Rights Legislation and Treaty Negotiations

  • Doug Graham
Treaty of Waitangi Negotiations

"Ki mai ki ahau, he aha te mea nui o te ao ?
You ask me what is the most important thing in the world?
Maku e ki atu,
I say to you,
he tangata !
tis people !
he tangata !
tis people !"

So says a well known Maori proverb from the northern tribes of New Zealand. So too I want to emphasise today in discussing the joint impact in New Zealand of rights legislation and Treaty negotiations under the Treaty of Waitangi. Rights legislation and Treaty negotiations are not ends in themselves. They are merely tools that serve the greater goal -- peoples, their cultures, their relationships with each other.

In New Zealand it is the Treaty of Waitangi, our foundation document, which guides the relationship between Crown and Maori, and increasingly the relationship between Maori and other New Zealanders more generally. For us, both the most powerful rights legislation for Maori and the negotiation of indigenous claims have tended to centre around the Treaty of Waitangi.

The Treaty was signed over 150 years ago by the British Crown and a large number of individual Maori chiefs. Yet today in New Zealand we rely heavily on the Treaty, its spirit and principles as we try to make progress in the relationship between Maori and other New Zealanders. The Treaty has been at the heart of the most significant developments in this area in recent years. So it seems to me that any discussion about New Zealand's Maori rights legislation and negotiations with Maori must begin with the Treaty of Waitangi.

I propose to start with the text of the Treaty itself. I will then speak at a little more length about the development of what we call Treaty principles, the incorporation of references to these principles and of references to the Treaty itself into legislation, and the effect that such legislative reference have had. Considering the impact of legislative references to the Treaty will lead me to the process of negotiating claims under the Treaty. I'll endeavour to draw out some of the lessons we have learnt with respect to negotiations under the Treaty -- lessons, it would seem, that support a focus on Treaty principles and the inter-cultural relationships that the Treaty is coming to symbolise in present-day New Zealand. While I will note briefly the considerable legislative protection New Zealand affords broad fundamental rights or human rights, including the rights of Maori, I will leave a fuller discussion of that area to my colleague the Hon. Justice David Baragwanath, President of the New Zealand Law Commission.

The most powerful rights legislation for Maori, as Maori, up until the present has probably been legislation which makes reference to the Treaty of Waitangi or its principles, and that which enables Maori to make claims against the Crown for breaches of the Treaty. The Treaty itself is a refreshingly short document of only three articles. Two of those articles are a source of Maori rights:

The third article, sometimes termed "the equality clause", extended the Queen's protection to Maori and imparted to them all the rights and privileges of British subjects. In practical and contemporary terms this clause has come to mean that any Maori New Zealand citizen is entitled to the same rights and privileges as all other New Zealanders. In the context of our quite inter-mingled New Zealand society -- one which I believe is generally fair-minded and based solidly on egalitarian ethics - this article has not become the subject of contention. I would like to report that we don't waste time arguing whether Maori should be able to enjoy social and economic conditions equal to that of other New Zealanders.

Article two guaranteed to Maori "tino rangatiratanga", roughly translated from the Maori that's chieftainship and authority. It also guaranteed Maori "the full and exclusive 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". Determining the exact meaning of this article and the precise requirements of honouring it in contemporary New Zealand is probably an impossible feat. In recent years it has been the basis of claims ranging from fisheries, forests, and protection of Maori language, to rights to indigenous flora and fauna and the genetic resources contained within them, and to the exercise of Maori self-management at a range of levels.

Various academics have attempted to ascertain the precise, if rather abstract, meaning of article two of the Treaty of Waitangi. While the task is interesting, great attention to linguistic detail does not seem to be the most helpful approach or the path our Treaty jurisprudence is taking. Rather, a comparison of the Treaty's first and second articles suggests looking at the Treaty as a pact of goodwill between peoples. Under article one Maori ceded sovereignty -- or, to use the missionary Maori term, kawanatanga -- to the British Crown. In return Maori were guaranteed the article two and three rights that I have just outlined. Our nation's founding inter-cultural relationship was envisaged by the Treaty. Today we look at that pact as a symbol of an ongoing relationship between peoples based in notions of trust, respect and dignity.

