pressure in the Maori language. on the Governor because they had to pay greatly inflated prices to the Crown. However, the settlers’ desire to acquire land by any means possible led to the govern- In 1844, Governor FitzRoy waived the ment declaring the Kingitanga a rebellion Crown’s right to be sole purchaser of against the Crown, and using that as an land on the condition that a commission excuse to seize Waikato land by force. of 10 shillings per acre was paid to the government. At the same time, agricultural prices, particularly for wheat, took a nosedive and Each sale had to be checked by Protectors, markets collapsed. Pastoral farming showed and certain sacred sites were not to be sold. more advantages, further intensifying the Fitzroy later changed the fee to one penny demand for land. per acre. Whereas 600 acres had changed hands with the 10 shilling per acre fee, 100,000 acres went with the one penny fee.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 19 How did the Crown In the 1987 Maori Council court case gain control of against the Crown, the five (Pakeha) Court of Appeal judges talked about positive ap- 21Q Aotearoa? proaches to the Treaty for today’s world. n 1858 the numbers of Maori and The two parties to the Treaty, the Crown Inon-Maori were equal, at about 67,000 and Maori tribes, entered into a solemn each. In less than 20 years, the effect of commitment based on justice and the rec- contagious European diseases, conflict, ognition of Maori as the prior inhabitants land sales and alienation of land involving of this country. relocation, had resulted in a massive decline in the Maori population. At the same time, History shows that this commitment was immigrant numbers had spiralled from only not honoured by the Crown. In 1975 the During the 2,000 in 1840. Waitangi Tribunal was established. Al- though it seems to have been established land wars, the Once the numbers of Maori and Tauiwi principally to allay rising Maori protest of number of were similar, violence was used to take the time, it has had a key role in apply- British troops land. During the land wars, the number of ing the Treaty to what is happening in the British troops deployed was the equivalent deployed was country today. of one soldier to every three Maori men, the equivalent women and children. In the Muriwhenua Fishing Report of June of one soldier 1988, the Tribunal spoke of the practical What has happened since 1840, up to and application of the Treaty for the modern to every three including the present day, has been a proc- world: Maori men, ess of colonisation by successive Pakeha “Any impracticality today results not women and controlled governments through military force and the use of laws to - from the Treaty, but from our failure to children. heed its terms. The important point is  Take Maori land and resources, destroy- that there was, and still is, room for an ing the economic base of hapu and iwi agreement to be made”.  Impose systems based solely on English Had the Treaty continued to have been law honoured from the time it was signed, this  Undermine the practices of Maori cus- country would be a very different place tomary law, spirituality, health, education, today. language, cultural, economic and political Until recently non-Maori have not had to systems and institutions. face the implications of the Treaty. Most See Appendix 3, Historical events and some laws did not know about the Treaty of Waitangi that breach the Treaty of Waitangi. until television brought the accusations of the young Maori activists of Nga Tamatoa How can a directly to us in the 1970s. It is said of the document 168 Treaty that while Maori never forgot, non- Maori never knew. years old have Q22 In the past 30 years or so we have been relevance for today? challenged also to view our colonial history ust because something is old, doesn’t from a Maori perspective, and re-examine Jmean it isn’t relevant – some of our the idea that New Zealand ever had “the New Zealand laws are based on the Magna best race relations in the world”. Carta first signed in 1215. The Treaty has Some non-Maori are fearful of this change been described as a living document whose in perception, wrongly believing that they basic principles can be applied to any age. may incur losses personally. Others are

20 TREATY OF WAITANGI QUESTIONS AND ANSWERS working to honour the Treaty in positive ways, believing that it’s the putting right of injustices that will bring a unified future. Many NGOs that have made a commitment to foster practical Treaty relationships, have found both Maori and non- Maori have gained from the process.

Is Maori concern about the failure to 23Q honour the Treaty something new? aori have tried every possible avenue Msince 1840 to have injustice acknowl- Pomare, Sir Peter Buck and Sir Apirana Health Promotion edged and addressed. For example: Ngata. The Mana Motuhake Party was Forum consultation formed by MP Matiu Rata, while the Fore- meeting in 2000  on its Treaty Directly petitioning Queen Victoria, shore and Seabed Hikoi of 2004 gave birth successive monarchs, Governors General Understanding to the Maori Party, which won four seats in of Hauora in and parliaments. For example, in 1932 a the 2005 general election. Aotearoa-New Maori MP presented a petition with more Zealand (TUHA- than 30,000 signatures asking that the Trea-  Direct action including occupations, NZ) document, ty be made statutory. Pakeha MPs walked land marches (hikoi) and protests. Peace- which applied te out of the House to prevent it from being ful protests began as early as May 1840 Tiriti o Waitangi to when Hone Heke signalled his anger at the health promotion tabled, and no action was taken. practice. Photo: breaking of Treaty promises by felling the  Michelle Moir. Working through the courts, even tak- flagpole flying the Union Jack at Kororar- ing Treaty rights cases through the appeal eka. Other actions include occupations of processes to the Privy Council in Britain Bastion Point and Raglan, the land march before it was replaced by the New Zealand of 1975, and various hikoi from the 1980s Supreme Court. onwards.  Introducing a Bill of Rights in 1894 that  Handing down the stories of injustice was ignored by parliament. to successive generations to resolve.  Initiating peaceful protest and non-vio-  Initiating political and spiritual move- lent passive resistance, for example at Pari- ments like Kotahitanga, Kingitanga, Ring- haka in Taranaki, decades before Gandhi in atu and Ratana. India.  Starting Maori-centred social welfare  Fighting back when land was being and health projects and organisations. taken by force.  Initiating language immersion schools  Taking complaints about injustice to the (kohanga reo and kura kaupapa) and terti- United Nations, supporting the develop- ary education institutions (wananga). ment of the UN Declaration on the Rights of Indigenous Peoples, and making pres-  Researching and presenting claims to entations to the UN Special Rapporteur on the Waitangi Tribunal, despite inadequate the Rights of Indigenous Peoples. funding. The long history of attempts to be heard are detailed in many of the Wait-  Forming Maori political parties to influ- angi Tribunal claims. The Orakei Report ence governments through parliament. The sets out the efforts Ngati Whatua made Young Maori Party included MPs Maui through the courts, through parliament,

TREATY OF WAITANGI QUESTIONS AND ANSWERS 21 through Royal Commissions and through An example was Closing the Gaps (a phrase direct action. The Muriwhenua Report lists first coined in the 1960 Hunn Report on the efforts made through court actions, the education), a policy of the Labour govern- 93 petitions to parliament, and many major ment of 1999, later re-named Reducing hui since the 1860s. Disparities.  Gaining a public holiday for Waitangi The policy was dropped after National Day, broadcasting rights, and official lan- Party leader Dr Don Brash described it as guage status for te reo Maori. “race-based discrimination” in a speech at  Exercising environmental guardian- Orewa in 2004. ship (kaitiakitanga) over ancestral land and The Living Standards 2004 Report shows resources in the face of local government the gaps are still there. Forty percent antipathy and hostility. of Maori and 58 per cent of the Pacific population were in some degree of hard- Why is there so ship, compared to only 19 per cent of much trouble about Europeans. the Treaty now? It is the Many Pakeha now realise that our relatively 24Q dishonouring privileged way of life as a group is either ne of the common myths still held by based on assets and resources seized il- some people is that divisions are only of the Treaty O legally from hapu in breaches of the Treaty, being created now because of the recent through the or can arise from our competence in the focus on the Treaty. But when we study our Crown’s customs of the dominant culture. Both ad- history, it is clear that divisions have existed undermining of vantages amount to “race-based” privilege. since soon after the Treaty was signed. Maori power Governments have been unwilling to ad- Maori have been at the bottom of the and taking of dress the causes of inequality through socio‑economic ladder since the 1860s. But meaningful compensation for losses or there was little real contact between Maori Maori resources changes in decision-making processes. and urban Tauiwi until land law changes that has created Until these issues are faced it is likely that forced many Maori to move to the cities in the divisions in the 1950s. “trouble” will remain, and the call to honour society. our the Treaty will continue to be voiced. It is the dishonouring of the Treaty, through the Crown’s undermining of Maori Why can’t we throw power and the taking of Maori resources, that has created the divisions in our society. it out and start again? Since the Waitangi Tribunal was formed in 25Q 1975 to provide a process to examine his- here is nothing in the Treaty which torical and ongoing Treaty breaches, non- Tsuggests it was a temporary commit- Maori have become aware of the injustices, ment. It was entered into in good faith in and the divisions are finally beginning to 1840. If this contract were to be rescinded be acknowledged, although not yet signifi- it would take the agreement of both parties. cantly reduced. If any government were to bow to the Governments have tried unsuccessfully, wishes of people who want the Treaty various policies to reduce socio-economic thrown out, this would be no solution. differences after it became apparent that Distress and anger caused by historical assimilation policies do not do this. Treaty breaches and present-day injustices and inequalities would not disappear.

22 TREATY OF WAITANGI QUESTIONS AND ANSWERS It is argued that abolishing the Treaty, if it were possible to do so, would also abol- ish the right of parliament to exist and make laws. The Declaration of Independ- ence would remain the prior constitutional document. To quote Judge Durie: “…we must not forget that the treaty is not just a bill of rights for Maori…we must remember that if we are the tangata whenua, the original people, then the Pakeha are tangata Tiriti, those who belong to the land by right of that treaty.” The Treaty is also a bill of rights for non-Maori.

Why can’t we just Members of the These groups will have their own particular get on with living as Waitangi Tribunal history and stories to tell of what it is to be one people? at Orakei Marae in shaped by their culture, or combination of 1985. Left: 26Q cultures, both outside and within this South e began as two peoples, agreeing to Chief Judge Edward Pacific nation. share one country for our mutual Durie, Justice W Paul Temm and Sir benefit. Since then the Treaty has been Graham Latimer. When we can truly celebrate cultural dishonoured by one party, the group which Photo: Gil Hanly. diversity, we may be better able to achieve subsequently became more numerous and unity as a nation. For this to be achieved, more powerful. the particular indigenous status of tangata whenua must be recognised, and the Many calls for us to be one people need status and responsibilities of tangata Tiriti to be challenged. Often this really means understood. “let’s all speak English so I can understand what you’re saying”. A Treaty-based approach requires more than provision of equal opportunity in the What is a New Zealander now? Is he or ‘mainstream’ system. A Treaty-based multi- she a person who speaks only English, who ethnic future is one where the particular operates along only Pakeha cultural lines, role of Maori culture is valued, Maori who does not value or acknowledge Maori political, social and economic institutions - or other - cultural values and skills? Many are flourishing, and the needs of Maori are of those who talk about one New Zealand prioritised, while others’ rights to cultural come from this position. expression are also preserved. On the other hand, many Maori and Tauiwi are able to operate in two worlds, speaking What about both their own language and English. separate or parallel As diversity in immigration creates an in- development? Isn’t creasingly multi-ethnic nation, some people 27Q that apartheid? may find it more helpful to describe themselves as being from a particular culture, o. Apartheid is a political system for example, as a Chinese, Korean, Dutch, Nwhere one group holds all the power Pakeha, Dalmatian, Samoan or Tongan and strictly enforces and imposes total New Zealander. separation of different groups in order to maintain that power, as was demonstrated in South Africa.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 23 The basic differences between apartheid and separate development are -

 Under apartheid it is the powerful group that enforces separation  With separate development, where it occurs here, it is the powerless group that has chosen to separate temporarily. Separate development practices in Aotearoa/New Zealand are being implemented as a Maori response to Pakeha monoculturalism. Pakeha institutional practice can be cultur- ally inappropriate or uncomfortable for Maori (and other groups), making it difficult for them to succeed or receive the assistance they need. Separate, parallel, or independent development in a Maori way is a positive step to self‑determination.

