By Dr Muriel Newman | From: NZCPR | November 22 2014

Last week the Waitangi Tribunal released WAI 1040 – a report into the claim by Ngapuhi and other northern iwi that their chiefs did not cede sovereignty to the Crown when they signed the Treaty of Waitangi. This first stage of their inquiry began in 2010 and covers the period up to the signing of the Treaty. The second stage will consider events after February 1840.

Unsurprisingly, the Tribunal rejected established history to find in favour of the claimants, that the chiefs did not relinquish their power and authority over their people or their territories to the British in 1840.

The Tribunal asserts, “Though Britain went into the Treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Maori and Pakeha, it did not explain this to the rangatira.” The report claims Britain’s representative William Hobson and his agents explained the Treaty was granting Britain “the power to control British subjects and thereby protect Maori”, while chiefs were told they would retain their “tino rangatiratanga”, or independence and full chiefly authority.

The Tribunal argues that the chiefs consented to the Treaty on the basis that they and the governor were to be equals, each controlling their own people. How this relationship was going to work in practice, especially where the Maori and European populations intermingled was apparently going to be negotiated over time on a case-by-case basis.

The Tribunal was silent on the important matter of how and when the Crown acquired the sovereignty that it exercises today.

In response to the report, the Attorney-General and Minister of Treaty of Waitangi Negotiations Christopher Finlayson stated: “There is no question that the Crown has sovereignty in New Zealand. This report doesn’t change that fact. The tribunal doesn’t reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown’s acquisition of sovereignty or how the treaty relationship should operate today.”

The Minister said that the Government would consider the report as it would any other tribunal report. Since the findings of the Waitangi Tribunal are not binding on the Crown – except in some limited instances involving ‘memorialised’ Crown land – as with any report from a Crown agency, the government can either opt to respond, or simply receive it and take no further action.

Historian Professor Paul Moon, from the Auckland University of Technology, said the most concerning aspect of the report was the way the tribunal seemed to be re-writing history with little apparent regard for evidence: “This report may serve the interests of some groups, but it distorts New Zealand history in the process, and seriously undermines the tribunal’s credibility. I was shocked by some of the statements contained in the report. This is not a concern about some trivial detail, but over the fundamental history of our country, which the tribunal has got manifestly wrong.”

Professor Moon was critical of the importance given by the tribunal to the Confederation of United Tribes’ 1835 Declaration of Independence: “The tribunal sees the declaration as some profound assertion of Maori sovereignty. However, the declaration had no international status, and was regarded by British officials at the time as ‘a silly as well as an unauthorised act’. For some inexplicable reason, the tribunal has again ignored all this evidence.”

Ngapuhi leader David Rankin, a descendent of warrior chief Hone Heke, issued a statement in response to the report, saying that it defames his famous ancestor, and that if the tribunal refuses to alter the report to reflect the testimony he provided, he would lodge a Treaty claim against the tribunal itself – “the first in Treaty history for prejudicial effect”.

Mr Rankin gave evidence at one of the Tribunal’s hearings: “When our tupuna, Hone Heke, signed the Treaty of Waitangi, he did so because he knew it was the only option in terms of having a relationship with the British Crown.  But the tribunal is now telling us that all those chiefs saw the Declaration of Independence, which a few had signed in 1835, as being the basis of their relationship with the British.  That is a lie and that is not what the tribunal was told.”

Following the release of the Tribunal’s report, it took no time at all for one iwi leader to claim that the findings of the report “demands looking with fresh eyes at Maori claims for the likes of water, oil and mineral rights”.

This is undoubtedly just a start, and we should expect that opportunists will use the Tribunal’s self-serving report to demand even greater privileges and governance rights. There will be calls for more compensation and fresh claims for Crown resources of land, water, oil, and minerals – perhaps even for private property. 

But claims to the Waitangi Tribunal are not the only avenue being used by iwi to pursue power and wealth.

Treaty demands through the Office of Treaty Settlements are no longer focussed only on property and monetary payouts – they include many new constitutional concessions that are consistent with the establishment of a privileged class in New Zealand such as seats at council tables, control of beaches, changes to place-names, co-governance rights, and so on.

The Courts also, have long been a popular option – sometimes as far as the Privy Council – with some judicial decisions having a major impact on the country. One such decision was the Ngati Apa case.

To refresh your memory – in 1997, in response to their mussel farming application being rejected by the local council, eight South Island iwi made a claim to the Maori Land Court to have the foreshore and seabed of the Marlborough Sounds declared as customary Maori land. While that Court decided that it could consider the issue, the Crown appealed the case to the High Court, which ruled that the foreshore and seabed were beneficially owned by the Crown and that the Maori Land Court had no jurisdiction in that area.

The iwi appealed the case to the Court of Appeal, which in 2003, controversially overturned settled law – including the earlier 1963 Ninety Mile Beach Court of Appeal landmark judgement – to rule that the Maori Land Court did have the jurisdiction to determine the case.

