Full and Final Settlement Would End Treaty Tensions
Weekly Column by Dr Muriel Newman MP
Sitting inside Waitangi's lower Te Tii Marae on Waitangi Day is a time for reflection. One hundred and sixty two years
ago our forefathers - representatives of the Queen and Maori - entered into an agreement. The Treaty of Waitangi
signalled a new beginning for New Zealand. It enshrined the notion that people from different cultures could live
together and work together in a spirit of harmony and cooperation.
The Treaty is our founding document which established the rule of law in New Zealand.
Article One of the Treaty instituted the British monarch as New Zealand's sovereign power. Article Two introduced
private property rights. Article Three conferred on all citizens the protection of British law.
One hundred and sixty two years on, the Treaty of Waitangi is still recognised as our founding document and Waitangi Day
still remains the day of celebration of the partnerships that exist between cultures.
But Waitangi Day should also be the day to recognise the existence of on-going issues of concern regarding the Treaty,
confronting them in the hope that a national conversation can be the vehicle that will lead us towards resolution.
A fundamental problem with the Treaty is that it is viewed from very different perspectives: many Maori are unhappy,
believing that the Crown has not done enough to uphold the promises of the Treaty, while many non-Maori are unhappy
thinking the Crown has done too much.
At the heart of the problem lies differences in the expectations created by the changes in the interpretations of the
Treaty during its 162 year history. In particular, there have been major changes in the meaning of the Second Article
that have generated significant concerns. The Maori version of the Second Article promised "the unqualified exercise of
their chieftainship over their land, villages and all their possessions", while the English version assured "the chiefs
and tribes and their respective families and individuals thereof the full and undisturbed 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". Forests and fisheries, which were omitted in the Maori
version, were included in the English version as property rights that needed to be defined and protected alongside land
and other possessions. The definition of possessions or 'taonga' was broadened by the courts to include 'treasures',
leading to claims for things such as kiwifruit, flora and fauna, rivers, airwaves, sunlight, language, customs, and
other intangibles. Intangibles in particular, were clearly never intended to be covered by Article Two, since
enforceability is fundamental to British law and there are obvious difficulties in enforcing the protection of such
things as language and customs. The re-writing of history, re-interpreting the Treaty as a partnership between Maori and
the Crown by the Court of Appeal in the eighties, has generated significant concerns. Principally that interpretation is
a clear breach of Article Three, which ensured that all New Zealand citizens should have the same protections under the
law. To insert special privilege in law for one racial group over all others, is essentially enshrining racism.
As a result of these widespread concerns, a number of changes have been suggested including a thorough review of all New
Zealand statutes to remove all references to race as a priority. Doing so would re-instate Article Three of the Treaty -
equality under the law - as a founding principle.
Further, there is an urgent need to return to the fundamentals of Article Two, that property rights - lands and estates,
forests, fisheries and other properties which they may collectively or individually possess - should be protected. Such
property rights should exclude intangibles and other such items that were clearly never intended to be included.
If such claims were filtered out from the over 700 that are presently in front of the Waitangi Tribunal, and if
opportunist claims were prevented from being submitted as new claims, then the whole settlement process would become far
more manageable and less bogged down.
ACT presently has a Private Members' Bill in front of Parliament that would help to significantly fast-track the Treaty
settlement process. It would require that any pending claims be submitted within a year, that the Tribunal be resourced
to assess all claims within five years and that the Crown be required to settle legitimate claims within ten years.
Every Waitangi Day, Treaty settlement tensions are evident. If claims were processed in a timely fashion, those tensions
which disturb most New Zealanders, would largely dissipate. The Treaty of Waitangi is the founding document that gave
New Zealanders equality under a law that enshrines property rights and upholds our rights to freely express our various
beliefs and cultures. With commitment, will and courage we can engage in a national discussion that has resolving the
differences and concerns that divide us as its objective. Then we can realistically look forward to a proud and
harmonious future together.