Why are there A still from Te As a result, in 1867 northern MPs intro- separate parliamen Whare/The House, duced a Bill which provided for Maori tary seats for Maori? a Treaty education representatives - who might be European DVD, which depicts 28Q - elected by Maori men. ritish voting restrictions were in- the history of the Bcluded in the 1852 Constitution Act, Treaty relationship The Bill proposed four seats, three in the i.e. only male property owners with indi- as a contemporary North Island and one in the South, and it flatting story. vidual land titles could vote. Effectively, © 2008 Ugly Films; was accepted mainly because it preserved Maori contributed most of the revenue, Director/Writer the distribution of seats between the North through land sales and business, but had no Richard Green. and South Islands. representation. An amendment made it mandatory that the After the Maori Land Court was established Maori representatives be Maori - largely in 1864, settler politicians feared that Maori because the South Islanders were unhappy men might soon acquire the right to vote at the prospect of three more northern because they would in time possess an in- Pakeha MPs. dividualized right to property, and that this If the number of seats had been pro- might cause a political ‘imbalance’ in some portional to population numbers - at the North Island electorates. time there were 56,000 Maori and 171,009 It was thought the creation of three or four Tauiwi - in a house of 70 members, 20 Maori seats would eliminate that threat by would have been Maori. confining Maori voters to those seats. The number of Maori seats remained the In 1867 two more factors combined to cre- same until Mixed Member Proportional ate Maori seats. The government wanted Representation (MMP) was introduced in to capture Maori support for its pacifica- 1993. The number of Maori electorates is tion programme, and the West Coast gold now determined from the Maori roll on the rush tipped the number of seats in favour same population basis as the General roll. of the South Island, with the possibility of the capital moving south.

24 TREATY OF WAITANGI QUESTIONS AND ANSWERS What is the “Maori What does Option”? the Treaty have to 29Q 30Q do with Pakeha and he Maori Option was introduced in The culture other Tauiwi? T1975 to permit Maori to choose - for which has verything. It is the Treaty which gives a few months after every five-yearly census evolved through EPakeha the right to settle here. The - whether to be on the Maori electoral roll the descendants culture which has evolved through the or the general roll. descendants of British immigrants is now of British This option increased the number of Maori unique in the world and is defined by the seats to seven, by 2005. Although Maori, immigrants is word Pakeha. especially new voters, continue to opt for now unique in The word itself has no negative connota- the Maori roll, significant numbers of the world and is tions or meanings, being used in the Treaty Maori also change to the general roll, for defined by the to describe those who were not Maori. various reasons. word Pakeha. All Pakeha rights here are derived from the This, combined with increased immigration Treaty. The rights that Pakeha were prom- and the principle of proportionality, has ised under the Treaty have been honoured, prevented a further increase in the number but the rights that Maori were guaranteed of Maori seats, as the total number of seats have been largely ignored. is limited to 120. Tauiwi who do not identify as Pakeha have The 1986 Royal Commission on the Elec- a more complex situation. Since 1852, set- toral System said the Maori seats had gone tlers have been assigned their rights by the some way towards providing for political Pakeha-dominated government, rather than representation of Maori interests, but they by an agreement between Maori and Pakeha did not ensure that Maori electors had an authorities as indicated in the Treaty. effective voice. It recommended MMP as The Crown’s failure to provide effective the best system for those purposes, with or redress for historical breaches of the Treaty without the Maori seats. and to improve its relationship with con- When MMP was introduced in 1993, parlia- temporary Maori perpetuates the social ment decided that the Maori seats should and economic disadvantages Maori suffer. be retained, along with the Maori Option. These conditions delay genuine Treaty rela- However, unlike other important provi- The rights that tionships between Maori and non-Maori. sions of the Electoral Act which need a Pakeha were Collectively Cabinet now carries the Treaty 75 per cent majority to be changed, the responsibilities of the Crown, through Maori seats can be abolished by just 51 per promised under Ministers of the Crown. As the majority cent of parliament. the Treaty have of voters, Tauiwi have most influence in It should be remembered that Maori rep- been honoured, electing governments. resentation within Kawanatanga (a right but the rights Can we as voters fulfil our responsibility to provided to Maori in Article III of the that Maori were protect Maori rights? What might an hon- Treaty) is a fundamentally different concept guaranteed have ourable form of Kawanatanga look like? from the relationship between the Crown How could a more equitable decision-mak- and hapu leaders envisaged in Articles I and been largely ing arrangement with Maori be made? II of the Treaty. ignored.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 25 The assertion and practice of Treaty rights independently of government, as other cul- benefits us as non-Maori. For example, tures realise the effects of breaches of the Maori exercising collective rights in the Treaty on Maori as the indigenous people courts have prevented the loss of “public” of Aotearoa. resources to private or foreign ownership. If the Treaty promises had been honoured, Kaitiaki using sections of the Resource these relationships would have been for- Management Act have been able to stop malised with hapu from the outset. destructive development in some areas. Maori television and radio are enjoyed by But haven’t other all, Maori culture is internationally ac- ethnic groups apart claimed as unique and valuable, and con- from Maori also tributes substantially to national identity 33Q and the economy. suffered from racism? ur society has been organised on one Did the Treaty allow Oculture’s belief system, sometimes for immigration from unconsciously, and other ethnic groups other countries apart have been, and are, the victims of racism The assertion Q31 and prejudice. from Britain? and practice of Pakeha culture has its roots in British and Treaty rights he Treaty made arrangements for Brit- North European cultures who believed in ish people and others to come to this benefits us as T their own intellectual, moral and cultural country. But when the settler‑controlled superiority. Most institutions in Aotearoa non-Maori. government was formed in 1852, the au- New Zealand still express belief in the su- Maori exercising thority to formulate immigration policies periority of their ways of being and doing. collective was assumed, along with other powers, in direct breach of the Treaty. Institutional racism means basing all deci- rights in the sions on the norms and beliefs of only one courts have So it has been the government, rather than culture - thus discriminating against other joint agreement between Maori and the prevented the worldviews. All other cultures and language Crown, which has made decisions about groups, including Maori, suffer the effects loss of “public” who can come here, from what countries, of such racism - both institutional and resources and under what conditions they will gain personal. citizenship. to private The most recent immigrants are usually or foreign What is the place of scapegoated for economic problems. This happened to Chinese people in the 1800s, ownership. other peoples apart Dalmatian, Greek and Italian people in the 32Q from Maori and early 1900s, Pacific peoples in the 1960s Pakeha in relation to the Treaty of and 70s, and more recently to immigrants Waitangi? from Asia. t is useful for non-Pakeha tauiwi to come However, racism and prejudice are signs of Ito understand their role in relation to the a deep-seated fear of difference that resides Treaty of Waitangi. Because the Treaty has long after monetary prompts disappear. been dishonoured, other migrant groups “Pacific peoples were brought here have had no option but to relate only to the largely because industry in the 1960s government, in legal terms. needed cheap labour. Today they are Informal relationships are now being blamed for many of the ills of unem- forged with Maori by different groups, ployment and homelessness. We forget that as Pakeha, we are descended from

26 TREATY OF WAITANGI QUESTIONS AND ANSWERS Kaumatua at the launch of Maori Television in March, 2004. Photo: Gil Hanly.

migrants. How long do Pacific Island- people not only have to live within a system Since it has been ers have to be here before they lose the that promised to enhance and protect their Pakeha settler stigma of migrant? We forget too, the culture and did not, but they also have to culture which relationships which have existed be- fight for the very survival of their culture tween the white New Zealand govern- in the world. is responsible ment and the peoples of the Pacific.” All cultures need an economic base to for the present Ros Coventry and Charles Waldegrave, Poor thrive, and that has been largely removed expressions of New Zealand, page 67. from Maori through the processes of racism in New Since it has been Pakeha settler culture colonisation. Zealand, it is also which is responsible for the present expres- Other ethnic groups come to New Zea- the responsibility sions of racism in New Zealand, it is also land expecting that the culture here will of Pakeha- the responsibility of Pakeha-dominated be different from their own. Apart from institutions, organisations and communities, refugees, most of them make a free choice dominated to dismantle racism and prejudice. to come. They are prepared to adapt to institutions, some of the cultural ways here just as we organisations Why can’t Maori do when travelling overseas. look after their and They are able to adapt readily because they communities, to language and cul- can be confident that their cultures and 34Q dismantle racism ture in the same way that other ways of life are protected in their country ethnic groups do? of origin. For example, there is a whole and prejudice. nation protecting Greek culture; if Greek he short answer is that Maori always people living in other countries lose some Thave and continue to do so - despite of their own culture, it will not lead to the extremely difficult and frequently hostile loss of that culture on a world scale. circumstances. Other cultures have not suffered the same However, Maori culture should be en- colonial process in this country as Maori. hanced, nurtured and protected every day An enormous amount of Maori energy and without their having to ask for it. That’s resources has been diverted into the what the Treaty promises. survival of their culture. This continues to Aotearoa New Zealand is the only place the present day, against the powerful mo- where Maori culture can survive. Maori

TREATY OF WAITANGI QUESTIONS AND ANSWERS 27 nocultural attitudes, institutions and policies nalled an interest in the property. that prevail in New Zealand. More recently, the ongoing sale of Crown land which should have been set aside for Does honouring the settlement of Treaty claims, was high- the Treaty of lighted by the repossession or occupation Waitangi mean giving by hapu of land at Whenuakite (Coroman- 35Q del) and Rangiputa (Northland) following a Maori all their land back? decision by Landcorp to sell them. onouring the Treaty means that Maori These repossessions led to a review of the will, as they did before 1840, be able H sale of Crown land, with a new process to exercise their sovereignty, that is, their announced in September 2007. It is not yet control and authority, over all things that clear whether this will result in any im- are theirs. provement in the situation. Honouring the Treaty fully would mean re- Claims settled to date have featured differ- turning land and resources that were taken ent land being substituted for some of the illegally. This includes land sold under land taken, cash, apologies, specific agree- duress, for example to pay debts incurred ments on protection of sacred places, and while waiting for a case to come before the rights to participate in land management Maori Land Court, or to pay rates on com- decisions as a directly affected party. munally owned land. From 1999 to 2004, only 0.1 per cent of all Land that was confiscated by the govern- government spending was for Treaty set- ment (raupatu lands) because of Maori tlements. This amounted to less than 2 per resistance to colonisation, also comes under cent of the real value of Maori losses. this category. A very large part of every Waitangi Tri- Maori are only bunal historical claims inquiry concerns about 15 percent well-founded allegations that lands “sold voluntarily and for an agreed price” were of the population Aotearoa Action 36Q parted with in a number of ways that were Coalition members ‑ why continue with the Treaty? in flagrant breach of the Treaty. march against hen the Treaty was originally signed, the government’s Maori outnumbered settlers by at It used to be as possible to return to Maori fiscal envelope W the Crown interest in freehold land, or for in Whanganui in least 100 to one, but today Maori are the the Crown to buy or to pay compensation 1995. Photo: Leigh numerical minority. With future demo- for land that is now owned privately. Mitchell-Anyon. graphic changes it may be that Pakeha will However, a law change in 1993 prohibited the Waitangi Tribunal making recommendations concerning any land in private ownership. Unfortunately, there has been continual erosion of Crown resources for Treaty settlements through the sale of state assets and “surplus” Crown land. These sales have included land under claim. Many such sales in the 1990s were approved by the Cabinet Committee on Treaty of Waitangi Issues, with no appeal process for Maori claimants who had sig-

28 TREATY OF WAITANGI QUESTIONS AND ANSWERS again become the minority - but our Treaty negotiate directly with the government’s rights and responsibilities would remain the Office of Treaty Settlements. Parliament same. has the final approval when passing legisla- The Treaty is based on reciprocal rights and tion to enact a settlement. In most cases, responsibilities. It establishes that two deci- The Tribunal must take into account both sion-making systems can co-exist, that its the Tribunal has the English and Maori texts of the Treaty agreement over-rides the tenet of majority the authority in its deliberations, and must not “create rule, and it ensures that ‘the tyranny of the only to make a further grievance in its attempts to right majority’ is overcome by guaranteeing each others”. recommenda- party’s rights. It can also hear urgent current claims - for tions to Today, honouring that relationship between example, the Tribunal made recommenda- the parties has implications for all levels of parliament; it has tions on the foreshore and seabed propos- society ‑ government departments, parlia- no power als before the legislation was introduced, mentary systems, voluntary and commu- to enforce and on Maori rights to offshore minerals. nity organisations, families, businesses and The government ignored the Tribunal’s settlements or individuals. recommendations in both instances. decide on the There is a growing understanding that real The controversial “fiscal envelope” policy amounts of equity means successful outcomes for dif- of 1994 meant that an arbitrary limit of ferent groups in society, with success being settlements. $1 billion was put on the total of all set- defined by the group concerned, rather tlements - even before the evidence was than equity meaning just equal opportuni- heard. ties for individuals to participate in the Consequently, most settlements amount “mainstream”. to less than 2 per cent of the value of the assets taken. At the same time, claimants What does the must agree to the terms as a full and final Waitangi Tribunal do? settlement. 37Q Settlements described as “full and final” in he Tribunal was set up in 1975 to earlier times, most notably during the 1930s Tinvestigate claims of breaches of the and 1940s, have been renegotiated in more Treaty from 1975 onwards. In 1985 the Act recent years because they were unfair and was amended so that claims back to 1840 could not be considered as achieving any could be examined. The government ap- finality. points members of the Tribunal. It is unlikely that future generations will In most cases, the Tribunal has the au- feel realistic redress and reconciliation have thority only to make recommendations been achieved by the current settlement to parliament; it has no power to enforce process, or feel bound not to relitigate. settlements or decide on the amounts of Since 1999, government policy has been to settlements. negotiate settlements only with iwi, which In some limited instances, the Tribunal has excludes specific hapu and whanau claims; the power to make “binding recommenda- this policy has subsequently developed tions” for the return of certain lands to into a preference for negotiating only with Maori ownership, but it has only done this “large natural groupings”. once - in 1998 in relation to the Turangi Policies based on government definitions township claim. of who it will negotiate with, rather than Claimants can bypass the Tribunal and seeking Maori input into the most appropriate social structures for resolving histori-

