Māori Studies Lecture 8

Lecture 10: Te Ara o Te Tiriti

Overview

This lecture discusses the evolutionary legal status of Te Tiriti o Waitangi (the Māori version of the Treaty of Waitangi) and the Treaty of Waitangi from 1840 to the present day. It features legal discussions, historical contexts, academic commentary, and notable cases impacting Māori treaty rights.

Sources and Context

  • The content is derived from a short biography written for the Dictionary of New Zealand Biographies and research on Māori historical treaty claims.

    • Architect of the Waitangi Tribunal: Matirata, a major figure in treaty advocacy.

    • Importance of treaty jurisprudence in understanding Māori rights and engagements.

Key Themes

Differences between Te Tiriti and the Treaty (1840)

  • Two Documents:

    • The Treaty of Waitangi (English version): Viewed by the British Crown and settlers as a cession of sovereignty.

    • Te Tiriti o Waitangi (Māori version): Understood by Rangatira (Māori leaders) as an affirmation of tenō rangatiratanga (absolute sovereignty).

  • Conflicting Interpretations:

    • These differing understandings contribute to ongoing historical and legal tensions, leading to 'diverging historical traditions.'

  • 1975 Developments:

    • Recognition of the existence of two versions of the treaty.

    • Perception emerged that these documents should be read together, but they reflect conflicting narratives.

Academic Perspectives on Treaty Jurisprudence

  • Dame Anne Salmond:

    • Emphasized the distinct political implications of the two documents, suggesting it’s incorrect to merge them due to their divergent histories.

  • Anima Kairi’s Argument:

    • Critiqued the misconception that the two documents relate; highlighted their stark differences and claimed that the Treaty should be historically viewed as largely irrelevant.

Significant Legal Cases in Treaty Status

R v Simmons (1847)

  • Background:

    • A case concerning a settler's attempt to purchase land directly from Māori, bypassing Crown preemption.

  • Judgment:

    • Justice Chapman recognized the Treaty of Waitangi as a constitutional document, acknowledging relevant relationships among the Crown, Māori, and settlers.

  • Historical Context:

    • Context of land wars and military engagement was critical as Crown efforts to assert control were militarily resisted by Māori.

We Parata v. Bishop of Wellington (1877)

  • Background:

    • Ngāti Toa sought the return of land given to the Church of England for schools, which had not been utilized as intended.

  • Judgment by Justice Prendergast:

    • Declared Māori customs as primitive and inadmissible within law, ultimately deeming the Treaty a nullity. He labeled Māori as "savage barbarians," showcasing a stark departure in judicial attitude from earlier recognition.

  • Impact:

    • Established a precedent denying validity to Māori treaty rights, impacting numerous future claims.

Tehihui Tukeno v. Privy Council (1941)

  • Background:

    • Involved Ngāti Tuwharetoa and a dispute regarding a timber company’s damages.

  • Outcome:

    • The Privy Council indicated that the Treaty needs to be incorporated into domestic legislation for enforceability, thus setting a new goal for Māori advocacy.

Changes in the 1980s

  • Judicial and Legislative Shifts:

    • Emergence of cases like the Sparrow case in Canada influenced New Zealand jurisprudence.

    • Increased recognition of Māori rights in the judiciary and government, including the integration of treaty principles into legislation following Cabinet decisions.

  • Notable Case - New Zealand Māori Council v. Attorney-General (1987):

    • The landmark ruling that reaffirmed Māori treaty rights by blocking land transfer processes inconsistent with the Treaty.

  • Outcome:

    • Recognized treaty rights as integral, though the definitions of those rights were contentious and viewed as insufficient.

The Waitangi Tribunal

Formation and Function

  • Established:

    • Formed from the Treaty of Waitangi Act 1975, the Tribunal is a commission of inquiry rather than a court and can only publish reports and recommendations.

  • Role:

    • Its mandate is to investigate claims by Māori against the Crown, determining the consistency of government actions with treaty principles; it did not have retrospective powers initially but gained them in 1985.

Impact of the Tribunal

  • Significant Reports:

    • Over 150 reports issued, addressing colonial violence and promoting reparative justice.

    • Emphasis on environmental claims was initially strong, though it transitioned towards resource restitution claims, igniting backlash from settlers and corporations.

  • Enhancing Māori Voices:

    • Provided a platform for marginalised voices in Māori communities, addressing grievances over natural resources and land use.

Recent Developments

  • Current Political Climate/Challenges:

    • Legislative attempts, such as the 2024 principles of the Treaty of Waitangi Bill, sought to redefine treaty principles, undermining previous gains for Māori rights.

    • The public response to these challenges signifies increasing solidarity across diverse community groups advocating for Māori rights.

Conclusion

  • Ongoing Journey:

    • The pathway of Te Tiriti is marked by historical significance, evolving interpretations of rights, and continuous advocacy for Māori sovereignty.

    • Future generations are faced with decisions balancing colonial legacies with justice for Māori communities, suggesting the importance of constitutional recognition and protection of Te Tiriti o Waitangi as vital to New Zealand’s legal landscape.