The Treaty has become a guide to relationships, to the way Crown and Maori, and also Maori and other New Zealanders, should treat each other. And so it has a greater impact than if it were only an expression of Maori rights. Even when we are not always sure exactly how far Treaty rights or obligations extend in particular contexts, there is a growing sense of the approach the Treaty suggests, the direction in which it leads us. The Treaty's spirit points the way, with the concrete details worked out pragmatically as we come to them. And over time those challenges change and so do the solutions to old ones.

Two key institutions within the New Zealand court system have contributed greatly to the development of Treaty jurisprudence through articulating Treaty principles and considering their meaning in the particular context under investigation:

The first of these is the New Zealand Court of Appeal. The Court of Appeal has been explicit about its view of the Treaty as an embryo rather than a fully developed and integrated set of ideas. Particularly since 1987 that Court has set out Treaty principles and expanded upon them in numerous judgements.

The second institution that has articulated Treaty principles is the Waitangi Tribunal. That Tribunal consists of a balance of Maori and non-Maori members whose primary task is to investigate, report on and make recommendations in respect of claims by Maori against the Crown for breaches of Treaty principles. Indeed the Tribunal's statutory role largely depends on their interpretation and application of Treaty principles. Not surprisingly then perhaps the Waitangi Tribunal has gone to great lengths to explore the meaning of the principles of the Treaty of Waitangi.

Beyond the Court of Appeal and the Waitangi Tribunal the concept of Treaty principles seems to have been widely accepted, even by successive Governments, who have included references to them in legislation. With the passage of time Treaty principles have perhaps become even more frequently relied upon than the words of the Treaty themselves. Yet there is no comprehensive and exhaustive list of these principles. Certainly when Parliament has included references to Treaty principles it has quite deliberately left it to the courts to determine exactly what those principles are in particular circumstances and at particular times.

The result seems so far to be a number of broad touchstones generally understood as Treaty principles. For example, Treaty principles suggest that the Treaty signifies a relationship like a partnership based on good faith and reasonable co-operation. According to Treaty principles, that Treaty relationship implies the implementation of the Treaty in a broad and generous spirit that takes account of cultural difference. From the Treaty's three articles we can trace principles requiring the Crown to govern and make laws in respect of the whole New Zealand community, granting Maori the right to exercise self-management within the law, to maintain Maori culture and to control their resources, as well as entitling Maori to equality before the law and to the protection of the Crown.

Treaty principles contemplate evolution in the Treaty relationship and changes in factual circumstances, and they do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. In addition, principles imply a duty on the part of the Crown to actively promote the protection of Maori property and identity in accordance with Maori values to the fullest extent practicable, as well as a duty to consult with Maori when government policies may affect special Maori interests. And Treaty principles dictate that there is a right of redress to either party in case of breach of the Treaty with appropriate compensation but not so as to create a new injustice.

Further, emerging from exploration of Treaty principles we find an ethic that links those touchstones together - an ethic of integrity, honour, respect. An ethic with which we aspire to imbue cultural relations in New Zealand. An ethic that is sometimes termed the spirit of the Treaty of Waitangi. Through its principles and their companion ethic of integrity, honour and respect, the Treaty of Waitangi has been brought to life in recent years.

A general sense of how Treaty partners should treat one another can become a concrete and quite demanding standard in specific cases -- thanks to the inclusion of references to the Treaty in legislation. One of the better-known cases determining the meaning of a statutory reference to Treaty principles illustrates how the New Zealand courts' interpretations have produced rather significant results. That case is a 1987 Court of Appeal decision that has become known as the Lands' case. [1987] 1 NZLR 641 The case concerned our State-Owned Enterprises Act 1986, an act passed to begin the process of rationalising and corporatising government assets. That Act included a provision that "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi" Section 9.

The Court of Appeal considered the content of Treaty principles at length -- indeed to the extent that its judgments have come to form the basis of our jurisprudence on their meaning. The Court found that the reference to Treaty principles obliged the Crown to work out a system of safeguarding Maori claims under the Treaty before transferring land to state-owned enterprises. Following that decision the Crown and an organisation called the Maori Council negotiated a regime to allow assets transferred to state-owned enterprises to continue to be used as redress in settling Treaty claims relating to them. The legislation implementing that regime gave the Waitangi Tribunal a binding power to order those particular pieces of land to be compulsorily acquired and returned. And the pattern of Crown negotiations directly with Maori was set in place.