TREATY OF WAITANGI QUESTIONS AND ANSWERS 29 cal Treaty breaches, have been criticised systematically and deliberately broken and challenged by Maori, the Tribunal and down. This has resulted in huge disparities others. between modern Maori and non-Maori in The government is also facing criticism for health, housing, employment, educational adopting a blanket approach through the achievement, income levels, prison incar- Office of Treaty Settlements, which prefers ceration, wealth, land holdings and so on. to work regionally, as opposed to address- ing hapu-specific claims. Why do Maori say they want their land The Crown chooses with whom it will negotiate, which has interfered with tra- 39Q back when they ditional relationships between and among don’t actually use it and just let it go hapu and has created new problems. to waste? Claimant groups are required to restructure aori and non-Maori have different their organisations along legislated lines be- Mattitudes to land use, to economic fore the government will finalise any Treaty activity, and to the relationship between settlement. human beings and nature. Maori reasons In 2006, parliament unilaterally ruled that for wanting their land back include not only all “historical” claims - which it arbitrarily economic need but also spiritual and ances- defined as those relating to Treaty breaches tral connections. arising before 1 September 1992 - must Maori used their land for commercial agri- be lodged with the Tribunal by September cultural production purposes for centuries 2008. before 1840 and until the mid‑1850s. Claims arising from breaches of the Treaty They were forced off the bulk of their pro- Policies based after 1993 will still be able to be lodged ductive land through confiscations, illegal with the Tribunal after that date. on government land deals and discriminatory legislation definitions of such as the 1953 Town and Country Plan- Haven’t Maori who it will ning Act, which made it illegal to build new gained from having housing on Maori land. negotiate European technol- Q with, rather It should also be noted that the legal prin- 38 ciple concerning land taken under various ogy and other material benefits? than seeking Public Works Acts - that it be offered back es, there have been gains from Euro- Maori input to the original owners when no longer re- pean (and other) technology. How- Y quired - was not applied to Maori land. Nor ever, the colonisation process has resulted into the most were Maori owners given compensation for in the destruction of economic prosperity appropriate land taken in this way. for whanau, hapu and iwi. social structures Until recently, Maori who retained land Before 1840 Maori had long-established for resolving were unable to receive the developmental systems of social, economic and cultural historical Treaty and rural grants available to non-Maori wellbeing, which they rapidly adapted to breaches, have farmers. Even now it is difficult to obtain the new environment. They had extensive finance for development on collectively communication with the outside world well been criticised owned land, and most banks will not lend before 1840, and were successfully develop- and challenged ... mortgages for housing on Maori land. ing and adopting new technology, as they did with the different economic system that One of the official criteria for private came with European contact. finance is to hold individual title. Much of the land that hapu and iwi retained is This process of adaptation was set back marginally farmable, the most agriculturally by colonisation, as Maori institutions were

30 TREATY OF WAITANGI QUESTIONS AND ANSWERS productive land having been taken by set- The High Court, the Court of Appeal and tlers, or by the Crown through legislation. the Privy Council have been required to The task of first tracing, and then gaining consider the validity of government actions the approval of many different sharehold- in the light of the Treaty. ers (often numbering in the hundreds) for For example, the government funded Maori a project, also makes new development television and radio stations only after extremely difficult. having been instructed to do so by a Privy Council ruling, in a case taken by the Maori Language Commission. With the replacement of the Privy Council by the New Zealand Supreme Court, it is likely that court will in future make rulings related to the Treaty. The Waitangi Tribunal continues its work researching historical and contemporary claims, and recommending redress and ways of resolving Treaty breaches. Many NGOs are recognising the Treaty in their structures, constitutions and decision‑making processes. The Anglican Church was among the first to change its constitution to enable Treaty-based decisions (with the addition of a Pasifika caucus). Waitangi Day “It is interesting to speculate on what protest, Wellington, Groups have made changes more easily the social and economic status of rural 1987. Photo: Gil than hierarchical government departments, New Zealand would be today if all land Hanly. but most departments have now included owners had been cursed with the system some reference to the Treaty at least in their imposed upon Maori land. New Zea- mission statements and in some policies. landers of European descent might have Recently even these developments have been poorly reflected in statistics if they been under threat from ministerial direc- found themselves in the same position.” tives to remove all references to the Treaty Doug Kidd, Minister of Maori Affairs, New from policy documents, action plans and Zealand Herald, April 20, 1993. contracts, for example, in the health and It is indisputable that Tauiwi have reaped disability sector. the profits from the use of Maori land. Sometimes token changes are made and From a total of 66 million acres, only about business continues as normal, but other 4 million acres remain in Maori collective changes result in progress toward better ownership. outcomes for Maori. “By Maori for Maori” What is being done initiatives have been successful in many areas of society, especially in health, educa- to recognise the tion and news media. Treaty and apply it? Q40 But some changes have prompted a news apu, iwi, and Maori organisations media backlash, and governments have Hhave consistently upheld the Treaty in become wary of openly supporting Maori their work. initiatives.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 31 The problems won’t disappear. If we don’t deal with them, the next generation will have to, or the next. Mahatma Gandhi once said: “The best test of a civilised society is the way in which it treats its most vulnerable and weakest members”. Non-Maori must take responsibility for challenging breaches of the Treaty, and in certain circumstances support Maori in their work towards independent political, social and economic institutions, primarily by removing non-Maori obstacles. Some Tauiwi are also questioning the ef- Foreshore and The presence of Maori Party MPs in parlia- ficacy of our monocultural institutions, for seabed campaign ment since 2005 has meant an independent example the prison system. They wonder if cartoon by Carol Maori insight on each Bill, Budget and na- Maori restorative justice practices may pro- Peters for Network duce better outcomes, not only for Maori Waitangi Whangarei. tional event is now available to the mainstream news media - including an examina- but for everyone. Family group conferences tion of the effects of each on Treaty rights. work well for tangata Tiriti too. The quality of Treaty education in schools When tangata whenua authority is is inconsistent, but improvements are be- recognised alongside governorship ing made. Tauiwi are now more exposed representing tangata Tiriti, New Zealanders to Maori realities, and able to experience will have fulfilled the promise of the aspects of Maori culture through Maori Treaty. Otherwise we accept injustice and television and radio. inequality as the norm. Through such exposure, it is hoped that the Doesn’t the Treaty “fear of the unknown other”, the basis of personal racism, can be reduced. make everything complicated and take Why should we do Q42 up too much time? anything now? hange can be difficult and the proc- Q41 Cesses take time to work through. But the benefits of having a fair and just society reaches of the Treaty have almost include harmonious relationships and always ensured that non-Maori benefit B cost-effective and equitable distribution of and that Maori have been denied access to resources. resources of all kinds. In fact, long term solutions ultimately Almost all institutions in Aotearoa New create a much more efficient use of time, Zealand do not operate on Maori tikanga, money and energy. cultural values, language or worldviews. Organisations that have addressed the Trea- Access to services for Maori usually re- ty in their structures and policies clearly quires them to relate to monocultural proc- show positive results. esses. This benefits people who belong to the dominant culture, and penalises those who do not.

32 TREATY OF WAITANGI QUESTIONS AND ANSWERS Maori have been resourced to be able to a sovereignty qualified by the Treaty” is put their own systems in place, and Tauiwi disputed by the government. benefit from being part of an organisation that respects and reflects our country’s dual What does cultural heritage. cultural safety The process makes it easier for ethnic mean? groups other than Pakeha to make further 44Q ne definition of cultural safety is changes to institutions that will benefit their where safe service practitioners rec- own members. O ognise, respect and acknowledge the rights Most Maori are and customs of others. It is achieved by learning about the history of colonisation happy with the and its effects in Aotearoa. status quo. Isn’t it just Practising cultural safety is about trying Q43 Even when a few radicals stirring up trouble? to relate to someone in a way that makes adical is a label which tends to be them feel most comfortable, which means the 2004 pinned on anybody who challenges taking into account their cultural values and Foreshore and R customs. The concept was developed by the status quo. Maori rights activists have Seabed Hikoi useful insights into what happened in the nurses trying to improve health outcomes to parliament past, what is happening now, and how our for Maori by encouraging them to use society can operate so that it acknowledges health services more often. It was found showed the the Treaty. that many Maori felt uncomfortable in unity of more monocultural Pakeha clinical settings where than 30,000 We tend to expect all Maori to be saying there was no understanding of Maori ways the same things, and criticise them when or their beliefs about health and illness, people, Maori they express different views, forgetting that death and dying, bodily modesty, gender and Tauiwi, the Tauiwi society is itself divided into a wide roles, etc. government still range of groups, views and beliefs. Cultural safety in nursing doesn’t just mean chose to Divisions among Maori are sometimes better health for Maori, it now implies ignore it. created by the policies of monocultural training for better nursing care for all, as institutions, for example the way the Treaty the need for greater awareness of other settlements are being run. This gives some cultures grows. It also tries to raise aware- Tauiwi an excuse not to try to under- ness among caregivers that people may find stand the complexities of different Maori themselves suffering the effects of poverty viewpoints, and sometimes is used by the through no fault of their own, and encour- government as a reason not to settle claims. ages carers to suspend unhelpful personal But even when the 2004 Foreshore and judgements. Seabed Hikoi to parliament showed the unity of more than 30,000 people, Maori Other terms used in this context are cul- and Tauiwi, the government still chose to tural competence and cultural congruence. ignore it. What are “the There continues to be a lack of agreement on the status of the Treaty among non- principles” of the Maori political and judicial leaders, which Q Treaty of Waitangi? needs to be resolved if relationships be- 45 ifferent sets of principles of the tween Maori and the Crown are to improve. DTreaty - mostly originating in Pakeha- For example, even the 2003 statement by based institutions - have been developed, Chief Justice Dame Sian Elias that “sover- four of which are set out below. eignty obtained by the British Crown was

TREATY OF WAITANGI QUESTIONS AND ANSWERS 33 They are an attempt by non-Maori to try to This resulted in Maori being prevented reconcile or ameliorate the contradictions from having legal recognition of their inter- in the English and Maori language texts. ests and rights in those areas. However, Maori have consistently said that The immediate impetus was the sequence Te Tiriti o Waitangi speaks for itself, and of events which began with legal action that there is no need to create principles. taken during the 1990s by the eight iwi of the Marlborough Sounds. They were responding to the Marlborough District Council’s refusal to approve any of their applications for marine farming, even though similar applications by non-Maori applicants were approved. From 1997, their case wound through the courts. Then in June 2003, the Court of Appeal ruled that the nature and extent of Maori customary rights and title in foreshore and seabed areas could be considered by the Maori Land Court as they had never been legally extinguished. This was the first step towards correcting a longstanding historical injustice. Pakeha banner  The Waitangi Tribunal (1975): Partner- The government responded to the Court ‘Hands across ship; Tribal Rangatiratanga; Active protection; of Appeal ruling by announcing they would the breach’ on Mutual benefit; Consultation. the second Hikoi override the legal process and introduce Takutaimoana  Court of Appeal (1987): Honour; Good legislation to vest ownership of the fore- protesting faith; Reasonable actions; Partnership. shore and seabed in the people of New government actions Zealand. on the foreshore  Labour government (1988): Kawana- and seabed, tanga; Rangatiratanga; Equality; Co-operation; They alleged this was needed to ensure Auckland, October Redress. open access to and use of the foreshore 2004. Photo: and seabed for all New Zealanders. Charles Rolo.  Royal Commission on Social Policy (1988): Partnership; Participation; Protection. There was widespread opposition to the government’s foreshore and seabed propos- For further information, see He Tirohanga als from Maori, and from many non-Maori. o Kawa ki te Tiriti o Waitangi. A guide to the Principles of the Treaty of Waitangi as expressed It was obvious from the first that what the by the Courts and the Waitangi Tribunal. Te government was intending to do would Puni Kokiri 2001 involve multiple breaches of the Treaty of Waitangi, the NZ Bill of Rights Act, the What was the fore Human Rights Act, and international hu- shore and seabed man rights instruments. legislation about? In January 2004, the Waitangi Tribunal held 46Q Urgent Hearings into the Crown’s Fore- he origins of the foreshore and seabed shore and Seabed Policy (WAI 1071), and Tlegislation date back to the nineteenth in March 2004 released their report on the century, when the Crown suspended the policy framework. jurisdiction of the Native Land Court to investigate customary rights to the foreshore The Tribunal stated that the policy and seabed. breached the Treaty of Waitangi in “funda-