Chief Justice Dame Sian Elias stated: “It may well be that any customary property will be insufficient to permit a vesting order with the consequence of fee simple title. But that does not seem to me to be a reason to prevent the applicants proceeding to establish whether any foreshore or seabed has the status of customary land. I consider that the Maori Land Court has jurisdiction to entertain the application.”

Such reversals of laws that have been established through the same Court are very rare and extremely disruptive since they throw into disarray all of the case law based on the original decision. At the time, some commentators remarked that the Court of Appeal was simply following the direction of then Attorney-General, Margaret Wilson, to develop an “indigenous law”.

A constitutional crisis followed the Appeal Court’s decision. Iwi thought the ruling meant they owned the foreshore and seabed and their claims flooded in to the Maori Land Court, not only for areas of the foreshore and seabed out to the 12 nautical mile (22.6 km) Territorial Sea limit, but some included the whole of New Zealand’s 200 mile Exclusive Economic Zone as well.

In response, the Labour Government passed the 2004 Foreshore and Seabed Act, which legislated for Crown ownership of the foreshore and seabed. The political fallout resulted in the formation of the Maori Party, and in 2011, in cahoots with the governing National Party, Labour’s law was repealed and replaced with the Marine and Coastal Area Act, which allows for private Maori ownership and control of the foreshore and seabed.  

A similar case has been winding its way through the courts, which, while it might not be as dramatic as the Ngati Apa case, because it deals with customary ownership of rivers and potentially fresh water it could nevertheless have a significant affect on New Zealand’s domestic affairs.

The case is John Hanita Paki and others v The Attorney-General. The descendants of the owners of land situated at Pouakani on the Waipapa stream, a tributary to the Waikato River, have been arguing in the courts that when their ancestors disposed of the land to the Crown in 1887, they were not advised that they owned the riverbed to the midpoint in accordance with the common law*. As a result, they claimed that the Crown had a fiduciary duty to hold the river (which has power stations nearby) for their benefit.

The Supreme Court judgement on the case, issued in late August, dismissed their appeal against the findings of a lower-court. However it has opened the door for the case to be referred to the Maori Land Court to test whether their ancestors enjoyed any customary rights to the river – a course of action that, like the foreshore and seabed case, has the potential to challenge Crown ownership.

I asked this week’s NZCPR Guest Commentator, Judge Anthony Willy, a retired District Court Judge and former University of Canterbury Law Lecturer, to examine the Supreme Court’s ruling and outline its significance for our readers.

Judge Willy explains that the sole function of the Courts is not to dispense wisdom of assistance to society in general, but to decide the dispute which the litigants bring to it. Accordingly, he is extremely critical of the approach taken by the Chief Justice Dame Sian Elias: “She spreads herself widely over the historical and as she sees it, the social background to the claim, and makes pronouncements on a range of matters of fact and law affecting the relationship between Maori and The Crown. It is unthinkable for the Chief Justice to use her juridical views on the relationship between Maori and non Maori to seek to influence The Waitangi Tribunal or Courts in future cases by expressing sweeping views on matters which did not call for a decision on the facts before the Court.”

With regards to the claim itself, Judge Willy explains that there was a complete absence of any reliable factual basis on which the appeal could be decided, and he quotes Justice Young: “the case has an air of artificiality about it because it turns on what long dead former owners of the land in question might have thought about their rights in 1887”.

Judge Willy also highlights important comments made in the judgement about the concept of a Treaty partnership: “The Judgment is however very important in the way it deals with the notion of the Treaty creating a partnership between Maori and the Crown pointing out that the earlier cases are not authority for the creation of a partnership rather that the relationship is one of the utmost good faith and fair dealing. The comparison with a partnership in this context, does no more than illustrate the nature of the relationship between the Crown and Maori created by the Treaty. This view is undoubtedly correct and can be expected to inform the Courts in future dealings between the Crown and Maori.”

Judge Willy, of course, thoroughly investigated the Treaty partnership issue for the NZCPR last year, producing a paper Sovereignty and the Treaty of Waitangi, in which he makes it very clear that there is no legal basis on which the Treaty confers any form of joint sovereignty on Maori.

By issuing their report claiming that iwi did not cede sovereignty to the Crown, the Waitangi Tribunal has clearly revealed its agenda and displayed a lack of independence one would expect from a Crown agency. In light of the findings of the Supreme Court, Judge Willy, and many others, that the Treaty conferred no form of joint sovereignty or partnership on Maori, it’s time that taxpayer funding to the Waitangi Tribunal was stopped. It is disgraceful that the Tribunal would deliver such arrant nonsense in a report, but it becomes unacceptable when it does so with the benefit of taxpayer funding.

*While the beds of navigable rivers are vested in the Crown, under common law, property owners with riparian rights to non-navigable waterways own the beds to the middle of the flow.