Waitangi Tribunal

When Winston Peters took office as Minister, the Department of Maori Affairs had just been abolished, on 1 September 1989.

Ministries in flux

Maori at large had opposed the abolition which removed 1100 people with years of collective experience from their mediating roles between government and Maori, to say nothing of the $264 million of Vote: Maori, which, according to some observers, was probably siphoned off for Treaty Settlements.

Te Wheoro Road, Rangiriri. Wiremu Te Wheoro was a noted Kingitanga rangatira during the 1870s-1880s.

However, the ‘writing on the wall’ for the Department had been evident since Prime Minister David Lange’s infamous comment of 1987 that the government needed to ‘break up the Department’ before it broke itself up. Lange’s flippant comment had nonetheless signalled a deeper truth; that the Department had failed to steer clear of politics, factional interests and outright scandal.

In the wake of abolition, two transition agencies were created to manage Maori interests across a policy vacuum, beating off imperial overtures from mainstream social departments, whilst the government deliberated as to its next institutional move, where providing government services for Maori was concerned.

However, the Labour government, now led by Michael Moore, effectively ran out of time. Years of deregulation, privatisation and rising costs had taken their toll amongst Labour supporters. The general election of 27 October 1990 removed Moore’s Government from office and replaced it with a National Party administration led by phlegmatic King Country farmer Jim Bolger. This election represented a substantial defeat for the government that had welcomed in New Zealand’s defining year, 1990.

The Beehive, Wellington, where NZs government is housed.

A 13% swing away from Labour was translated into a loss of twenty seven seats. With only twenty nine seats in Parliament, Moore had run a distant second to new Prime Minister Bolger who could now count on sixty seven colleagues in the House, including Winston Peters.

Two years later, on 1 January 1992, a new Ministry of Maori Development was established. This was a name once strongly opposed by Crown officials like Hekia Parata for its ‘third-world’ connotations. The new super ministry replaced the old Maori Affairs super ministry; and the two interim Maori agencies which had existed since September 1989 were now to be merged into the new Ministry.

These changes had been earlier put to Maori in the report Ka Awatea which in truth few Maori would have read. Soon afterwards, however, its reforms were imperilled when the Minister of Maori Affairs Peters managed to get himself sacked by Prime Minister Bolger.

Waitangi Tribunal

Departmental reforms such as these, especially the removal of Maori Affairs in 1989, suggested that in 1990 there was still a substantial disconnect between the Treaty rhetoric of the government and the realities of devising Treaty public policy for Maori. The problem was one of restrictive Crown Treaty policy, which at the time served to hamstring the Waitangi Tribunal which had been established in 1985.

another one of the awesome Kyle Lockwood flags, suggested as an alternative to our current colonial relic.

In 1986, the Maori Council had taken the Crown to Court, insisting that the Crown honour its commitment to the principles of the Treaty, as detailed in section 9 of the State Owned Enterprises Act 1986.

This section had stipulated that the Crown was not permitted ‘to act in a manner that (was) inconsistent with the principles of the Treaty of Waitangi.’ However, forestry and mining cases had arisen whereby the Crown was seen to be ignoring its obligations to adhere to the Treaty ‘principles.’

The first attempt to define what these elusive principles were was made by Sir Robin Cooke in a subsequent Court of Appeal Judgment. However, by 1989, in the light of Cooke’s judgment, the government had realised that it could no longer make ‘open promises’ to Maori about ‘honouring the Treaty’, something it had done somewhat recklessly since the 1970s. Maori expectations had risen. Perhaps, at last, thought Maori, the Crown would now address Treaty issues like political autonomy.

Enter the Crown principles

By 1989 however the Crown had realised that it was necessary to apply the brakes until such time as it could determine for itself what ‘honouring the Treaty’ really meant in practical terms. Accordingly, a committee of officials was appointed to pore over the problem; and in time a new document was produced, entitled Principles for Crown Action on the Treaty of Waitangi.

Statue of Te Keepa Te Rangihiwinui at Moutoa Gardens, Whanganui. Behind is the old Native Land Court Building, one of the last still standing in NZ.

Much to the disappointment of Maori, these Crown Principles placed severe restrictions upon the policy issues it was willing to negotiate, much less to honour. For example, under Principle One, the Crown refused to entertain negotiations from Maori on the issue of political autonomy, surely the issue at the heart of the Treaty.

Maori were outraged. So were legal scholars like Jane Kelsey who accused Prime Minister David Lange of manipulating the Treaty’s meanings. The ‘Crown Principles’, she said, were a ‘definite and cynical attempt to redefine the Treaty’, a claim that Lange not surprisingly denied.

Yet, in stating what the Treaty really meant for the Crown, the ‘Crown Principles’ were also stating what the Treaty must mean for Maori; effectively, this constituted a ‘rewriting of the Treaty’. As Kelsey argued, it was difficult to conclude anything else, ‘given the Crown’s ultimate power to determine what the Treaty would, and would not, mean in practice.’

Crown rulings like the 1989 Principles for Crown Action on the Treaty of Waitangi placed the Waitangi Tribunal in an invidious position. When first established in 1975, in order to investigate claims from Maori of past Crown misdeeds, the full implications of honouring the Treaty in policy terms had not been properly thought through. This was still the case in 1985 when its powers of enquiry were backdated to 1840.

The Beehive, Wellington.

As a consequence of this backdating, the ‘flood gates’ had unexpectedly opened as Maori, with expectations rising, began filing claims at a higher rate than had been anticipated when the backdating decision was taken.

By 1990, the number of claims was therefore rising significantly as Maori increasingly turned to the Tribunal to litigate issues of land and resource ownership, given that the Crown Principles had rendered direct negotiations with government as untenable.

By 1993, 376 claims had been filed with the Tribunal, comprising mainly historical claims, with a total of 42 reports completed. By that year, the tribunal was also able to report that 116 recommendations had been made in their reports, with 45 of these fully implemented, 13 partly or wholly embedded in legislation with a further 27 partly implemented and under further consideration.