34 TREATY OF WAITANGI QUESTIONS AND ANSWERS mental and serious” ways that give rise to Isn’t it best to have “serious prejudice” to Maori. the foreshore and Their primary and strong recommenda- seabed in public tion was that the government should “go 47Q ownership? It was obvious back to the drawing board and engage in proper negotiations [with Maori] about the he Foreshore and Seabed Act did not from the first way forward.” WAI 1071 is available at www. Tput the foreshore and seabed in public that what the waitangi-tribunal.govt.nz/reports/generic ownership. The idea that it did was just one government of many misrepresentations that govern- Ignoring this, as well as the widespread ment and other politicians made around was intending to protest against the policy, the government the issues. do [about the introduced the Foreshore and Seabed Bill and related legislation in April 2004. In fact, ownership of foreshore and seabed foreshore and areas not already held in private ownership, seabed] would It had its first reading on 6 May - the was vested in the Crown. day after the foreshore and seabed hikoi involve multiple of more than 30,000 people arrived at Despite the legislation, a government could breaches of the parliament. sell any foreshore or seabed area by an Act Treaty, the NZ of parliament if it chose to - that would be The Attorney General’s analysis of whether easy for a majority government to do, and Bill of Rights the legislation was consistent with the NZ provides little guarantee of protection for Act, the Human Bill of Rights Act said that the Bill likely the future. breached the Act in relation to the right to Rights Act, and be free from discrimination. Even before the legislation was enacted, it international later emerged that mining corporations had Regardless, the government pushed on with human rights begun applying for prospecting permits to the legislative process. From August to Oc- agreements. exploit mineral resources in foreshore and tober, the Fisheries and Other Sea-related seabed areas. Legislation Select Committee considered the legislation - almost 4,000 submissions Within weeks of the Act coming into were received; almost all opposed to it. effect, prospecting permits were issued; initially for iron-sand prospecting in a During the second and third readings of 1270km2 area of the west coast of the the legislation, done under urgency in just North Island, and later for gold and other two days, the government introduced 67 minerals in an area of almost 10,000km2 pages of amendments - none of which off the west coast of the South Island. reduced its confiscatory provisions. A foreshore and In contrast, from the time the government The Foreshore and Seabed Bill and related seabed action first announced its response to the Court legislation was passed on 18 November by arc, Waitangi, of Appeal ruling, hapu and iwi representa- 2004. Photo: Time 2004, and came into effect on 17 January tives consistently said that covenants of magazine. 2005.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 35 access and non-saleability, consistent with The Committee urged the government: tikanga, could be negotiated in their areas. “in a spirit of goodwill and in accord- Such alternatives, which would have guar- ance with the ideals of the Treaty of anteed both public access and local own- Waitangi, to resume a dialogue with the The Committee ership of the foreshore and seabed, were Maori community with regard to the never considered by the government. found the legislation in order to seek ways of less- The government’s response to the Court government had ening its discriminatory effects, includ- of Appeal ruling, and the passage of the failed to meet its ing where necessary through legislative amendment.” legislation, has been described as an abuse obligations to of the democratic process. The CERD decision is available at www.converge. prevent racial org.nz/pma/fs110305.htm Beyond that, it highlights the wider prob- discrimination lems with current constitutional arrange- Instead, the Prime Minister and other gov- under the ments, and the lack of protection for ernment politicians misrepresented CERD’s human rights from Acts of parliament - not Convention. decision and made dismissive remarks only for Maori, although hapu and iwi are about the Committee as well as those who more vulnerable as minority populations, had asked it to act on their behalf. but for everyone. At the invitation of the government, the Special Rapporteur on the Situation of Hu- What have United man Rights and Fundamental Freedoms of Nations human rights Indigenous Peoples, Rodolfo Stavenhagen, bodies said about the made an official visit here in November 48Q 2005. foreshore and seabed legislation? n July 2004, Te Runanga o Ngai Tahu, Special Rapporteurs are independent hu- Ithe Treaty Tribes Coalition and the man rights experts, appointed by the high- Taranaki Maori Trust Board asked the UN est UN human rights body, with a mandate Committee on the Elimination of Racial to investigate human rights violations in Discrimination (CERD) to use its Early their particular field of expertise. Warning Procedure with respect to the im- The Special Rapporteur’s visit aimed to pending foreshore and seabed legislation. investigate, through discussions with the The procedure is used when there is danger relevant parties, the human rights situation of imminent, serious breaches of the In- of Maori in a range of areas. ternational Convention on the Elimination These included political representation; of All Forms of Racial Discrimination, to land rights, claims and settlements; the which New Zealand is a party. administration of justice; language, culture CERD comprises 18 independent experts, and education; reduction of social and eco- appointed for their knowledge of interna- nomic inequalities; and the human rights tional law and human rights, who are nomi- implications of the Foreshore and Seabed nated and elected by UN member states. Act. On 11 March 2005, CERD released its During his visit, the Rapporteur met with decision on the Foreshore and Seabed Act government ministers and senior officials 2004. The Committee found the govern- of government departments, hapu and ment had failed to meet its obligations to iwi representatives, members of the Wait- prevent racial discrimination under the angi Tribunal and Maori Land Court, the Convention by passing the legislation, and Human Rights Commission, NGOs, and by failing to provide a guaranteed right of academics. redress to Maori.

36 TREATY OF WAITANGI QUESTIONS AND ANSWERS In April 2006 the Special Rapporteur’s Report said that more had to be done to report, Mission to New Zealand, was released. ensure Maori political representation. Among the recommendations was: It pointed out that Maori had continually “The Foreshore and Seabed Act should sought decision-making capacity over their The government be repealed or amended by parliament social and political organisation, lands and and the Crown should engage in treaty responded to resources, wider way of life, and their rela- settlement negotiation with Maori that the recommen- tionships with the Crown. would recognise the inherent rights of dations by The Special Rapporteur recommended that Maori in the foreshore and seabed and publicly deriding change should be made through constitu- establish regulatory mechanisms allow- tional reform to regulate the relationship the Special ing for the free and full access by the between the government and Maori people general public to the country’s beaches Rapporteur on the basis of the Treaty and the interna- and coastal area without discrimination and the UN tionally recognised right of all peoples to of any kind.” (More information about the Commission on self-determination. Report is in Q49 below.) Human Rights, The Report noted that land returned The government responded to the recom- and stating they through the settlements process is only a mendations in a similar way as they had to small percentage of the land taken, and would ignore the CERD decision on the foreshore and cash payments are usually less than two per seabed legislation, by publicly deriding the the recommen- cent of the value of that land. Special Rapporteur and the UN Commis- dations. sion on Human Rights, and stating they It recommended that the Crown should would ignore the recommendations. engage in negotiations with Maori to agree on a fairer settlement policy and process, In July and August 2007, CERD considered and that the Waitangi Tribunal should have the government’s Consolidated Periodic legally binding and enforceable powers to Report under the International Convention adjudicate Treaty matters. on the Elimination of All Forms of Racial Discrimination, in conjunction with parallel The Special Rapporteur noted that dispari- NGO reports. ties continue to exist between Maori and non-Maori in employment, income, health, In their Concluding Observations, CERD housing, education and the criminal justice repeated its earlier recommendation: system. “that a renewed dialogue between the He suggested that improvements may most State party and the Maori community rapidly be achieved through “by Maori, for take place with regard to the Foreshore Maori” measures. The Special Rapporteur and Seabed Act 2004, in order to seek commented that he was asked several times ways of mitigating its discriminatory whether he agreed that Maori had received effects, including through legislative special privileges. amendment where necessary”. He said he had not been presented with any The Concluding Observations are available at evidence to that effect, but, on the con- www.converge.org.nz/pma/cerd71.htm trary, he had received plenty of evidence concerning the historical and institutional What else did the discrimination suffered by Maori. UN Special The full report is available at www.converge.org. Q49 Rapporteur on nz/pma/srnzmarch06.pdf Indigenous Peoples’ Rights say? n addition to the recommendations Ion the Foreshore and Seabed Act, the

TREATY OF WAITANGI QUESTIONS AND ANSWERS 37 Why are UN human the most specific recommendations regard- rights bodies inter- ing indigenous peoples’ rights were in the Committee on the Elimination of Racial 50Q ested in the Treaty? Discrimination (CERD) General Recom- he UN Charter is based on “respect mendation 23: Indigenous Peoples. Tfor the principle of equal rights and The General Recommendation outlines self-determination of peoples”. CERD’s expectations of how states are to This is further elaborated in the shared meet their obligations towards indigenous Article 1 of the two International human peoples so as not to breach the Interna- rights covenants which begins: tional Convention. “All peoples have the right of self-de- In the 2007 Concluding Observations on termination. By virtue of that right they New Zealand, the status of the Treaty was freely determine their political status and a particular cause for concern for CERD, as freely pursue their economic, social and were recent developments which “diminish cultural development.” the importance and relevance of the Treaty and create a context unfavourable to the The right of self-determination in inter- rights of Maori”. national law can be seen as reinforcing the Treaty. There is an obvious link between Concern was also expressed about the that right and the self-determination which government categorising historical Treaty was exercised by Maori prior to the arrival settlements as ‘special measures’. The of non-Maori was proclaimed internation- Some states Committee pointed out the distinction ally in the 1835 Declaration of Independ- - such as New which must be made between special and ence, and which the Treaty guaranteed Zealand - temporary measures for the advancement of ethnic groups on the one hand and the would continue. continually tried permanent rights of indigenous peoples on In the years since the establishment of to weaken key the other. the UN, indigenous peoples’ rights have provisions during received increasing attention within the in- What is the UN Dec- ternational human rights treaty monitoring negotiation on bodies, elsewhere in the UN system, and in the text of the laration on the Rights regional human rights bodies such as the UN Declaration of Indigenous Peoples? Inter-American Court of Human Rights. Q51 on the Rights he Declaration is the first substantive This has come about in part because of Indigenous Thuman rights instrument to elaborate indigenous peoples, historically and in the indigenous peoples’ rights, collective and Peoples. present day, are particularly vulnerable to individual. It sets out minimum standards prejudice, discrimination, and gross human for the survival, dignity and well-being of rights violations including genocide, as well the indigenous peoples of the world. as the taking of their lands and resources The Declaration has 24 preambular para- by commercial enterprises, colonists and graphs and 46 articles which cover a range states, which puts their very survival at risk. of human rights and fundamental freedoms Indigenous rights also follow from the elab- related to indigenous peoples. oration of specific human rights protec- These include the right of self-determi- tions for particular groups such as women nation, ownership and use of traditional (Convention for the Elimination of Dis- lands and natural resources, the honour- crimination against Women), and children ing of treaties and agreements concluded (Convention on the Rights of the Child). with indigenous peoples, protection against Until the recent adoption of the UN Decla- genocide, and rights: ration on the Rights of Indigenous Peoples,  to preserve and develop their cultural

