Indigenous Rights in New Zealand: Legislation, Litigation, and Protest

While growing up in New Zealand, then attending university there and working as a policy adviser in both environmental and constitutional law, I saw news items and had discussions about Māori rights, activism, and related legal or policy developments fairly regularly.

I have therefore followed with interest media articles and social media discussions about the protest in North Dakota, U.S., regarding the major pipeline project being built there, as well as other protests and court cases related to issues of concern to Native Americans. The pipeline protest has received attention from New Zealand media outlets, and some Māori have been physically involved at the site, as well as offering considerable support from abroad. A Māori lawyer working in South Dakota who has been observing the protest was featured in several news items in New Zealand. Another lawyer also visited the protest site and offered assistance.

Certainly there is a long history of Māori protest in New Zealand, involving people from multiple tribes (iwi) (like Native Americans, Māori are made up of many different groups) and various issues, including land rights and resource protection; rights with respect to culture and language; and more broadly claims related to self-determination and both historical and modern breaches of the 1840 Treaty of Waitangi signed by the British Crown and Māori.

I recall the 79-day occupation of Moutoa Gardens in Whanganui in 1995; the “Sealord deal” fisheries settlement in 1992; protests and debate in the mid-1990s over the so-called “fiscal envelope” through which the government sought to place a cap on compensation to be paid as part of Treaty settlements; annual protests at Waitangi; and protests over legislation developed in response to Māori legal claims related to the foreshore and seabed. I also learned about the land rights hikoi (march) led by then 79-year-old Dame Whina Cooper in 1975 involving more than 5,000 people, and about the 506-day occupation of Bastion Point in 1977-78.

In addition to protests, Māori have sought to have their grievances addressed and rights enforced through the legal system and in the New Zealand Parliament. Below is a (non-exhaustive) timeline of protests, court cases, and legislation related to indigenous rights in New Zealand:

• 1835: The Declaration of Independence was signed by a number of northern chiefs. This document asserted the independence of New Zealand “under the rule of the ‘United Tribes of New Zealand’, which planned to ‘meet in Congress’ at Waitangi each autumn to frame laws.”

• 1840: The Treaty of Waitangi was signed by 40 chiefs at Waitangi, with another 500 Māori throughout the country signing copies of the document during the year. The English text of the Treaty cedes sovereignty to the Queen of England; guarantees Māori “the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess,” with the Crown having the exclusive right of preemption with respect to land purchases; and provides Māori with “all the Rights and Privileges of British Subjects.” There are differences between this text and the Māori text, which has led to controversy and debate.

• 1844-45: Hone Heke, a Māori chief in the northern part of New Zealand, ordered that the British flagstaff in Kororāreka (later called Russell) be cut down in protest over British colonization. In 1845, the first conflict of the New Zealand Wars took place at Kororāreka.

• 1840s-early 1870s: During this period, the “New Zealand Wars” took place, involving various battles between some Māori tribes and government forces. The most sustained and widespread fighting took place during the 1860s. After the wars, “significant areas of Māori land in the North Island were confiscated by the government.” In August 2016, it was announced that a national day to commemorate the wars would be observed from 2017, with the date later set as October 28 – the date of the signing of the Declaration of Independence.

• 1847: In R v Symonds, the Supreme Court recognized the doctrine of aboriginal title as part of New Zealand law and upheld the government’s preemptive right to purchase Māori land. During this period, until 1865, “about two-thirds of the entire land area of New Zealand was ‘bought’ from Māori, using deeds of sale.”

• 1862: The Native Lands Act was passed by the Parliament. It was later replaced by the Native Lands Act 1865. This legislation established the Native Land Court to investigate titles to Māori land, with Māori then able to “convert their land from customary or ‘native’ title to Crown-granted or freehold title.” The legislation “also abolished the doctrine of Crown pre-emption,” meaning that settlers were able to acquire land directly from Māori owners. A large number of laws related to Māori land were enacted over subsequent decades. Under these laws and other actions, “Māori lost land to the Crown and private owners through a wide variety of methods.”

• 1863: The New Zealand Settlements Act, which authorized the government to confiscate land from certain tribes without compensation, was passed.

• 1877: In Wi Parata v The Bishop of Wellington, the chief justice of the Supreme Court declared the Treaty to be “worthless” and a “simple nullity.” He ruled that the courts lacked the ability to consider claims based on aboriginal or native title (thus overturning the 1847 Symonds case) and that there was no such thing as customary law in existence in New Zealand.

• 1881: A Māori settlement at Parihaka in the Taranaki region, “which had become a symbol of protest against the confiscation of Māori land,” was attacked by government troops, with the leaders of the settlement arrested and imprisoned without trial and many of the residents subsequently evicted and their houses destroyed.

  

• 1901: In Nireaha Tamaki v Baker, the Privy Council in London ruled that the courts did have jurisdiction to determine whether the land in dispute had been ceded to the Crown, in contrast to the approach that the New Zealand courts had taken since the Wi Parata case. In response, the government passed the Land Titles Protection Act 1902, which limited the ability of the courts to scrutinize the Crown’s procedure for purchasing land. By the early 20th century, only about two million hectares (about 7,700 square miles) of land remained in Māori ownership (the country is about 27 million hectares, or 104,000 square miles, in size).

