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Communtity Law Manual | Activism | The status of te Tiriti and rights under it

Whenua Māori me Te Tiriti o Waitangi: Land occupations and claims under the Treaty

The status of te Tiriti and rights under it

Introduction

Recently in Aotearoa we have seen a resurgence of Māori land occupations inspired by a long line of Māori-led political movements – from 19th-century struggles such as Parihaka, through to the 1975 hikoi (Māori Land March), to Takaparawhā (Bastion Point) and Whāingaroa (Raglan Golf Course) in the late 1970s, to Pākaitore (Moutoa Gardens) in Whanganui in the mid-1990s.

These movements demonstrated the mounting frustration of Māori in response to breaches of Te Tiriti o Waitangi and their determination to pursue justice and resolve Tiriti grievances.

Signed in 1840, Te Tiriti o Waitangi is the founding document of Aotearoa New Zealand, setting out the relationship between Māori and the Crown (central government). Differences between the Māori and English language texts led to different interpretations of the meanings of te Tiriti. Since it was signed, te Tiriti has been repeatedly breached and ignored by the Crown, and in recent decades hotly debated in society.

Tiriti breaches by the Crown included confiscating Māori land through unjust legislation (such as the New Zealand Settlements Act 1863), along with other laws and government policies that treated Māori as second-class citizens or sought to undermine their way of life.

Tiriti breaches by successive governments led to increased protest by Māori that eventually paved the way for a new law, the Treaty of Waitangi Act 1975. This law established the Waitangi Tribunal to deal with Tiriti grievances.

Treaty rights and principles

Te Tiriti o Waitangi governs the relationship between Māori and the Crown and ensures the rights of Māori as tangata whenua are protected.

On the basis of te Tiriti, and also the English language text that the British Crown later presented as te Tiriti, the Waitangi Tribunal has, over time, developed a set of principles that it has presented as Treaty principles, including:

  • Partnership
  • Active protection
  • Participation.

These principles now inform Tiriti-based policy and practice in government and other organisations, and have led to recognition of a rights under te Tiriti, including:

  • Iwi have the right to organise as iwi, and, under the law, to control their resources as their own
  • All New Zealanders are equal before the law
  • The government is responsible for providing effective processes for resolving Tiriti grievances
  • The government has the right to make laws for all citizens.

What is the Waitangi Tribunal?

Treaty of Waitangi Act 1975, ss 6, 6AA

The Waitangi Tribunal was established to investigate claims made by Māori that actions, or inactions or omissions, of the Crown (central government) breach principles of te Tiriti and Crown duties, especially the duty to act reasonably, honourably, and in good faith as a Treaty partner.

The Tribunal functions to address outstanding Treaty claims and support reconciliation between Māori and the Crown. It’s required to report its findings and recommendations to the Crown.

At first the Tribunal only had the power to address breaches happening from 1975 onwards. Ten years later, after a further period of strong Māori protest, a significant amendment to the Act in 1985 allowed the Tribunal to deal with breaches going all the way back to 1840. In 2008 the Act was amended again to prevent Māori from bringing any further claims about historical breaches that happened before 1992.

Does the government have to follow decisions of the Waitangi Tribunal?

No. It’s important to understand that the direct impact of any Tribunal findings may be limited, as these usually aren’t legally binding on the Crown. So just because the Waitangi Tribunal recommends that the Crown do a particular thing, that doesn’t mean the Crown has to do it. The Crown may decide not to follow Tribunal recommendations, or choose to delay its response.

Are Te Tiriti o Waitangi and the Waitangi Tribunal useful in activism?

The short answer is yes! If you can show that your concerns relate to things done or not done by the Crown that cause harm to Māori, the Waitangi Tribunal may decide to investigate them. Although Tribunal findings and recommendations aren’t binding on the government, they can help to build political pressure to encourage the Crown to take action and create publicity that raises awareness around your kaupapa.

Because the Tribunal is a permanent commission of inquiry, not a court of law, it can also consider claims relating to government legislation, policy or practices, and this may be helpful in the context of activism.

The Tribunal is, however, prevented from looking at a Bill (a proposed law) that’s going through Parliament unless the Bill is referred to it by the House of Representatives or a government Minister. Therefore, the Tribunal isn’t a pathway for advocating against a piece of legislation that’s making its way through Parliament.

Various laws also refer to the Treaty of Waitangi or its principles, such as the Conservation Act 1987 (section 4), which require decision-makers to give effect to Treaty principles when they’re interpreting or administering the Act. Activists can challenge authorities in court to uphold these legal obligations.

Other protections for indigenous rights in New Zealand and international law

Indigenous rights are also protected under New Zealand law (the New Zealand Bill of Rights Act 1990) and under international conventions that the New Zealand government has signed (the UN Declaration of the Rights of Indigenous Peoples 2010 – UNDRIP). Māori can make submissions to the UN (usually through particular committees) asking them to recommend to the New Zealand government that it investigate alleged breaches of a UN convention.

Can I use te Tiriti to challenge the courts’ right to deal with me as tangata whenua?

In a number of court cases Māori have argued that the New Zealand courts don’t have the legal power to hear the case, sometimes basing their argument on te Tiriti o Waitangi. These arguments haven’t been successful. The courts have taken the position that the New Zealand Parliament has power to make laws that apply to all New Zealanders and that the courts have the power to enforce those laws.

Example: Unsuccessful challenge to courts’ power
to deal with cases brought against Māori

Case: Brooker v New Zealand Police [2017] NZHC 2658

The defendant was charged with defacing a building after writing “NZ = lies + theft” several times on a police station.

In court he argued that under the Treaty of Waitangi Māori did not transfer their sovereignty to the British Crown, and therefore the government, Parliament and the courts did not have any legal power to deal with Māori. The defendant argued that earlier cases that rejected this argument had been decided incorrectly.

The judge in this case said that the objections raised by the defendant “have been argued before the Courts of New Zealand on many previous occasions and have been rejected at all levels.” The defendant was convicted and fined.

As lawyers arguing court cases often do, the defendant also presented an alternative argument – that the Treaty had never been ratified by the New Zealand Parliament and so Māori could not have transferred their sovereignty to the Crown under the Treaty. The judge rejected that argument also.

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