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by Laura Beacroft
In recent weeks discussion has been revived on the topic of negotiating a Treaty or "compact" between Aboriginal Australia and Australia. A treaty was negotiated between the Maori and the British in New Zealand - The Treaty of Waitangi, 1840. For over a century the courts gave it little, if any, legal significance. In 1975 Parliament gave the Treaty a new lease of life when it established the Waitangi Tribunal and other NZ statutes have given the Treaty some legal recognition. The proposal for a Bill of Rights includes incorporation of the Treaty.
In this article, Laura Beacroft notes some of the more important cases that have come before the Waitangi Tribunal. Given the effectiveness of the Tribunal in protecting Maori cultural interests, perhaps the establishment of an Aboriginal body with similar powers should be considered.
The Treaty of Waitangi Act 1975 set up the Waitangi Tribunal. The Tribunal offers a unique forum for hearing complaints from Maoris about government legislation, practices or policies that are inconsistent with the 'principles' of the Treaty of Waitangi (1840) (s.60). Procedural freedom, coupled with broad powers of a Commission of Enquiry, have allowed it to develop an inquisitorial style, in ways sensitive to Maori culture.
The Tribunal is empowered to make recommendations to govemment (s.6(3)), and has to date made some far-reaching recommendations, about legislation and government polices that ignore Maori interests. especially in the area of planning and land use management. Some of the Tribunal's most significant findings are reported below.
(Application by Aila Taylor for and on behalf of Te Atiawa Tribe)
WAI 6; 17 March 1983
(The Motumui Claim)
Aila Taylor and his tribe argued that they were being 'prejudicially affected' by the discharge of sewage and industrial waste into traditional fishingg rounds and that the resulting pollution was inconsistent with the principles of the Waitangi Treaty.
The Waitangi Tribunal accepted their argument The Tribunal agreed that the Te Atiawa fishing grounds are collectively one of the most extensive fishing reefs of the Maori people, and that they have cultural and spiritual significance as well as being a major source of food.
The Waitara sewage outfall was shown to be in a damaged state and releasing polluting wastes in excess of the Waitara Borough's water right plans by new petrochemical industries in the area to add their wastes to the Waitara outfall, and in one case to build a new outfall, would only add to the pollution problem. Although one of these petrochemical companies. Synthetic Fuels, had gained court approval for a water right[1] the Tribunal regarded the especially stringent conditions attached to this right by the court as evidence 'of judicial awareness of the uncertainties about risks to seafood from industrial disposal. The NZ Environment Commission[2] confirmed that more research was needed on the marine discharge of chemical waste.
In any case the Tribunal said Maori approaches to conservation and management, in particular their higher standards for clean water, should not be secondary to scientific evidence.[3] The Tribunal concluded that Maori people have a right under the Treaty to participation in management of the fishing reefs.
The Tribunal recommended urgent upgrading of the Waitara outfall and suspension of other plans until more detailed research and discussion of waste disposal options had occurred.
In addition, the Tribunal reccommended making clear provision, in the Maori Affairs Act, 1953 for significant fishing grounds to be reserved by application to the Maori Land Court. The Tribunal highlighted the present limits of this Act due to technical restrictions on fishing grounds that come within its ambit.[4]
Postscript
After considerable public discussion the NZ government announced that it would act on all of the 'Tribunal's recommendations. A Task Force, set up to consider waste disposal arrangements, has released an Interim report but has made no firm recommendations beyond the Tribunal's interim plan for the Waitara Borough outfall to take all wastes. The Research Officer at the Waitangi Tribunal recently told AboriginalLB that there has been some progress on legislative recognition of Maori fishing rights - most notably an amendment to Fisheries Act 1983, s.88(2) to guarantee 'nothing in this Act shall affect any Maori fishing rights'.
(in the Matter of a Claim by Sir Charles Bennett and Ors)
WAI 4, 30 November 1984.
The Tribunal was asked to consider whether building a proposed sewage pipeline from Rotorua Waste Water Treatment Plant to Kaituna River would be contrary to the 'principles' of the Waitangi Treaty. The Tribunal agreed that it would be and recommended abandoning the proposal.
