The 1840 Treaty of Waitangi, New Zealand’s founding document, has long had a certain stature for Lois. Through that Treaty, the British Crown and Māori people agreed on a set of principles for the establishment of the nation state of New Zealand. While the treaty has assumed the aura of a constitutional document, its legal status is a matter of debate. Unlike in Canada, where Aboriginal and treaty rights are recognized and protected under the Constitution, New Zealand has no formal written Constitution and the the Treaty of Waitangi has not been protected by legislation.
Māori differ from many other indigenous peoples in that they have not lived in New Zealand since “time immemorial”, but rather migrated to the islands between the 9th and the 12thC AD. Māori oral history describes the arrival of ancestors from Hawaiki (the mythical homeland in tropical Polynesia). It wasn’t until the 17th and 18th C that Europeans and others arrived, first explorers (Abel Tasman and James Cook), sealers and whalers, later missionaries and settlers. With French designs on the territory and concerns over lawlessness, England responded to requests from settlers and some Māori chiefs to sign a treaty with the Māori, asserting British sovereignty over the islands and guaranteeing Māori property rights and tribal autonomy. Māori signatories of the Treaty of Waitangi were primarily from the North Island – the South Island was claimed by the British through the doctrine of “discovery”, despite the fact that Māori also inhabited the South Island.
In the decades following the signing, conflict arose over significant differences in the English text and the Māori text, resulting in the New Zealand Wars. Most significantly, under the English version, Māori conveyed “sovereignty” to the British Crown (article 1); but in the Māori version, they conveyed “kāwanatanga” (“governorship”), but retained “tino rangatiratanga” (“chieftainship”, a concept somewhat analogous to self-determination) over their lands, villages and taonga (“treasures”). Thus, many Māori believe that they retained sovereignty and gave away only limited rights of government to the Crown.
During the second half of the 19th century, Māori generally lost control of the land they had owned, some through legitimate sale, but often due to unfair land deals or outright seizure in the aftermath of the New Zealand Wars. In the period following the Wars, the New Zealand government mostly ignored the Treaty and a court case judgement in 1877 declared it to be “a simple nullity”.
In 1975, the Waitangi Tribunal was established to consider claims by Māori against the Crown regarding breaches of principles of the Treaty and to make recommendations to government to remove the prejudice and provide recompense. Since 1985, the tribunal has been able to consider Crown acts and omissions dating back to 1840. This has provided Māori with an important means to have their grievances against the actions of past governments investigated. More than 2000 claims have been lodged with the tribunal. By 2010, legislation had been passed for settlements with a total value of about $950 million. Three early settlements – Commercial Fisheries ($170 million), Waikato-Tainui Raupatu ($170 million) and Ngāi Tahu ($170 million) – and the 2008 Central North Island Forests agreement ($161 million) make up the bulk of this amount. Treaty settlements currently cover more than 60% of the total land area of New Zealand. However, Māori have expressed concern that the value of the settlements is grossly out of proportion to the value of what has been taken from them, amounting only to an estimated one to three per cent of the valued of their total loss. Further, the Government will not consider rights over certain resources, including oil and gas, as the basis of redress for breaches.
A 2011 Report of the UN Special Rapporteur on the rights of indigenous peoples, James Anaya, noted the “extreme disadvantage in the social and economic conditions of Māori people in comparison to the rest of New Zealand society”. While theTreaty settlement process has been instrumental in assisting to provide Māori groups with an economic base for their future economic development, numerous obstacles to Māori economic development remain. The unemployment rate for Māori in 2010 was 14 per cent (compared with 6.6 per cent in New Zealand overall),