38 TREATY OF WAITANGI QUESTIONS AND ANSWERS characteristics and distinct identities overwhelming majority.  to maintain and strengthen their own The Declaration text and related UN documents institutions, cultures and traditions are available at www.converge.org.nz/pma/decrips.  to participate in the political, economic htm and social life of the society in which they live, and to pursue their own visions of What does Treaty- economic, social and cultural development ‘Anniversary Day related to religion, language and education. marks past and based constitutional present theft from change mean? The Declaration explicitly encourages Maori’ protest by Q52 “harmonious and cooperative relations” Takutai Moana any NGOs have changed the way between states and indigenous peoples, Poneke Collective, they make decisions to try to respect Chaffers Marina, M and refers to procedures for resolving Wellington Maori approaches. Typically, this means disputes between indigenous peoples and Anniversary Day, that tangata Tiriti and tangata whenua governments. January 2005. Photo: groups, or caucuses, within one organisa- Peace Movement tion may have one vote each, regardless of This Declaration had a lengthy and arduous Aotearoa. the numbers in each group. journey through the UN system, beginning in 1985 when representatives of indigenous peoples’ organisations and states began drafting its text. It was first adopted by the UN Sub-Com- mission on the Prevention of Discrimina- tion and Protection of Minorities in 1994. Then a process of negotiation began on the text, between representatives of indigenous peoples’ organisations (including Maori) and states, with some states - such as New Zealand - continually trying to weaken its key provisions. A weaker version was adopted by the Human Rights Council in June 2006; and finally, in September 2007, the Declaration Each caucus looks after its own business was adopted by the UN General Assembly and together they both negotiate which by a recorded vote of 143 in favour, 11 issues need to be decided together - the abstentions, and 4 - Australia, Canada, New common ground - and seek consensus for Zealand and the United States - against. any changes. Although it is a non-binding text, the There are now many examples of groups Declaration strengthens the international benefiting from changing their constitu- human rights system as a whole by specifi- tions, working in tandem towards common cally including indigenous peoples among goals. those whose rights must be respected and Another term for this is “co-govern- protected. ance” or “co-management”, where one While UN member states do not have a cultural group can’t make decisions on legal obligation as such to adhere to the shared resources without the other group’s provisions of the Declaration, at the very agreement. least there is a moral obligation to respect For more than a century, Maori leaders and promote all human rights instruments have expressed their desire and willingness - especially one that was passed by such an to negotiate for such changes to be made in

TREATY OF WAITANGI QUESTIONS AND ANSWERS 39 the way the country as a whole is governed. In modern times Tauiwi have provided One such example was the national hui of education on the issues, attempted Treaty- iwi representatives at the Hirangi Marae in based ways of living and working, and Turangi in 1996, which called for constitu- peacefully protested injustice. There are tional change to reflect the promise of the These actions include participating in overseas Treaty. Several models of how this could be marches, creating petitions, submissions on examples achieved have been developed. legislation, artworks, supporting occupa- of countries One idea involves the creation of a Treaty- tions, writing letters, books, songs, poems and newsletters, working for change in po- successfully based or Maori Upper House which would audit legislation to ensure there were no litical parties and NGOs, changing constitu- protecting further breaches of the Treaty. New Zea- tions, fundraising for resources and publi- the rights of a land is one of very few countries in the cations, providing information on Waitangi particular culture world that does not have two levels of gov- Day, creating street theatre, banners and posters, educating and challenging ourselves within another ernment approval before laws are enacted. and each other, researching statistics, work- majority culture, Another idea is a Maori Assembly in ing for Maori organisations, participating in for example in tandem with the current parliament, both Treaty workers’ gatherings, educating new working toward consensus decisions on Switzerland, migrants and refugees, holding public meet- common issues. ings, debates, historic tours and other local the Netherlands There are overseas examples of countries events to commemorate the signing of the and Belgium. successfully protecting the rights of a Treaty in their area, and supporting Maori particular culture within another major- initiatives. ity culture, for example in Switzerland, the A large Tauiwi Treaty conference was Netherlands and Belgium. organised in Tamaki Makaurau (Auckland) There are many Tauiwi who support in 2000, and the papers presented there Treaty-based constitutional change at published (see Further Reading). the national level, but successive govern- The educational processes that have ments have refused to even consider the evolved over 30 years in Treaty workshops possibility. have attracted international interest, with In 2005 a parliamentary Select Committee educators in Canada and Australia adopt- researched some options, but their recom- ing elements for their own decolonisation mendations appear to have been shelved. work. The Maori Party, and others, have called for an independent Treaty Commissioner to adjudicate between the Treaty parties and stimulate public debate on constitutional change.

What have Tauiwi done to change the Q53 situation? hroughout our history, from the Tearliest Pakeha (“Pakeha Maori”) who fought against the British constabulary, ordinary Tauiwi have supported Maori rights and become whistle-blowers in the face of government breaches of the Treaty.

40 TREATY OF WAITANGI QUESTIONS AND ANSWERS what can I do? 1 Change your organisations and cultural awareness come alive in their classrooms. Which culture is the basis of operation in ? the organisations you are part of? 5 Study your local history  Who makes the decisions, and for Do you know if there are any claims to whom? the Waitangi Tribunal in your area? What  Who benefits? are they about? Can you assist in any way? What is the social history of your area, not  Who holds the power? just in the last 200 years, but the last 2,000?  Who controls the resources? 6 Identify your culture ? To change things it helps to analyse and ? answer these questions. Most New Zealand Until recently many Pakeha could not organisations are monocultural and there- see that we have a culture because in our fore work to the advantage of Pakeha. monocultural past it had never been under threat or under question. It was seen as 2 Get the facts right “being normal”, and other racial or cultural There is a lot of misinformation about groups were “different”. ? our history and a lot of energy is put in Pakeha don’t have to fight to use the by some to keep it that way. Challenge the English language. Because Pakeha cul- information that you read and hear. There ture is safe and strong, it is easy to take it are many books available now which give for granted. Can a fish describe the sea it ? a truer perspective on past events. See Ap- swims in? pendix four for a reading list. In fact, Pakeha have a specific culture ?? 3 Talk with other people, deal which has a wide range of ways of express- with the backlash ing itself, from the way friends are made, how children are raised, what is eaten, how Treaty workers find that most people are thoughts and beliefs are expressed. still uninformed about the Treaty of Wait- angi. Negative opinions and assumptions Learning to understand and value one’s ? are formed in an environment of ignorance own cultural base is an important step to- and misinformation. wards being able to respect and value other people’s. Talking about the Treaty within a positive framework is part of the steps to change. Find out your family’s genealogy, why and when your ancestors came to New Zea- ? See the list of contacts on page 6 for people who can provide assistance or resources land, what their hopes and fears may have to get you started. been and what their values were. What values and beliefs have you rejected, 4 Support Treaty action in and which ones do you want to pass on to ? schools the next generation? Many schools now have the Treaty in their ? charter. If you are a parent of school‑age ? children, become involved in supporting this at their school. Teachers need encour- agement and support to make the Treaty TREATY OF WAITANGI QUESTIONS?? AND ANSWERS 41 10 Support steps to justice Find out if your MP and local body councillor acknowledge the primacy of the Maori text, and what they will do locally to implement the UN Declaration on the Rights of Indigenous Peoples. Would they support an independent Treaty Commissioner to act as intermediary between the Treaty parties, and to lead public debate on constitutional change? Convince them!

The Awaroa 7 Challenge activities which Support Group are ignoring the Treaty was established in 1987 to support Challenge parliamentary legislation and Nganeko Minhinnick local body/city council planning which and Ngati Te Ata ignores Treaty rights and guarantees. over the mining of ironsands at Maioro Network with others to ensure broad‑based on the north head action and submission writing against of the Waikato. Treaty violations. A collection of t-shirts 8 Challenge racism produced for tauiwi Decide how strong you feel in yourself and Treaty campaigns, about the situation before you challenge a photographed at a national gathering of racist statement - you don’t have to respond Treaty workers in to every situation. Hamilton in 2006. Sometimes all you need to do in a discussion is draw attention to the racist comment. You don’t need to make a big deal about it. You can also get up and walk out – you can decide to challenge the person at a later time. Don’t avoid using the term racism – but use it about situations or institutions, not people.

9 Make “I” statements You then retain your hold on the argument. People can’t take your feelings away from you.

42 TREATY OF WAITANGI QUESTIONS AND ANSWERS appendices HE WAKAPUTANGA O TE RANGATIRATANGA O NU TIRENI THE DECLARATION OF INDEPENDENCE OF NEW ZEALAND ? 128 OCTOBER 1835  Is an international declaration.  Recognises the sovereignty of the Independent Tribes of New Zealand.  Was signed on 28 October, 1835.  Was the forerunner of the Treaty of Waitangi.  Has a flag to symbolise tribal rights to trade as independent nations.  Has been ignored by NZ governments and the education system.  Was witnessed by the Crown Resident. ? Ko matou, ko nga Tino Rangatira o nga iwi o We the hereditary chiefs and heads of the tribes ? 1Nu Tireni i raro mai o Hauraki kua oti nei te 1of the Northern parts of New Zealand, being huihui i Waitangi i Tokerau i te ra 28 o Oketopa assembled at Waitangi in the Bay of Islands, on this 1835, ka wakaputa i te Rangatiratanga o to matou 28th day of October, 1835, declare the independ- wenua, a, ka meatia ka wakaputaia e matou he ence of our country which is hereby constituted Wenua Rangatira, kia huaina ko te Wakaminenga and declared to be an Independent State under the o nga Hapu o Nu Tireni. designation of the United Tribes of New Zealand. Ko te Kingitanga ko te mana i te wenua o te All sovereign power and authority within the 2wakaminenga o Nu Tireni ka meatia nei kei 2territories of the united tribes of New Zealand ? nga Tino Rangatira anake i to matou huihuinga. is hereby declared to reside entirely and exclusively A, ka mea hoki e kore e tukua e matou te wakarite in the hereditary chiefs and heads of tribes in their ture ki te tahi hunga ke atu, me te tahi Kawanatan- collective capacity, who also declare that they will ga hoki kia meatia i te wenua o te wakaminenga not permit any legislative authority separate from ? o Nu Tireni. Ko nga tangata anake e meatia nei e themselves in their collective capacity, nor any matou e wakarite ana ki te ritenga o o matou ture e function of government to be exercised within the meatia nei e matou i to matou huihuinga. said territories, unless by persons appointed by ? them and acting under the authority of laws regu- ? Ko matou ko nga Tino Rangatira ka mea nei larly enacted by them in Congress assembled. 3kia huihui ki te runanga ki Waitangi a te nga- huru i tenei tau i tenei tau ki te wakarite ture, kia The hereditary chiefs and heads of tribes tika ai te wakawakanga, kia mau ki te rongo, kia 3agree to meet in Congress at Waitangi in the mutu te he, kia tika te hokohoko. A, ka mea hoki autumn of each year for the purpose of framing ki nga tauiwi o runga, kia wakarerea te wawai, kia laws for the dispensation of justice, the preserva- ? mahara ai ki te wakaoranga o to matou wenua, a, tion of peace and good order, and the regulation kia uru ratou ki te wakaminenga o Nu Tireni. of trade. They also cordially invite the southern tribes to lay aside their private animosities and Ka mea matou kia tuhituhia he pukapuka ki te to consult the safety and welfare of our com- ritenga o tenei o to matou wakaputanga nei ki 4 mon country by joining the Confederation of the te Kingi o Ingarani hei kawe atu i to matou aroha United Tribes. nana hoki i wakaae ki te Kara mo matou. A, no te ? mea ka atawai matou, ka tiaki i nga pakeha e noho They also agree to send a copy of this Dec- nei i uta, e rere mai ana ki te hokohoko, koia ka 4laration to His Majesty the King of England mea ai matou ki te Kingi kia waiho hei matua ki a to thank him for his acknowledgement of their matou i to matou Tamarikitanga kei wakakahoretia flag. In return for the friendship and protection to matou Rangatiratanga. that they have shown and are prepared to show to such of his subjects as have settled in their country ? Kua wakaaetia katoatia e matou i tenei ra, i te or resorted to its shores for the purposes of trade, 28 Oketopa 1835, ki te aroaro o te Reireneti o te they entreat that he will continue to be the parent ? Kingi o Ingarani. of their infant State, to protect it from all attempts ? upon its independence. Text supplied by Te Whakakotahitanga o Nga Iwi o Agreed to in its entirety by us on this 28th day of Aotearoa/the Maori Congress in 1994 to the Federation of October, 1835, in the presence of His Britannic WEAs in alliance with Network Waitangi Otautahi. Majesty’s Resident. TREATY OF WAITANGI QUESTIONS?? AND ANSWERS 43 TE TIRITI O WAITANGI/ 2THE TREATY OF WAITANGI He Kupu Whakataki, Ko Te Tuatoru, Ko Wikitoria, te Kuini o Ingarani, i tana mahara Na, ko matou ko nga Rangatira e te Wakaminenga atawai ki nga Rangatira me nga Hapu o Nu Tirani o nga hapu o Nu Tirani ka huihui nei ki Waitangi i tana hiahia hoki kia tohungia ki a ratou o ratou ko matou hoki ko nga Rangatira o Nu Tirani ka rangatiratanga, me to ratou wenua, a kia mau kite nei i te ritenga o enei kupu ka tangohia ka tonu hoki te Rongo ki a ratou me te Atanoho hoki wakaaetia katoatia e matou koia ka tohungia ai o kua wakaaro ia he mea tika kia tukua mai tetahi matou ingoa o matou tohu. Rangatira hei kai wakarite ki nga Tangata maori o Hei wakaritenga mai hoki tenei mo te wakaa- Nu Tirani - kia wakaaetia e nga Rangatira maori etanga ki te Kawanatanga o te Kuini. Ka tiakina e te Kawanatanga o te Kuini ki nga wahikatoa o te Kuini o Ingarani nga tangata maori katoa o Nu te wenua nei me nga Motu - na te mea hoki he Tirani ka tukua ki a ratou nga tikanga katoa rite tokomaha ke nga tangata o tona Iwi Kua noho ki tahi ki ana mea ki nga tangata o Ingarani. tenei wenua, a e haere mai nei. Ka meatia tenei ki Waitangi i te ono o nga ra o Na ko te Kuini e hiahia ana kia wakaritea te Pepueri i te tau kotahi mano, e waru rau e wa te Kawanatanga kia kaua ai nga kino e puta mai ki kau o to tatou Ariki. te tangata Maori ki te Pakeha e noho ture kore ana. E mea ana te Kawana ko nga whakapono katoa o Na, kua pai te Kuini kia tukua a hau a Wiremu Ingarai, o nga Weteriana, o Roma, me te ritenga Hopihona he Kapitana i te Roiara Nawi hei Maori hoki e tiakina ngatahitia e ia. Kawana mo nga wahi katoa o Nu Tirani e tukua aianei, amua atu ki te Kuini e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei.