In arriving at this conclusion the Tribunal accepted as relevant, evidence on legal obligations of the Crown under the Treaty, and in particular evidence on Crown obligations under Article II which guarantees full, exclusive and undisturbed possession of all customary lands b those entitled by Maori custom.[5] The tribunal noted criticisms of early cases which conclude that Treaty obligations are not enforceable in municipal law. One view put to the Tribunal was that this unsympathetic case law was restricted to land rights claims and that early colonial recognition of other Maori rights under the Treaty. Including fishing rights, still apply.
However the Tribunal chose not to make a legal finding on this matter, "since it may attract judicial consideration by the High Court. Court of Appeal or Privy Council in the future". More importantly it said it was not limited by the doubtful legal status of Maori rights under the Treaty. The Tribunal said it is required to focus on the 'principles' of the Treaty, which require looking to the 'spirit' of the Treaty.
The Tribunal then went on to consider the policy behind the Kaituna River Pipeline. The pipeline was part of a scheme proposed 20 years previously by the Minister of Works and development its purpose was to pump raw sewage from take Rotorua. where water quality was rapidly deteriorating, to Kaituna River 20 kilometres away. A recent modifcation involved piping farm runoff into the Kaituna River.
The Tribunal had little difficulty in concluding that the proposal conflicted with Maori cultural and spiritual values which prohibit the mixing of waters carrying human waste and those providing food. Although the claimants - Ngati Pikiao tribe - recognised they were already affected by Mixed waters, the Tribunal accepted their view that the crucial matter was that they could not condone mixing of waters over land and sea under their traditional control. In addition to recommending the proposed pipeline be abandoned, the Tribunal recommended amending the Water and Soil Conservation Act 1967 to ensure planning bodies consider Maori clean water regimes in the future.
The Tribunal is statutorily required to give consideration to the 'practicalities' of recognising treaty obligations. The Tribunal accepted the NZ Environment Commission's view that the pipeline was impractical. because it was 'out of date, and needlessly expensive'. The Ministry of Public Works, through its control of local government subsidies, had encouraged local support for the proposal. However it emerged that local government bodies such as the Rotorua District Council favoured cheaper alternatives. for instance biological waste treatment works.
In addition to recommending the abandonment of the pipeline, the Tribunal therefore recommended that more research be undertaken into the possibility of better disposal. through treatment works such as those being investigated by Council.
Postscript
The NZ government very recently announced substantial funding for research into land-based disposal of wastes. thus promising technology in the future that will be more accommodating of Maori interest in clean waters. Of interest to Melbourne readers, one of the better known models for land-based disposal is that in your hometown!
Resolution of the dubious legal status of the Treaty will occur if NZ's proposed Bill of Rights is enacted. Article 4 recognises the Treaty as follows:
"(i) The rights of the Maori people under the Treaty are hereby recognised and affirmed, and
(ii) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent."
(In the Matter of a claim by Nganeko Minhinnick and Te Puaha ki Manuka)
WAI 8; 19 July 1985
The Tribunal heard a host of complaints from the tribal owners of Manukau Harbour ranging from land stealing, dating back to the 1860s to planning decisions that disregarded tribal interests. especially their interests in fishing grounds. The tribunal was, at the time, restricted to claims arising from events after 1975[6] however it pointed out that the NZ government is not so constrained and urged it to 'provide a measure of relief to dispossessed tribal owners.[7]
The Tribunal confined its enquiry to the Manukau Harbour Board and Auckland Regional Authority to guide their decisions until a Regional Plan for the harbour was developed. It was not a legally binding instrument but a statement of planning policy. The Tribunal concluded that it did not give sufficient weight to Maori heritage and fishing interests. Also the plan was not sufficiently detailed or co-ordinated to ensure the harbour would be 'cleaned up'. Thus Maori interests in clean waters were not protected and the 'national'. interest was not being met.[8]
The Tribunal recommended that an action plan be devised, under the guidance of the NZ Environment Commission. A committee of Maori Guardians, made up of tribal owners, would advise the relevant Minister on development of the plan. Also, the Boards of those government bodies involved in the development of the plan would have Maori representatives, with easy access to research staff.
