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

 Māori Land March - October 13, 1975, Parliament, Wellington (Source: Archives New Zealand Flickr account).


Māori Land March – October 13, 1975, Parliament, Wellington (Source: Archives New Zealand Flickr account, used under Creative Commons License 2.0, https://creativecommons.org/licenses/by-sa/2.0/).

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 dealfisheries 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.

Waitangi Sheet, Te Tiriti o Waitangi (The Treaty of Waitangi) (Photo from the Archives New Zealand Flickr account, used under Creative Commons License 2.0, https://creativecommons.org/licenses/by-sa/2.0/).

Waitangi Sheet, Te Tiriti o Waitangi (The Treaty of Waitangi) (Photo from the Archives New Zealand Flickr account, used under Creative Commons License 2.0, https://creativecommons.org/licenses/by-sa/2.0/).

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.”
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • Treaty1Treaty22004: 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:Treaty3

 

6 Comments

  1. Tracey
    November 20, 2016 at 6:11 pm

    Thank you Kelly for all the excellent research included in your blog post.

    For those keen to find out more about Maori support of the Standing Rock protest there is a recent 18 minute news item at this link
    https://www.tvnz.co.nz/one-news/world/if-maori-want-come-here-theres-place-them-standing-rock-leaders-words-welcome-nz-visitors

  2. William
    January 25, 2018 at 8:58 pm

    Great article. I was wondering, do the Maori people of New Zealand typically maintain ownership over local resources, or does any investment go through the state apparatus?

  3. Kelly Buchanan
    January 26, 2018 at 9:36 am

    As part of the settlement process, Maori tribes establish governance structures (post-settlement governance entities) for the management of settlement redress and assets. For example, Waikato-Tainui has a lands trust that is also the only shareholder of a holdings company, which makes various investments. Other tribes have different structures/governance arrangements.

  4. michelle oloughlin
    April 9, 2018 at 6:02 am

    The Declaration of Independence of the United Chiefs of NZ was the recognition of NZ as a Sovereign nation State ruled independently. Britain also declared to protect NZ’s Sovereign right to rule by force if necessary of any nation trying to take over.

    The Declaration is of course recognition of Sovereignty because Treaties can only be signed by Sovereign Nations, (oops on American for stupidly signing with those they call indigenous) meaning that any grievances should be solved in the International Court of Treaties in Geneva.

    The Law of Treaties is quite clear. Firstly, all Sovereign Owners must sign it. There were 52 signatories on the Declaration on 1840. At least 8 didn’t sign the Treaty, including, wow you’d think a bunch of lawyers would have guessed it, Te Whero Whero the first Waikato Maori King.

    Pity that people can study law right up to Harvard and still not realise that they’ve been accomplices in the biggest Puppet State rule ever. Maori are not ‘indigenous’ in need of r recognition. NZ is occupied and in need of LIBERATION

  5. Rosaria Hotere
    May 26, 2019 at 8:09 am

    Your welcome

  6. Macushla Rielly
    October 7, 2019 at 6:31 pm

    Well said michelle oloughlin.

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