• 1934: Waitangi Day was celebrated for the first time, following the gifting of the Treaty House and grounds to the nation by the governor-general in 1932. The day later became a national holiday known as New Zealand Day in 1974, and was renamed as Waitangi Day in 1976.

• 1953: The Maori Affairs Act was enacted. This legislation essentially “forced unproductive Māori land into use” through a trustee system. It also changed the name of the Native Land Court to the Maori Land Court. In 1967, the Maori Affairs Act was amended, introducing the compulsory conversion of Māori freehold land with fewer than five owners to general land, thereby enabling the land to be sold or mortgaged, and increasing “the powers of the Maori Trustee to compulsorily acquire and sell so-called uneconomic interests in Māori land.” Māori considered that the amendments represented a land grab and the legislation resulted in street protests. It is seen as one of the major catalysts for the Māori protest movements that emerged in the late 1960s. This included annual Waitangi Day protests that commenced in the early 1970s and have continued throughout the 2000s.

• 1975: The Land March, calling for an end to the alienation of Māori land, traveled from the far north of the country to Parliament at the bottom of the North Island, 1,000 kilometers (621 miles) away, with many people joining along the way. When the marchers reached Parliament, a 60,000-signature petition was presented to the Prime Minister.

• 1975: Also in 1975, Parliament enacted the Treaty of Waitangi Act, which established the Waitangi Tribunal. Under the original statute, the role of the Tribunal was restricted to hearing claims of contemporary breaches of the Treaty of Waitangi and examining proposed legislation for consistency with the Treaty. In 1985, the jurisdiction of the Tribunal, which is an advisory body only, was extended to include historical grievances dating back to 1840. By 2015, it had “fully or partly reported on 1028 claims” and issued 123 final reports.

• 1977: Bastion Point, near Auckland, had been gradually taken from the Ngāti Whātua tribe through compulsory acquisition for public works. In 1976, the government proposed the sale of part of the reserve for luxury housing. This led to an occupation of the site by members of the tribe, with 222 people eventually evicted by police after 506 days. Later, in 1987, the Waitangi Tribunal found breaches of the Treaty with respect to Ngāti Whātua. The government agreed with the Tribunal’s recommendations and a settlement between the government and Ngāti Whātua with respect to certain land, including Bastion Point, was reached in 1991. A final settlement with the tribe was reached in 2011.

• 1979: A group of Māori students physically confronted Auckland University engineering students who were performing a mock haka, something they had done over a number of years. The protesters were charged with a number of offenses, but did succeed in ending the routine.

• 1982: The first kohanga reo (literally: language nest) preschool was opened, and more than 100 facilities had been opened by the end of 1982. There are now more than 460 throughout the country. The preschools were part of an effort to protect and revive the Māori language. Māori immersion schools (called kura kaupapa Māori) were later established starting in 1985, gaining formal recognition in the Education Act 1989.

  

• 1986: The State-Owned Enterprises Act, which provided for government-owned land and other assets to be transferred to state-owned enterprises, included a provision stating: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” In 1987, in the significant case of New Zealand Maori Council v Attorney-General, the Court of Appeal held that a system must be established to consider whether the transfer of assets would be inconsistent with the principles. Following the case, the legislation was amended to provide that land that had been transferred to a state-owned enterprise could be subject to “resumption” where it was the subject of a Waitangi Tribunal recommendation and in other circumstances. The court decision also identified some of the “principles of the Treaty of Waitangi,” which have been further developed by the courts and the Tribunal. Many statutes now make reference to the principles of the Treaty.

• 1987: The Maori Language Act made Māori an official language of New Zealand and established the Māori Language Commission.

• 1988: The Treaty of Waitangi Policy Unit within the Department of Justice was established to assist with Treaty settlement negotiations between the government and Māori tribes. The unit subsequently became the Office of Treaty Settlements in 1995. Significant early settlements included the “Sealord deal” in 1992, which was the “full and final settlement of all Māori commercial fishing claims” and covered all Māori tribes. In the mid-1990s, the government also reached agreements with the large tribes of Waikato-Tainui and Ngāi Tahu. The Deeds of Settlement included compensation valued at NZ$170 million for each tribe, as well as apologies and the recognition of certain rights to resources. Many more settlements have subsequently been agreed between various tribes and the government.

• 1993: The Māori Land Act (Te Ture Whenua Māori Act) reformed the laws related to Māori land, replacing the Maori Affairs Act 1953. Under the Act, the Māori Land Court has jurisdiction to consider claims relating to the status and ownership of Māori land, with the legislation emphasizing the retention of Māori land for the benefit of its owners and their descendants. A bill to amend the legislation is currently before Parliament.