The State-Owned Enterprises Act is just one of a considerable number of pieces of legislation that now refers to the Treaty in one way or another. The Conservation Act 1987, the Environment Act 1986, and the Crown Minerals Act 1991 , for example, explicitly refer to Treaty principles in manners similar to the State-Owned Enterprises Act.

Some other Acts which do not refer explicitly to Treaty principles still seek to cater to Maori needs in a manner consistent with Treaty principles. Such legislation does this by recognising Maori social structures, special interests and the importance of including Maori perspectives and active involvement. For example the Children, Young Persons and their Families Act 1989 provides for the Maori family groups of whanau, hapu and iwi to be brought into the decision-making process about how to deal with care and protection issues or offending by young Maori. Similarly, the State Sector Act 1988 requires employers to have regard to the aims and aspirations of Maori people. Section 56 The Broadcasting Act 1989 and the Education Act 1989 are further examples of New Zealand legislation that attempts to create mechanisms in accordance with Treaty principles.

And of course when legislation establishes national bodies it needs to recognise the special place of Maori in New Zealand society. While such legislation need not state Treaty principles explicitly its recognition of Maori interests is consistent with and perhaps even the result of our acceptance of those principles. For example, our Law Commission Act 1985 directs our Law Commission to seek a Maori dimension in its proposals for law reform.

Sometimes legislation will require that regard be had to Treaty principles and also provides concrete obligations which indicate how this ought to be achieved. The Resource Management Act, 1991 an Act which redefined Crown and local authority responsibility for the management of natural and physical resources, illustrates such guidance. The Act recognises the special relationship that Maori have to particular resources covered by the Act, and a ttempts to define relevant Maori concepts. It sets out a framework for the involvement of Maori in the preparation of regional policy statements and plans, and for their involvement when resource consents are sought. And the Act requires the Planning Tribunal to have a mix of knowledge and experience which includes the Treaty of Waitangi and Maori ways of doing things.

Further legislative requirements beyond the principles themselves are necessary when adherence to Treaty principles would require particular and specific action. As many of us in New Zealand have in recent years been on a rather steep learning curve as to the impact of the Treaty in a range of areas of our lives it has been helpful to have some concrete procedural requirements in legislation to which we can turn. Indeed, some legislative amendments developing particular mechanisms for implementing Treaty principles derive from Waitangi Tribunal reports. For example, the Local Government Amendment Act 1989 sets out a structure for consultation and discussion between local governments and Maori advisory committees. It followed a 1988 Waitangi Tribunal report noting, in considering the relationship between local authorities and Maori communities, that the objection rights in planning laws do not fulfil Treaty obligations when there is not the facility for prior consultation with the tribes.

It's a fine balance though -- between the comfort of specific, concrete obligations and the flexibility of a principles approach. Reference to the Treaty and to Treaty principles enables us to maximise the benefits of the Treaty as living document. The Treaty and its principles are constantly applied in New Zealand to circumstances far beyond those that might have been envisaged in 1840. From rights to species of fish introduced since the signing of the Treaty, to commercial whale-watching tourist ventures and to the generation of hydroelectricity -- we demand that the Treaty keep up with the most modern aspects of New Zealand society. It's just as well that, as the Waitangi Tribunal has noted, the Treaty "was not intended as a finite contract but as the foundation of a developing social contract" Motunui-Waitara Report, 1983, 2nd ed., 52.. Leaving open the exact practical implications of their application allows Treaty principles to endure -- leaving room for pragmatic and often innovative steps in changing circumstances.

A degree of openness and flexibility is also required because Treaty principles are often used to bridge differing cultural perspectives. British colonisers brought their law to our part of the world as a bastion of order, to be thrust upon what they saw as the unruly chaos of a culture they did not understand. As a result of that inheritance, our law reform agencies are constantly striving to make law more responsive to the needs of our society and more reflective of the various cultural perspectives within that society. The challenge is poignant in the Treaty area. For example, with respect to natural resources, such as water in lakes and rivers, underground geothermal steam, and minerals, many New Zealanders are just considering that the English common law's approach to ownership is not the only way of looking at it. There is more room for the evolution of inter-cultural understanding, and for the reflection of this understanding in the law, when the Treaty is not reduced to rigid rules.

