Part 6: Waitangi Tribunal

(This is the 6th part of a 7 part series on my final term paper for Ethnics. Click here to start at part one)

Waitangi Tribunal

The Waitangi Tribunal was commissioned as an independent judicial body set up to review actions of those acting under the authority of the Crown in New Zealand, who may have broken agreements set out in the Treaty of Waitangi. However, the Tribunal was given power only to make recommendations to the government and none to implement their recommendations. The Tribunal’s lack of jurisdiction produced as few as four cases by 1981 and the Maori were unsatisfied with such results. In 1985, Parliament amended the Treaty of Waitangi Act so that the Tribunal would serve as the one body for Maori claim review. Most importantly the act established jurisdiction for the Tribunal for actions taken as far back as 1840. With such power granted, the Tribunal could make significant and historic claims. Claims could be made against “confiscations, expropriations, title grants, and Crown and some private purchases” (Ibid 237). The Tribunal marked the first real recognition of the Treaty of Waitangi since the late 1800s which concluded the Maori had no recognizable system of government to claim sovereignty to: “hence, in legal terms, the Treaty was ‘a simple nullity’” (Alves 58).

Ever since the Treaty of Waitangi was drafted there have been arguments over the difference in translations of the treaty and, subsequently, the meaning of such differences. At the time of the Treaty the Maori had the understanding that the British had the right to make laws and maintain order, but they maintained their sovereignty. In regards to land the English version of Article II guaranteed Maori:

The full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually posses so long as it is their wish and desire to retain the same in their possession; but the Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon…

The Maori version, stated:

The Queen of England agrees to protect the Chiefs, the sub-tribes and all the people of New Zealand in the unqualified exercise of their chieftainship over the lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

This right of preemption, which was in the English version but not the Maori, gave the Maori only one buyer—the Crown—and also contributed to the Maori being persuaded to sell their land (Bourassa and Strong 232). The large amount of land lost to such misunderstands became major Maori cases in the Tribunal’s hearings.

However, major questions arise with what compensation is acceptable for both the Maori and the Pakeha. There exist two separate, and very different, ideas about this issue. On one hand you have the Maori having suffered the full wrath of European invasion: Losing (either through legal land sales or illegal confiscation) 95% of their original land holdings, experiencing an almost complete disappearance of their native language and parts of their culture, and a limited representation in the current political system. To the Maori they feel every entitlement for restitution of their land and culture, using the government that took everything away to gain everything (and possibly more) back. On the other side you have those (mainly Pakeha) who feel to give back land to the Maori is in itself an unfair distribution of land to those whose only claim to it lies in their ancestral heritage—even though many of the Maori have mixed with the Pakeha complicating the matter further. It is these types of opinions the Waitangi Tribunal must deal with, and try to make amends with.

In the Tribunal’s short history, there have been several important decisions made concerning Maori recognition from the government. In a claim brought by the Maori organization Te Kaiwhakapumau I Te Reo Maori, the group stated that the New Zealand government had failed to protect the Maori language and such a failure went against a promise in the Treaty of Waitangi. The Tribunal (Waitangi Tribunal 1986) declared: “The ‘guarantee’ in the Treaty requires affirmative action to protect and sustain the language, no a passive obligation to tolerate its existence and certainly not the right to deny its use in any place” (qtd. in Spolsky 564). With the Tribunal’s ruling on the Maori language the Maori Language Act 1987 passed. “The purpose of the Act was ‘to declare the Maori language to be an official language of New Zealand’” (Ibid 564). It allowed the language to be spoken in legal proceedings and for an interpreter to always be available. It also set up an official government institution for the promotion of the Maori Language, the Maori Language Commission. Again we see the Maori use the government—this time to help promote the language that was almost wiped out completely due to State policies.

The biggest settlement on land claims was the Waikato Tainui Raupatu (confiscation of land) Act 1995. Under the New Zealand Settlements Act 1863 the government confiscated 1.2 million acres of the Tainui land, and the Tainui finally had an opportunity for restitution with the Waitangi Tribunal. The claims process began in 1987, negotiations started in 1992 with the National government, and finally in 1995 the deed of settlement was signed. The Crown gave out an official apology that included a personal one from the Queen when she visited the Island in 1995. The Crown recognized they unfairly labeled the Tainui as rebels and confiscated their land unfairly and by depriving the tribes of their land have caused them much suffering. Through this settlement, the Maori “sought not just money, but the removal of that stigma” (Bourassa and Strong 249) of being labeled rebels when they were merely protecting their land from the unfair confiscation from the government during the land wars. Tainui’s principle negotiator expressed the Maori sentiment about the settlement:

Our settlement is not about replacing the responsibility of the government, nor is it about short term remedy. The Crown still has a duty to provide for proper standards of health, welfare, housing, employment and all the basic needs that Maori people along with other citizens require. (qtd. in Alves 99)

I believe it is type of thinking that most Maori believe, and it makes sense. They have sworn their sovereignty over to the Crown and expect the same rights and priviledges as every other group under Crown governance. However, they have experienced time and time again, the government taking more from them than giving to them. The Waitangi Tribunal is a start in the people’s process towards a more just system, the question is to what end will this process take them?

The Waitangi Tribunal continues to this day to be the foremost entity working for equity and restitution for the Maori people. The Tribunal hears claims on a daily basis but few ever actually make it to any type of real legal process. It is interesting to note how once even just a little power is given to such a minority group as the Maori they are able to make substantial gains in terms of gaining land or changing existing policies. It strengthens the arguments of those in favor of separate Maori governance in order to achieve Maori ideals; especially those that have been trampled on from the European-run governments in the past.