• 1994: The government’s proposal to limit all future settlements of historical Treaty claims to a total cap of NZ$1 billion, known as the “fiscal envelope,” resulted in protests. It was subsequently abandoned.

• 1995: Whanganui Māori occupied Moutoa Gardens, which they claimed was on or near an area set aside from the purchase of the Whanganui town area. In 2007, a deed of settlement was signed between Whanganui tribes and the government for the return of part of the land. In 2014, a significant settlement was signed in relation to the Whanganui River, “which will become its own legal entity under the settlement.” The bill giving effect to the settlement is currently before Parliament.

• 2003: The passage of the Māori Television Service Act led to the launch of the government-funded Māori Television channel in 2004, which provides programming in English and Māori. A second channel, Te Reo, which has programming only in Māori, was launched in 2008.

• 

  

  2004: A 2003 landmark decision of the Court of Appeal in Ngati Apa v Attorney-General, in which it held that the Māori Land Court had jurisdiction to determine whether or not areas of the  foreshore and seabed have the status of Māori customary land, led to the passage of the Foreshore and Seabed Act 2004. This legislation overrode the Court of Appeal decision by stating that the Crown is the owner of the foreshore and seabed. The legislation further provided that the public had the right of access, customary activities practiced since 1840 were protected, and those who have owned land next to the foreshore and used parts of the foreshore and seabed since 1840 could claim territorial customary rights and apply for redress. The Act generated considerable protest, including a march from Northland to Parliament. The Act was also the catalyst for the formation of the Māori Party, which has consistently won seats in Parliament in subsequent elections.

• 2011: The 2004 Foreshore and Seabed Act was repealed by the Marine and Coastal Area (Takutai Moana) Act 2011, which followed a review of the original Act established under an agreement between the governing National Party and the Māori Party. The 2011 Act replaced Crown ownership with a “no ownership” principle, and restored the right of Māori to seek customary rights and title through the courts or through negotiation with the government. Some Māori were disappointed with the new legislation, which led to further protests.

The Library of Congress holds many resources containing information related to the Treaty of Waitangi, Māori rights, protests, and related legal developments, including:

• Facsimiles of the Declaration of Independence and the Treaty of Waitangi (1877).
  
• John A. Williams, Politics of the New Zealand Maori; Protest and Cooperation, 1891-1909 (1969).
  
• Department of Maori Affairs, Summary of the Law Applying to Maori Incorporations under Part IV of the Maori Affairs Amendment Act 1967.
• Maori and Island Affairs Department, Succession to Maori Land (1971).
• Department of Maori Affairs, Tai Whati: Judicial Decisions Affecting Maoris and Maori Land, 1958-1983 (1984).
• Claudia Orange, The Treaty of Waitangi (1987).
• Sovereignty & Indigenous Rights: The Treaty of Waitangi in International Contexts (William Renwick ed., 1991).
  
• Ministry of Maori Development, A Framework for Negotiation = Toitu te Whenua: Proposals for a Solution to Maori Reserved Land Issues (1993).

• 

  Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims (1995).

• Wira Gardiner, Return to Sender: What Really Happened at the Fiscal Envelope Hui (1996).
• Douglas Graham, Trick or Treaty? (1996).
• Tom Bennion, The Maori Land Court and Land Boards, 1909 to 1952 (Waitangi Tribunal, 1997).
• Richard Boast, The Foreshore (Waitangi Tribunal, 1996).
• Recognising the Rights of Indigenous Peoples (Alison Quentin-Baxter ed., 1998).
  
• David V. Williams, “Te Kooti Tango Whenua“: The Native Land Court 1864-1909 (1999).
• Paul Jones, The Sealord Deal (1999).
• I.H. Kawharu, Treaty, Tribes and Governance in New Zealand (2003).
• Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy (2004).
• Aroha Harris, Hikoi: Forty Years of Māori Protest (2004).
  
• Grant Young et al., Native and Māori Land Legislation in the Superior Courts, 1840-1980 (2005).
• F.M. (Jock) Brookfield, Waitangi and Indigenous Rights: Revolution, Law, and Legitimation (updated ed., 2006).
• Anthony Patete, Māori Political Activism and the Quest for Rangatiratanga in the 1970s and 1980s: A Māori Perspective (2007).
• Māori Property Rights and the Foreshore and Seabed: The Last Frontier (Clare Charters & Andrew Erueti eds., 2007).
  
• Matthew S.R. Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (2008).
• David V. Williams, A Simple Nullity?: The Wi Parata Case in New Zealand Law and History (2011).
• Treaty of Waitangi Settlements (Nicola R. Wheen & Janine Hayward eds., 2012).
• Richard Boast, The Native Land Court 1862-1887: A Historical Study, Cases, and Commentary (2013).
• Stella Coram, Extinguishing Title: Māori and Rights, People, and Perspective in Post-Colonial New Zealand (2013).
• Tipene O’Regan, New Myths and Old Politics: The Waitangi Tribunal and the Challenge of Tradition (2014).
• Carwyn Jones, New Treaty, New Tradition: Reconciling New Zealand and Māori Law (2016).