Ko Te Tuatahi, Ko nga Rangatira o te Wakaminenga me nga Ran- gatira katoa hoki, ki hai i uru ki taua Wakaminen- ga, ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu - te Kawanatanga katoa o o ratou wenua.

Ko Te Tuarua, Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira, ki nga hapu, ki nga tangata katoa o Nu Tirani, te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga rangatira o te Wakaminenga me nga Rangatira katoa atu, ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua, ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

44 TREATY OF WAITANGI QUESTIONS AND ANSWERS TRANSLATION INTO ENGLISH 2A Signed at Waitangi, February 1840, and afterwards by over 500 Rangatira. Preamble This is the third Victoria, the Queen of England, in her gracious This is the arrangement for the consent to the thoughtfulness to the Rangatira and Hapu of New Governorship of the Queen. The Queen will Zealand, and in her desire to preserve to them their protect all the Maori people of New Zealand, authority and their land, so that peace and quiet- and give them all the same rights as those of her ness may be kept with them, has thought it right to subjects, the people of England. send a chief (an officer) as one who will negotiate with the Maori people of New Zealand. Let the Maori Rangatira accept the Governorship (Kawa- Now we, the Rangatira of the Confederation of the natanga) of the Queen over all parts of this country Hapu of New Zealand, here assembled at Wait- and the islands. This is because a great number of angi, and we, the Rangatira of New Zealand, see the people of her tribe have settled in this country, the meaning of these words and accept them, and and more will come. we agree to all of them. Here we put our names and our marks. Now, the Queen desires to arrange the Governor- ship lest evils should come to the Maori people This was done at Waitangi on the 6th day of Feb- and to the Pakeha who are living here without the ruary in the year of our Lord 1840. law. Now, the Queen has been pleased to send me, At the meeting before any of the Rangatira William Hobson, a Captain in the Royal Navy to had signed the Treaty, Hobson agreed under be Governor for all places of New Zealand which questioning from the Catholic Bishop Pompal- are now given up or which shall be given up to lier to read the following statement, which was the Queen. And she says to the Rangatira of the a record of discussion on religious freedom Confederation of the Hapu of New Zealand and and customary law, which Bishop Pompallier the other Rangatira, these are the laws spoken of. had had with the Anglican Missionary William Colenso. This is sometimes referred to as the This is the first fourth Article or Protocol. The Rangatira of the Confederation, and all those The Governor says that the several faiths of Eng- Rangatira who have not joined the Confederation land, of the Wesleyans, of Rome, and also Maori grant to the Queen of England forever all the Gov- custom and religion shall alike be protected by ernorship (Kawanatanga) of their lands. him.

This is the second The Queen of England acknowledges and agrees to the absolute authority (Tino Rangatiratanga) of the Rangatira, Hapu and all the people of New Zealand over their lands, their villages and everything that is held precious. But the Rangatira give to the Queen the right to purchase those pieces of land that the owner is willing to sell, subject to the arranging of payment, which will be agreed to by them and the purchaser who will be appointed by the Queen for the purpose of buying for her.

Text from the Network Waitangi Otautahi Treaty poster, February 2007.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 45 MEANING IN AN ENGLISH VERSION 2B PLAIN ENGLISH 3WRITTEN IN MARCH 1840 Introduction Preamble The Queen wants Maori people to keep their lands Her Majesty, Victoria, Queen of the United King- and independence and she wants all people to live dom of Great Britain and Ireland, regarding with together in peace. This agreement is to make a her Royal Favour the Native Chiefs and Tribes government for her people who are now in New of New Zealand, and anxious to protect their just Zealand and those who will come in the future. Rights and Property, and to secure to them the enjoyment of Peace and Good Order, has deemed First it necessary, in consequence of the great number of Her Majesty’s Subjects who have already set- Maori give to the Queen of England the right to tled in New Zealand, and the rapid Extension of have a governor in New Zealand. emigration both from Europe and Australia which is still in progress, to constitute and appoint a Second functionary properly authorised to treat with the The Queen agrees that Maori keep their independ- Aborigines of New Zealand for the recognition of ence and keep control over their lands and every- Her Majesty’s Sovereign authority over the whole thing that is important to them. They give to the or any part of these islands. Her Majesty therefore Queen the right to buy land if they want to sell it. being desirous to establish a settled form of Civil Government with a view to avert the evil conse- Third quences which must result from the absence of the necessary Laws and Institutions alike to the native The Queen gives Maori people the same rights as population and to Her subjects has been graciously British people. pleased to empower and to authorise me William Hobson, a Captain in Her Majesty’s Royal Navy, Fourth (spoken promise) Consul and Lieutenant-Governor of such parts of New Zealand as may be or hereafter shall be The Governor promises to protect Maori customs ceded to Her Majesty, to invite the confederated and the different religions in New Zealand. and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the first Text from Tangata Tiriti - Treaty People: An inter- The chiefs of the Confederation of the United active workbook on the Treaty of Waitangi, 2006, Tribes of New Zealand and the separate and inde- Treaty Education for Migrants Group, AWEA, pendent Chiefs who have not become members of p43. the Confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Ter- ritories as the sole Sovereigns thereof.

46 TREATY OF WAITANGI QUESTIONS AND ANSWERS HISTORICAL EVENTS AND LAWS WHICH 4BREACH THE TREATY OF Article the second WAITANGI Her Majesty the Queen of England confirms and 1840 About 200,000 Maori collectively owned guarantees to the Chiefs and Tribes of New Zea- 66,400,000 acres of land. Some 2,000 permanent land and to the respective families and individu- British and other settlers lived in New Zealand. als thereof, the full exclusive and undisturbed possession of their Lands and Estates, Forest, Land Claims Ordinance 1841 Fisheries and other properties which they may All ‘unappropriated’ or ‘waste land’, other than collectively or individually possess, so long as it is that required for the “rightful and necessary occu- their wish and desire to maintain the same in their pation of the aboriginal inhabitants” was deemed possession; but the Chiefs of the United Tribes Crown land. and the Individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as Native Trust Ordi- the propietors thereof may be disposed to alienate, nance 1844 at such prices as may be agreed upon between the respective Proprietors and persons appointed by Made provision for Maori Her Majesty to treat with them in that behalf. education as part of the ‘civilisation’ of Maori ‑ “best attained by assimi Article the third lating as speedily as pos- In consideration thereof, Her Majesty the Queen sible the habits and usages of England extends to the Natives of New Zealand of the Native to those of Her royal protection and imparts to them all the the European population”. Rights and Privileges of British Subjects. Proclamation of Now therefore, We the Chiefs of the Confedera- 1844 Cloth banner tion of the United Tribes of New Zealand being displayed in the assembled in congress at Victoria, in Waitangi and FitzRoy abandoned the English version of the public gallery of We the Separate and Independent Chiefs of New Treaty’s exclusive right of pre-emption, ie, the parliament during Zealand claiming authority over the Tribes and sole right of the Governor to buy land, due to a the final reading of Territories which are specified after our respec- lack of funds to buy enough land to satisfy settler the foreshore and tive names, having been made fully to understand demand. seabed legislation, the Provisions of the foregoing Treaty, accept and The protective aspect of pre-emption was thus while the Attorney enter into the same in the full spirit and meaning abandoned. The proclamation included protection General was asked thereof in witness of which, we have attached our of wahi tapu, and provision for a 10% endowment “Why don’t you signatures or marks at the places and the dates for Maori from every “sale”, but Grey did not honour the Treaty?” respectively specified. implement these aspects. The banner too was confiscated. Photo: 1844 Governor Grey abolished the Protectorate Peace Movement Done at Waitangi, this Sixth day of February in the Department, which had the responsibility for pro- Aotearoa. year of Our Lord, one thousand eight hundred and tecting Maori rights, and gave the NZ Company forty. the exclusive right of pre-emption in some areas for a short period.

[There was no record on the English version of the 1845 William Spain completed his work as Com- agreement on the protection of religious freedom missioner of Land Claims, investigating land and customary law, which is sometimes referred to purchases made before 1840. However, many of as the Fourth Article or Protocol (see Maori text).] his recommendations were never acted upon. For example, the site of Wellington was proved an invalid purchase, but the area was not returned to Maori, nor compensation paid.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 47 Native Land Purchase Ordinance Suppression of Rebellion Act 1863 1846 Based on the Irish Act of 1799, which put down Restored the Crown’s sole right of pre‑emption. the Irish rebellion against British rule. Suspended Penalties were imposed on any other person buy- the right to habeas corpus (trial before sentenc- ing or leasing land. Maori again had to sell land to ing) for those found to be in rebellion against the the Crown instead of opting for long‑term leases Crown. Military courts were established, and land where they retained title. confiscation and death were included as penalties for rebellion. New Zealand Government Act 1846 New Zealand Land Settlements Act Led to Royal Instructions to Governor Grey to 1863 chart all lands in the colony. Land not claimed or registered would automatically be vested in the This empowered confiscation of Maori land in any Crown. No Maori claim was to be admitted unless district where a “considerable number” of Maori the claimants actually occupied the land, but this were believed to be in rebellion. The Act confis- was in fact not implemented. cated three million acres.