We also see Treaty jurisprudence benefit from the fact that it is not reduced to rigid rules when we consider the role it plays in the New Zealand constitution. New Zealand is one of only a very few countries without a written document or handful of documents that can be identified as the constitution. We have an unwritten and evolving constitution. This, combined with the evolving nature of the Treaty relationship itself, leaves us with some flexibility to respond to the constitutional position of Maori. Gradually, and in fragments, steps of constitutional significance have been taken -- the Waitangi Tribunal's jurisdiction has been extended, obligations to consult have developed in various policy areas, and, as I've already noted, Treaty principles have been expressed and incorporated into legislation. In these senses, the Treaty -- or at least some intangible notion of its spirit -- has at some undefined point become part of our evolving constitution.

While I have argued today that the most powerful rights legislation up until the present day has been legislation which makes reference to the Treaty of Waitangi, I do want to briefly mention customary rights. Statute law was used in New Zealand last century to extinguish customary rights to land. However, statute law did protect customary rights to fish. Customary rights for freshwater fishing are indeed still protected by our Conservation Act and have led to a number of rather high profile cases. The negotiation of historical grievances arising under the Treaty of Waitangi has brought to the fore other customary rights issues and has highlighted the lack of a clear dividing line between Treaty rights and common law rights. Certainly the Government is acknowledging that the Treaty is not the only paradigm for the consideration of Maori rights. Just how we in New Zealand will employ legislation to preserve and cope with those customary rights that still remain is an issue with which we are currently grappling.

Before I move from a discussion of rights legislation to one of negotiation, I should mention what is perhaps the most obvious rights legislation in the New Zealand statute book -- the New Zealand Bill of Rights Act 1990 and the Human Rights Act. 1993 Our Bill of Rights Act affirms the right to freedom from discrimination Section 19 on the grounds set out in the Human Rights Act. Those grounds include discrimination on the grounds of race and ethnicity. In addition, the Bill of Rights affirms the rights of minorities, Section 20 including that ethnic minorities should not to be denied the right to enjoy their culture or language. These fundamental human rights clearly extend, and relate particularly, to Maori. And with international law developments such as the intergovernmental negotiations on the United Nations Draft Declaration on the Rights of Indigenous Peoples we are reminded that indigenous rights have much to do with international human rights. However, the positive rights and obligations, and the special relationships that emanate from Treaty principles are conceptually pro-active and still seem to offer Maori something different and in addition to the provisions of our Bill of Rights or Human Rights legislation.

I acknowledge freely that New Zealanders have not always lived up to the model set by the Treaty's notions of trust, dignity and respect. When I became Minister in Charge of Treaty of Waitangi Negotiations in 1991 it was glaringly obvious that all was not well in the relationship between Crown and Maori. The settlement process -- that is the negotiation of redress for historical grievances under the Treaty of Waitangi - is an opportunity to acknowledge the mistakes of the past, to try to make amends and to establish a sound basis on the strength of which we can move forward.

Settlements do not alter the terms of the Treaty or absolve either party from obligations under it. Rather, the negotiation process is entirely consistent with the terms of the Treaty of Waitangi. Legislation provided our Waitangi Tribunal with jurisdiction to consider claims regarding breaches of Treaty principles dating back to 1840, and against that legislative background the New Zealand Government has begun direct negotiations with Maori. Accordingly, in the process of negotiating settlements for historical grievances under the Treaty of Waitangi many of the themes and tensions that I have just discussed in relation to legislation arise again.

Treaty principles carry the application of the Treaty into the future, envisaging an ongoing relationship based on good faith and reasonable co-operation. But, in order for that relationship to continue into the future in the manner that Treaty principles would suggest, some acknowledgement of, and redress for, the setbacks of the past needs to be made. It seemed to me in 1991 that it was not enough to ignore the health, education, welfare and employment conditions of Maori, to say nothing of a deep-seated sense of grievance, and simply proclaim an approach of forward-looking co-operation between Crown and Maori.

If, we could devote some time to negotiating with those Maori whose claims had validity, and if by settling those claims fairly the compensation would form an economic base controlled by the claimants themselves, then we would all benefit. Maori self-respect would be re-established, they would move away from dependence on the state for so much, they could preserve their cultural treasures as they saw fit, and, if they wished, they could provide health and education facilities for their people in the manner of their choosing. This seemed likely to be a far better investment of taxpayer's money than just paying out millions for no significant return. And settling claims is the honourable thing to do - a course consistent with treaty principles.

