1 Negotiating historical settlements with Indigenous People – the New Zealand Experience Introduction The purpose of this address is to discuss the possibilities of Alternative Dispute Resolution (ADR) in New Zealand in disputes between the Crown and indigenous groups, and also in intertribal disputes. Many such disputes come before the courts of New Zealand, normally in the form of judicial review of some decision by the Crown. Court resolution obviously has its place but ADR offers a more expeditious and effective means of resolving many of the disputes in which I was involved in my nine years as Attorney-General of New Zealand and Minster for Treaty of Waitangi Negotiations. Background Māori first came to New Zealand, probably from Japan or Taiwan via northern Polynesia, about 1000 years ago. They are divided into tribes or iwi, and each tribe consists of a number of sub-tribes or hapū. For example, for hundreds of years the hapū of Whanganui lived alongside the Whanganui River which flows from the central North Island down to the Tasman Sea. It is New Zealand’s longest navigable river. The hapū were known as the River People who lived in a narrow margin along the banks of the river. At one stage there were 140 river settlements. Some iwi have hundreds of hapū; others are very small and may only have a few hapū. In the early 19th Century, Europeans began visiting New Zealand on a regular basis and, in 1840, the Crown signed a treaty with Māori. This treaty, known as the Treaty of Waitangi, was a very short document which said:1 HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect 2 their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands—Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions. Article the First The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of 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 Territories as the sole Sovereigns thereof. Article the Second Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf. Article the Third In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. There has been a vigorous debate over the meaning and effect of the Treaty, and whether the English version differs in meaning from the Māori version. For many years, the status and effect of the Treaty has been debated. Scholars have asked whether the Treaty has a status in international law, and whether, apart from the Treaty, Māori customary law has protection in common law. I will not address any of those issues in this speech. 3 Promises made at Waitangi were not kept. So, for example, in 1840 Māori owned most of New Zealand but within 100 years, they owned virtually nothing. This was because of: a. Dubious private and government land purchases. For example, the largest tribe in the South Island (Ngai Tahu) sold most of the South Island to the Crown for around 15,000 pounds (or about a fraction of a penny per acre). Promises were made about providing schools and hospitals but this never really happened. By the turn of the 20th century there were very few members of Ngai Tahu left. b. Raupatu or confiscation. This was land seizure sanctioned by Parliament. Māori land was confiscated from so-called rebel tribes who had objected to their land being taken. Some of the worst confiscations occurred in what are now the rich North Island dairy farming areas of Waikato and Taranaki. Tribes who supported the Crown, or who didn’t take sides in the disputes, fared little better because most of their land was taken as well. c. The Crown also established the Native Land Court which didn’t operate as a court so much as an agent of the Crown. Legislation passed in the mid-1860s converted customary lands (which were held in collective ownership) to individual title. Obtaining title was a very time consuming and expensive operation. To add insult to injury, those costs were generally borne by the Māori. It was not unheard of for both the hearings and surveying to absorb the entire value of the land so owners were left with nothing. When Europeans first came to New Zealand, local Māori took to capitalism and commerce very well. They exported fish over to New South Wales and trade with your colony was highly successful in other products like flax. Exports of other products went to Asia. Māori 4 owned flour mills throughout New Zealand. For example, over 50 were built in Waikato in the years following the signing of the Treaty. One of the great tragedies of New Zealand was that the actions of the Crown and settlers destroyed the commercial trade of the Māori and reduced them to penury. With the loss of land came the inevitable loss of population. At the time the Treaty was signed it was estimated that there were around 100,000 Māori but, by 1900, that population was reduced to around 40,000. Life expectancy figures were appalling. Today there are around 700,000 New Zealanders of Māori decent. Life expectancy figures are still behind Europeans (or Pakeha). In the years after the signing of the Treaty, not only land was lost. Indigenous language use declined. I remember meeting an elderly lady in a remote part of the North Island who told me that she was beaten at school for speaking Māori. That was the pattern throughout New Zealand for many years. Today only around 20% of the Māori population can speak its own language. A change of attitude In the early 1970’s there was a growing awareness of the aspirations of Māori and the need to start to address these longstanding historical grievances. In 1975 Parliament passed the Treaty of Waitangi Act, the preamble of which explains its purpose:2 Whereas on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Māori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Māori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles. 5 Initially the Tribunal could only inquire into contemporary grievances, but its jurisdiction was enlarged in the mid-1980’s3 so that any Māori could claim that he or she, or any group of Māori of which he or she is a member, is or is likely to be prejudicially affected – a) “by any ordinance of the General Legislative Council of New Zealand, or any ordinance of the Provincial Legislative Council of New Munster, or any provincial ordinance, or any Act (whether or not still in force), passed at any time on or after the 6th day of February 1840; or b) by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after the 6th day of February 1840 under any ordinance or Act referred to in paragraph (a) of this subsection; or c) by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or d) by any act done or omitted at any time on or after the 6th day of February 1840, or proposed to be done or omitted, by or on behalf of the Crown,— and that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.” This amendment has transformed the Crown/Māori relationship in the years following its passage.