1852 Maori land 34 million acres. Grey buys 32 Native Reserves Act 1864 million acres for 50,000 pounds, including most of All remaining native reserves were placed under the South Island, between 1845 and 1853. Pakeha control, and could be leased out at minimal New Zealand Constitution Act 1852 rentals. Established a two-tier system of government with Native Land Act 1865 a Legislative Council appointed by the Crown Its objectives were “to encourage the extinction and a House of Representatives of 37 members. It of (native) proprietary customs”. The right was divided the country into six provinces, and created given to any person to apply to the Land Court for settler self-government, disregarding the Treaty. determination of title to land. Courts could only Provincial councils were responsible for schools, decide on the basis of evidence before it. hospitals and charitable aid. It gave the right to If a Maori owner did not take part in this long and vote to males who owned property. Multiply- costly process, the claimant would automatically owned land did not qualify as property, thereby get title. Maori owners who did take part would denying almost all Maori men a vote. often incur debt which resulted in forced sales. The first government was largely made up of land Survey costs were charged to the Maori owners. grabbers and speculators eager for land profits. Once a title had been issued, the land could be Section 71 made provision for Maori Districts to sold or leased to anyone. The number of owners’ be declared where “Maori laws, customs and us- names was reduced to 10, for titles of less than ages” could be maintained, but it was never used. 5,000 acres. 1860 Maori land 21.4 million acres. Rapid 1865 - 1875 Some 10 million acres were taken decline in Maori population due to disease and through the court over this period. social disruption caused by land alienation, and surge in British immigration, equalises population Oyster Fisheries Act 1866 numbers around 70,000. Prevented Maori from fishing commercially. Native Lands Act 1862 Maori commercial fishing enterprises went broke and had to sell land to meet debts. A Land Court was set up to individualise Maori collective ownership. The act was sponsored by Native Schools Act 1867 Russell, a land speculator. It also abolished the pre-emptive purchase right of the Crown, again. Provided for the setting up of schools in Maori The government was funding itself by using its villages if the hapu provided the land, half the cost monopoly on land purchases to buy land at far of the buildings and 25 per cent of the teachers’ below market rates and then selling the land to set- salary. tlers at its true value. English was the only language of instruction, and 1863 Governor Grey invades the Waikato region later (1871) this English-only policy was rigor- controlled by the Kingitanga movement, starting ously enforced through a government instruction. the second land wars of the 1860s.

48 TREATY OF WAITANGI QUESTIONS AND ANSWERS Maori Representation Act 1867 West Coast Settlement Act 1881 Set up four Maori seats to remove the threat of Any Maori in Taranaki could be arrested without a Maori out‑numbering Pakeha in some electorates warrant and jailed for two years with hard labour where individualised titles had given Maori the if they built anything or in any way hindered the vote. surveying of confiscated land. The government sent in 2,500 troops to arrest East Coast Land Titles Investigation Te Whiti, Tohu and 200 others. They were kept Act (and the East Coast Act, 1868) in prison for an indefinite period without trial. Authorised the issue of proclamations of confisca- Several laws were passed over the next two years tion. This was used to force unwilling sellers in the to validate the unlawful arrests and unlawful de- Urewera to accept offers for their land under threat tentions which had forced the people of Parihaka of confiscation. off their land. 1869 The government requested a new Maori version of the English text. ‘Kawanatanga’ in Article 1 was replaced by ‘Nga mana Katoa o te Rangatiratanga’. 1877 The Treaty is declared ‘a simple nullity’ by Chief Justice Prendergast in the Wi Parata v Bish- op of Wellington case. He says there is no legal Maori title to land, and that the Treaty of Waitangi could have no bearing on the case because treaties with ‘barbarians’ lack legal validity.

Fish Protection Act 1877 A rare early example of the Treaty being enforced in legislation. “Nothing in this Act contained shall be deemed to repeal, alter, or affect any of the provisions of the Treaty of Waitangi, or to take away, annul, or abridge any of the rights of the Marine Parade, Aboriginal natives to any fisheries secured to them Native Reserves Act 1881 Napier, during there under.” The control of Maori reserves was taken over by Hikoi Takutaimoana the Public Trustee. (foreshore and Native Land Amendment Act 1879 seabed hikoi) to Crown and Native Lands Rating Act Wellington, May Laws on trusteeship and admissible evidence were 2004. changed to allow small farmers easier access to 1882 Maori land. Maori land within five miles of a highway was made liable to rates. The Crown paid the rates to West Coast Peace Preservation Act the local body and made the debt a first charge on 1879 the land if sold. One year’s hard labour for Maori who refused to leave their land. Native Land Administration Act 1886 Provided for Maori land to be held by trustees Maori Prisoners Trial Acts 1879 with the right to sell - in contravention of rights A series of acts, aimed at crushing the non-violent of communal ownership. The government was resistance movement in Taranaki, postponed and able to buy land to sell or lease to small farmers at finally dispensed with trials for those accused of minimal rents. hindering surveying of land, and allowed detention Te Whiti was re-arrested (under the West Coast without trial. Settlement Act of 1881) without warrant, charge Non-violent resistance to oppression was central or trial, and imprisoned. to Parihaka leader Te Whiti o Rongomai’s vision, and came 40 years before Gandhi developed his Native Land Act 1887 philosophy. Allowed for further sales, including land formerly designated as reserves. Bastion Point, Auckland, was appropriated for defence purposes. 1891 Maori land 11,079,486 acres.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 49 1892 The Native Department was abolished. Public Works Act 1908 Authorised the taking of Maori land for pub- Native Land Purchase and lic works. Maori Trustee usually given some Acquisition Act 1893 compensation. This reintroduced the Crown right of pre-emption. The Crown was given new powers to declare any Native Health Act 1909 Maori land “suitable for settlement”. Examples Maori could no longer use the whangai system include the Crown paying five shillings an acre for for adopting children within extended families. A such land, when the market rate was £30. regulation prevented Maori women from breast- feeding (a misguided attempt to prevent the spread Advances to Settlers Act 1894 of disease). Low interest loans were available only to white 1911 Maori land 7,137,205 acres. settlers to buy land from the government and develop it. Maori owners were excluded from Land Laws Amendment Act 1912 access to government development finance until the 1930s. Conditions under which Crown and Maori leases could be converted into freehold were relaxed. Validation of Land This fulfilled Massey’s election promise ‑ “I want Sales Act 1894 to see the settlers of this country not tenants of the Crown or private individuals, not afraid of a Any Pakeha misdealing government agent or a private landlord, but sturdy concerning Maori land was free‑holders farming their own land.” legitimised. 1918 Maori servicemen who returned after World Maori Land Settlement War I were not eligible for the benefits of the Re- Act 1894 habilitation Scheme. Maori land was put under the 1920 Maori land 4,787,686 acres. control of Land Councils. 1923 Wiremu Tahupotiki Ratana snubbed when he 1896 Lowest recorded Maori took Treaty grievances to King George (as others population, 42,000. Pakeha such as Tawhiao previously had been) on advice of population 700,000. the settler government. October 2007. 1897 92 Maori in Taranaki were arrested for Placard and photo: Public Works Act 1928 ploughing land in protest against Public Trustee Peace Movement control of their lands. Aotearoa. The government was authorised to take land for forestry, airports, roads, land development and The Old Age Pensions Act 1898 subdivision, etc. Failure to advise Maori owners of Automatically disqualified those with shares in pending confiscation was not illegal. tribal land; few Maori qualify for pensions. 1932 Maori MPs present a petition to parliament with 30,000 signatures calling for ratification of Land Settlement Act 1904 the Treaty. Pakeha MPs leave the chamber, no Land “not required or suitable for occupation by action taken. the Maori owners” was to be compulsorily placed 1932 Maori received half the unemployment ben- under the control of Land Councils. efit. A single Maori received 7s 6d, Pakeha 15s. This was amended in 1936. Suppression of Tohunga Act 1907 1939 Maori land 4,028,903 acres. Maori popu- The practices of tohunga, experts in Maori medi- lation doubles over 50 years to 82,000, as does cine, education and spirituality, were seen as a Pakeha, to 1.5 million. threat to assimilation, especially to British medical practices, and outlawed. Maori Social and Economic Thought to be a response to the success of the Advancement Act 1945 prophet Rua Kenana in convincing his people Some attempts were made under this Labour legis- to remove their children from the debilitating lation to return some Maori land after the expiry of influence of European schools, but also aimed at leases over them. reducing the negative effect of some untrained practitioners.

50 TREATY OF WAITANGI QUESTIONS AND ANSWERS Maori Affairs Act 1953 Treaty of Waitangi Act 1975 Maori land deemed “uneconomic” could be com- Established the Waitangi Tribunal, selected by pulsorily purchased at state valuation. The Maori the Crown, to inquire into Crown breaches of the Trustee (a Pakeha) was given power to buy Maori Treaty on or after 1975. The Tribunal only has the land worth less than £50 without the owners’ power to recommend compensation or redress to consent. claimants, which the government does not have to accept. If the owners couldn’t or wouldn’t develop land to “European standards”, the trustee could insist that 1985 Decline in the use of the Maori language the land be used or developed by someone else. At leads to a claim to the Waitangi Tribunal, which the end of the lease period if the original owners rules that Treaty obligations require affirma- wanted the land back they had to pay compensa- tive action to protect and sustain the language. tion for the improvements. Legal action funded by Maori over the next 20 years results in a Privy Council ruling forcing the If they couldn’t raise the capital for the improve- government to commit funds to Maori language ments, they lost the land. Tens of thousands of broadcasting, and language immersion schooling. acres were leased to forestry companies who have continued to exploit the land for maximum profit. Treaty of Waitangi Amendment Act 1986 Town and Country Planning Act 1953 Allowed claims to the Tribunal dating back to Rural Maori are prevented from building on their 1840. land, forcing many to move - 60 per cent of Maori shifted to towns and cities between 1950 and 1986 The Crown created a new property right 1980. with the introduction of a fisheries quota system, without inquiry into any pre-existing Maori fishing 1960 The Hunn Report. Jack Hunn, a top civil rights. servant, recommended stepping up the assimilation process to improve Maori educational State Owned Enterprises Act 1986 achievement and reduce other social and health disparities, to “close the gaps”. Provided for the transfer of Crown land to state‑owned corporations. This was a step towards 1961 Maori population 167,000. the privatisation or sell-off of Crown assets, 1965 The systematic process of stripping Maori reducing the possibility of the return of publicly- of their land achieved its ends. In this year, only owned resources to settle Treaty claims. Also an estimated 3,680,585 acres remained in Maori introduced the concept of Treaty “principles”. No hands. Of that, 271,226 acres were classified as Maori suffered 80 per cent of the redundancies “probably of no use”; 915,970 acres were unoc- raupatu caused by the Act, and subsequent high unem- cupied and unsuitable for farming or forestry; and ployment levels led to a sharp decrease in health in our 1,281,240 were on long term leases, most of which outcomes, including life expectancy, compared to were unlikely to return to Maori control. That left time Pakeha. 695,063 acres still in actual Maori occupation. Maori Language Act 1987 Badge from the Maori Affairs Amendment Act 1967 Pakeha ‘No raupatu Made Maori an official language and recognised it Membership of Incorporation Trust Boards was (confiscations) in as a taonga under the Treaty. opened to people other than owners, including the our time’ campaign, Maori Trustee. The trustee could seek sales from 1987 New Zealand Maori Council takes the co-ordinated by individual owners to the Crown. Once sufficient government to court over the State Owned Enter- Peace Movement numbers were obtained, the way was open to prises Act. The Court of Appeal finally requires Aotearoa. freehold the land. the government to consult Maori before public assets are transferred, and defines another set of Rating Act 1967 “principles”. This enabled local bodies to lease or sell Maori Ports Reform Act 1988 land where rates were outstanding, even though the land was not producing any income for its Allowed privatisation of Harbour Boards and owners. the right to sell assets including Crown land and foreshore, under the 1951 Companies Act, thus 1975 Maori land at lowest - 3 million acres. placing them outside the jurisdiction of the Wait- Maori Land March led by Dame Whina Cooper angi Tribunal. from Cape Reinga to parliament in protest, using ‘Not one more acre of Maori land’ as catchcry.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 51 1989 Labour government announces its set of 2001 Almost 15 per cent (one in seven) of the “Principles for Crown Action on the Treaty of population identify as of Maori descent: 526,281. Waitangi”, despite rejection of concept by Maori. The median age is 22 years, and median annual income $14,800. Fifty per cent own their own Maori Fisheries Act 1989 homes, 70 per cent of non-Maori do. Maori are three times more likely to be apprehended for an Maori legal challenges to the fisheries quota offence and four times more likely to be convicted system and the Waitangi Tribunal’s Muriwhenua than non-Maori. report forced the Crown into negotiations to give effect to Treaty fishing rights. 2003 The government’s Sustainable Water Pro- Members of the gramme of Action is established. Issues around The Act, however, reduced Maori ownership of Women’s Anti- whether or not fresh water belongs to hapu and fisheries to a cash payment and 10 per cent of the Racism Action iwi in their respective areas are not addressed. total quota. Distribution of the quota to tribes is Group (WARAG). controlled by government appointees to a Maori 2003 The Treaty Information Unit of the State Their 1985 report Fisheries Commission. Services Commission is established. The timeline - Institutional Racism produced by the unit makes reference to the Treaty in the Department of The Crown continues to sell property rights in a as having transferred sovereignty to the Crown, Social Welfare Tamaki resource which, in the Treaty, belongs to hapu. despite attempts by Pakeha Treaty educators and Makaurau - led to 1990 Electoral legislation prohibits any paid or others to have this changed to make it clear that major changes in unpaid electoral advertising by any political party Maori did not cede sovereignty. the department. contesting fewer than ten seats. No exception is made for parties such as Mana Supreme Court Act 2003 Motuhake contesting only the The right of appeal to the Privy Council was re- Maori seats. moved, and replaced by a New Zealand Supreme 1991 National government re- Court “to enable important legal matters, including writes Crown Treaty principles. legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand Treaty of Waitangi (Fish- conditions, history and traditions” despite Maori eries Claim) Settlement opposition. Act 1992 2004 National Party leader Don Brash delivers Extinguishes “forever” all Maori Orewa speech calling for an end to “race-based” commercial fishing rights in policies. exchange for a cash settlement 2004 Constitutional Arrangements Committee of $150 million to purchase part “to undertake a review of New Zealand’s existing of Sealord Products Ltd, plus 20 constitutional arrangements” is established, and per cent of new species quota. calls for public submissions in early 2005. The All present and future fisheries Committee’s report, released in August 2005, says Treaty claims by Maori are can- “the demand for constitutional change to give celled, while a vital section of the effect to the Treaty of Waitangi has been persistent Fisheries Act 1983 which states and from a variety of sources”, but there has been that “nothing in the act will affect no follow up of this by the government. Maori fishing rights” is removed. The Foreshore and Seabed Act 2004 1995 The National government imposes a “fiscal envelope” Maori customary rights and title to the foreshore policy which sets a cap of $1 billion for all set- and seabed were extinguished and replaced with tlements - before the evidence is heard by the the government’s version of customary rights. Waitangi Tribunal - and unilaterally decides a The UN Committee on the Elimination of Racial process for negotiations, despite opposition by Discrimination says the law breaches the Interna- Maori. The average value of compensation to tional Convention on the Elimination of All Forms Maori consequently amounts to two per cent of of Racial Discrimination, to which New Zealand is losses, as the Labour government continues the a state party. policy from 1999. 2005 The government withholds part of Te Wa- 2001 ‘Closing the Gaps’ (a policy to reduce gaps nanga o Aotearoa’s funding, then takes control of between Maori, Pacific people and Pakeha in the university; funding for non-degree courses at income and health, part of the 2000 Budget) is Maori tertiary education institutions is reduced. renamed ‘Reducing Inequalities’ because targeted 2006 Mission to New Zealand’, the Report of spending is perceived as a political liability. the Special Rapporteur on the Situation of Hu-