But in negotiating Treaty settlements we entered uncharted territory. As with the use of legislation to ensure the application of Treaty principles, we need an open, flexible approach to cross cultural barriers and deal with variant circumstances, and we need to be able to apply that approach consistently as well as pragmatically and practically. It seems that we can look to the Treaty principles' emphasis on relationship building for general guidance, and to the ethic of integrity, honour and respect. But that still leaves quite a bit to be determined in the particular case at hand.

Just as when legislation refers to Treaty principles it is often hard to predict the exact meaning of those principles in a particular case, with the settlement process the goals can become a little fuzzy. The honourable goal is to remove the grievance and set up a base from which Maori can move forward, as a flourishing culture that enriches New Zealand. That goal would include nurturing the inter-cultural relationships within New Zealand. But there are many interests at stake, and these sometimes lead to emphasis of shorter term and even short-sighted objectives, like handing over cash and forgetting about the need for ongoing relationships between Crown and Maori, and across cultures more generally.

A sensible and far-sighted settlement process values those intercultural links. As with the application of principles referred to in legislation, I think we do well to remember in the settlement process that the point is relationship building across cultures and cultural survival for Maori. Such an emphasis on inter-cultural relationships suggests that understanding must extend down to quite a personal level between Maori and other New Zealanders, and that action must extend beyond strictly legal requirements.

For me, a particularly memorable moment illustrates the value of building personal links and of taking steps beyond those the law demands. It was at the signing of the Deed of Settlement between the Crown and Waikato-Tainui -- a major tribe with which a major settlement was made in 1995. In addition to $170 million of cash and assets the Crown returned to Waikato-Tainui the korotangi, a stylised bird said to have adorned the bow of the Tainui canoe during the great migration many centuries ago. This was not part of the negotiated settlement. It went beyond the legally agreed terms to deeply personal and spiritual values that fortify relationships. Tears flowed.

By keeping in mind the goals of settlement suggested by Treaty principles we can at least be aware of the all-too-threatening risks inherent in negotiating settlements. A claims process can very quickly come down to technical legal issues. And those details do have to be resolved. Particularly in new Zealand a rather large percentage of the national coffers are at stake. But if one lets the focus shift away from the cultural goals, the process can become an antagonistic battle in which parties are forced back into rigid camps. That is not the way to nurture the innovative solutions often required to bridge cultural gaps. It forces us back into competitive forms of social organisation and ignores the realities of inter-mixed contemporary New Zealand, where we live in the same streets and play in the same sports teams. In February this year the Waitangi Tribunal released a report identifying themes in claims across the country -- a move that recognised the need for broad vision in this area. We are striving to make the settlement process enhance, rather than detract from, inter-cultural goals.

Both the application of statute law referring to Treaty principles and the negotiation of settlements are very much creative processes. We want to use law and negotiation to advance the common goal of improved cultural relations and the cultural survival of Maori in New Zealand. We need Treaty principles to guide us but not to restrain the innovation that often seems to hold the key to progress in inter-cultural relations.

New Zealand is unique in having the Treaty of Waitangi as the focus for debate. Up until the present it has been both the basis for the majority of legislation affirming Maori rights and the key point of reference in negotiations for settlements take place. The Treaty principles' foundation infuses a positive ethic and an emphasis on relationship building into much of our legislation as well as into the negotiation process. It does not provide certainty of detail -- but, rather, leaves the specifics to be worked out as best suits the particular circumstances at hand. Our Court of Appeal emphasised the strengths of this approach when the current President of that court it said in the Land's Case:

"The way ahead calls for careful research, for rational positive dialogue and, above all, for a generosity of spirit. Perhaps too much has at times been made of some of these differences and too little emphasis given to the positive and enduring role of the Treaty."

In New Zealand that positive and enduring role of the Treaty is a reminder that legislation and negotiations are not ends in themselves. They are merely tools that serve the greater goal -- peoples, their cultures, their relationships with each other.

"Ki mai ki ahau, he aha te mea nui o te ao ?
You ask me what is the most important thing in the world?
Maku e ki atu,
I say to you,
he tangata !
tis people !
he tangata !
tis people !"