52 TREATY OF WAITANGI QUESTIONS AND ANSWERS man Rights and Fundamental Hands Across the Freedoms of Indigenous Peoples Beach, an event on his visit in 2005 (at the organised by Te invitation of the government) Rarawa in 2004 is released in April. The La- at Ahipara to link bour government dismisses the communities during report as unbalanced, and says the foreshore and it will not act on the Report’s seabed confiscation. recommendations. Photo: Gil Hanly. 2006 Principles of the Treaty 2006 A letter is sent to all District Health Boards of Waitangi Deletion Bill is introduced, has its saying the Ministry of Health has been given clear first reading and is sent to Select Committee as directions that there will no longer be any direct part of the Labour/New Zealand First confidence references to the Treaty of Waitangi or its princi- and supply agreement. Of the 171 submissions re- ples in new policy, actions, plans or contracts in ceived by the Select Committee 160 were opposed. the health and disability sector. The Bill is voted out 17 months later at its second 2007 Transit NZ refuses a request to fly the Maori reading. sovereignty flag on the Auckland Harbour Bridge 2006 Treaty of Waitangi (Removal of Conflict of on Waitangi Day. Interest) Amendment Bill is introduced, has its first 2007 Ministry of Social Development research reading and is sent to Select Committee as part shows that out of 20 indicators of wellbeing, the of the Labour/New Zealand First confidence and only four where Maori are not below the Europe- The police supply agreement. The Bill proposes to remove the an average are participation in tertiary education, possibility of serving judges on the Maori Land action on physical activity and cultural and arts activities, Court or the High Court also serving on the Wait- and regular contact with friends and family. October 15 put angi Tribunal. It is voted out 20 months later at its second reading stage. 2007 The UN Committee on the Elimination of fear into the Racial Discrimination releases its Concluding Ob- hearts of many Treaty of Waitangi Amendment Act servations on New Zealand’s periodic report to it. 2006 The Committee repeats its 2004 recommendations New Zealanders about the foreshore and seabed legislation and Sets arbitrary deadline of September 2008 for by raising the expresses other concerns about the status of the lodging historical claims (up to September 1992) Treaty, and the government’s treatment of Maori. spectre of to the Waitangi Tribunal. 2007 New Zealand is one of only four countries to terrorism. It 2006 Funding for the Treaty Information Unit of vote against the UN Declaration on the Rights of the State Services Commission is removed. put fear into Indigenous Peoples when it is adopted by the UN the hearts of Te Arawa Lakes Settlement Act 2006 General Assembly - with 143 member states voting in favour of it. There was no consultation with the elderly and The government returned ownership of lake beds hapu or iwi about the government’s position. to Te Arawa, but not the waters nor aquatic life, young people 2007 Searches and arrests are made in “anti-ter- except in relation to the plants attached to the lake of Ruatoki beds. rorist” dawn raids around the country. Non-Maori as well as Maori are affected by the raids, but and Taneatua, 2006 Census: Departing from previous practice, Maori individuals, families and communities are Statistics NZ says Maori ethnicity and descent treated very differently - for example, only Tuhoe because again are different concepts. In 2006 there are 643,977 communities in the Ruatoki valley are locked- they saw the people (17.7 % of the population) usually living in down and blockaded by armed and masked police. Aotearoa New Zealand who are of Maori descent. force of the 2006 ‘‘The New Zealand Curriculum: Draft for Policing Act 2008 state unleashed consultation 2006’ is released in July; the main An amendment “in interpreting and administering on them as it document has no reference at all to the Treaty. The this Act, effect will be given to the Treaty of Wait- majority of responses received on the Draft - from angi” is voted out. The Commissioner of Police’s has been within Maori and non-Maori submitters alike - comment- Maori Focus Forum considers “the absence of a living memory. ed on the absence of the Treaty, and the minimis- Treaty clause to be a particular disappointment”. ing of te reo Maori as well as Maori concepts Derek Fox, 2007 and content. After considerable protest, in 2007 a Climate Change Response (Emis- Ministry of Education official acknowledges the sions Trading) Amendment Act 2008 Ministry was wrong, and says references to the An amendment “that this Act should give effect to Treaty will be included in the final version. Treaty of Waitangi” is voted out.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 53 Further Reading and 5websites Cultural Safety/Equity History/ Colonisation Between The Lines: Racism and the New Ask That Mountain: The Story of Parihaka. Zealand Media. Paul Spoonley and Walter Hirsh Dick Scott (1975) Reed. (1990) Heinemann Reed. A Show of Justice. A Ward (1978) Auckland Beyond Biculturalism: The Politics of an Indig- University Press. enous Minority. Dominic O’Sullivan (2007) Huia I Shall Not Die: Titokowaru’s War. James Belich Publishing. (1989) Allen and Unwin. Considering Culture. Lisa Terreni and Judi Mc- Ka Whawhai Tonu Matou: Struggle Without Callum (2004) www.ecd.govt.nz/pdf_files/consid- End. Ranginui Walker (1990) Penguin. ering culture1.pdf Making Peoples. J Belich (1996) Penguin. Cultural Identity: Whakamana Tangata. (1992) Quest Rapuara Career Development and Transi- Mihipeka: Early Years. Mihipeka Edwards tion Education Service. (1990) Penguin. Guidelines for Cultural Safety, the Treaty of Parihaka: The Art of Passive Resistance. Ed. Waitangi and Maori Health in Nursing and Te Miringa Hohaia, Gregory O’Brien and Lara Midwifery Education and Practice. (2002) Strongman (2001) City Gallery Wellington and Nursing Council of New Zealand. Victoria University Press. Korero Tahi: Talking Together. Joan Metge Te Ara Ki Te Tiriti: The Path to the Treaty (2001) Auckland University Press. of Waitangi. Paul Moon (2002) David Ling Publishing. Media & Te Tiriti o Waitangi. (2007) Kupu Taea Media and Te Tiriti Project, www.trc.org.nz/re- Te Kooti Tango Whenua: The Native Land sources/media.htm Court 1864-1909. David V. Williams (1999) Huia Publishing. Media & Te Tiriti o Waitangi. (2004) Kupu Taea Media and Te Tiriti Project, www.trc.org.nz/re- The Quest for Origins: Who first discovered sources/media.htm and settled New Zealand and the Pacific Is- lands. K.R.Howe (2003) Penguin. Pou Korero: A Journalist’s Guide to Maori and Current Affairs. Carol Archie (2007) New The Shaping of History. Ed. Judith Binney Zealand Journalists Training Organisation. (2001) Bridget Williams Books. Skin to Skin. Carol Archie (2005) Penguin. The Story of the Treaty. Claudia Orange (1990) Allen and Unwin. Talking Past Each Other: Problems of Cross Cultural Communication. Joan Metge and Patri- The Treaty of Waitangi. Claudia Orange (1987) cia Kinloch (1989) Victoria University Press. Bridget Williams Books. The Maori and the Criminal Justice System: A The Treaty of Waitangi. Ross Calman (2003) New Perspective - He Waipanga Hou. Moana Reed. Jackson (1988) Policy and Research Division, Two Worlds: First Meetings Between Maori Department of Justice. and Europeans 1642-1772. Anne Salmond (1991) Penguin. Waitangi Tribunal Reports. www.waitangi-tribunal.govt.nz/reports

54 TREATY OF WAITANGI QUESTIONS AND ANSWERS The Treaty Today Websites A Question of Honour? Labour and the Treaty Network Waitangi Otautahi, www.nwo.org.nz 1984-1989. Jane Kelsey (1990) Allen and Unwin. Peace Movement Aotearoa, www.converge.org. Bullshit, Backlash & Bleeding Hearts. David nz/pma/indig.htm Slack (2004) Penguin. Treaty Resource Centre, www.trc.org.nz He Tirohanga Kawa ki te Tiriti o Waitangi: A Waitangi Tribunal, www.waitangi-tribunal.govt. guide to the Principles of the Treaty of Waitangi nz/reports as expressed by the Courts and the Waitangi Tribunal. Te Puni Kokiri (2001). Healing Our History: The Challenge of the Treaty of Waitangi. Robert Consedine and Joanna Consedine (2001, 2005) Penguin. Hikoi: Forty Years of Protest. Aroha Harris (2005) Huia. Honouring the Treaty. Yensen, Hague, McCre- anor (1989) Penguin. Maori Sovereignty. Donna Awatere (1984) Broadsheet. Maori Sovereignty: A Maori Perspective. Hineani Melbourne (1995) Hodder Moa Beckett. Maori Sovereignty: A Pakeha Perspective. Carol Archie (1995) Hodder Moa Beckett. Waitangi, 2003. New Zealand Maori Council v Attorney Gen- eral (1987) New Zealand Law Review No 641. Pakeha and the Treaty: Why It’s Our Treaty Too. Patrick Snedden (2005) Random House. Resistance: An Indigenous Response to Neolib- eralism. Ed. Maria Bargh (2007) Huia Publishers. Tangata Tiriti - Treaty People: An interactive workbook on the Treaty of Waitangi. Treaty Education for Migrant Groups (2006) Auckland Workers Education Association. Te Mana, Te Kawanatanga -The Politics of Maori Self-determination (1998) Oxford Univer- sity Press, Auckland. The Treaty of Waitangi in New Zealand’s Law and Constitution. Matthew Palmer (2008). Victo- ria University Press. Treaty Conference 2000: Tauiwi communities affirm the Treaty of Waitangi and explore the future of Aotearoa. (2000) Treaty Conference 2000 Publications Group. Two Peoples, One Land. Elsie Locke (1988) GP Books. Vision Aotearoa: Kaupapa New Zealand. Ed. Witi Ihimaera (1994) Bridget Williams Books. Waitangi Revisited: Perspectives on the Treaty of Waitangi. Belgrave, M., Kawharu, M., and Williams, D. (2005, 2nd edition) Oxford University Press.

TREATY OF WAITANGI QUESTIONS AND ANSWERS 55 ISBN 978-0-473-13790-8