A more general complaint made by tribal owners was that their fishing rights were not recognised by NZ law. The Tribunal said ownership of the harbour was not the main obstacle to recognition, although it concluded that the Crown should regain ownership of the harbour from its various authorities in order to 'nationalise' control.[9]
The crucial issue according to the Tribunal is one stressed in previous findings-legislative provision for recognition of Maori interests in fishing grounds. Although several relevant Acts contain provisions protecting treaty rights.[10] The courts to date have not recognised treaty rights as part of municipal law. Early legislation allowed for reservation of oyster and fishing beds, however only one oyster reserve remains and no fishing reserves were created. A regulation of the Fisheries Act 1983[11], allows for conferral of special fishing rights on specified communities but has not to date been used in the Maori context. Until broad legislative review occurs, the Tribunal recommended using their power to reserve two named significant fishing grounds for Maori use.
Postscript
The NZ government directed government bodies to implement the Tribunal's recommendations, where possible. The Research Officer at the Tribunal recently told the AboriginalLB that the reservation of significant fishing grounds is presently being negotiated. There is also hope that legislative recognition of Maori fishing interests will occur soon. (See also postscript to Motumui Claim).
WA 11 29 April 1986.
The Wellington Board of Maori language (the Board) claimed the NZ government had failed to protect Maori language ('te reo Maori'). and had thus breached their obligations under the Treaty of Waitangi. The Board asked the Tribunal to recommend that 'te reo Maori' be recognised an official language of NZ.
The Tribunal accepted the claimant's argument that Article ll of the Treaty' guarantees protection of Maori language. It attributed a contrary finding by the NZ Court of Appeal (in Mihaka v Police [1980] 1 NZLR 453) to absence of argument in that case over the meaning of the Treaty, and in particular the relevance of the more broadly worded Maori version.
The Tribunal emphasised that it is statutorily required to have regard to both versions of the Treaty, and to decide issues raised by the differences. The Tribunal accepted the Maori version. and referred to the rule in The Queen v Taylor & Williams (1980 62 CCC (2nd) 227):
if there is any ambiguity in the words ... used ... the words should be interpreted as against the drafters of such treaties .... [and] language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible.[12]
Having thus determined that Article 11 refers to all valued customs and possessions 'of Maori people' including language, the Tribunal then considered the obligations imposed on the NZ government by its promise to 'guarantee' these. The Tribunal accepted the interpretation put by the International Commission of Jurists (NZ) that 'guarantees' Imports a heavy obligation. It requires the NZ government to take active steps to ensure Maori people have and retain their language. Although the Maori Affairs Act (s.77A (1) & (2)) officially recognises Maori language and allows the Minister to take steps to encourage its use and acquisition, the Tribunal said this section had been ineffectual and did not meet the government's obligation.
The claimants argued they had suffered prejudice in the following areas, as a result of the NZ government's failure to meet Its obligations to protect language: education, justice, broadcasting and health.'
The Tribunal focused on education and Justice. It agreed that despite recent education policies sympathetic to the. teaching of Maori culture and language, very little had been achieved in practice very few Maori school children speak Maori (5% in 1975), and their cultural background is still a disadvantage in the pakeha-run education system. Although some communities had initiated infants schools that were conducted in Maori, the Tribunal said much more was to be expected from the NZ government. The Tribunal therefore recommended an enquiry by the Minister of Education into teaching Maori language and culture in all schools.
The Tribunal accepted that the present law in NZ was that 'te reo Maori' cannot be used in NZ courts (Mihaka v Police). It agreed with the International Commission of Jurists (NZ) and the NZ Justice Department that fundamental individual rights, as well as Maori rights under the Treaty, were being denied. The Tribunal accepted the justice Department's recommendation that legislation similar to the Welsh Language Act 1967 be enacted to at least give the right to address the Court and to give evidence in Maori. The Tribunal recommended broadening this right to cover communications in Maori with local authorities and government departments.
The Tribunal very briefly considered policies and practices in broadcasting and health that predudically affect Maori rights to language. It recognised that policies were Improving in these areas, as in education and justice, but that practice was lagging far behind. The Tribunal's major recommendation was that a Maori Language Board be urgently set up by the NZ government to take appropriate action to foster better policies and practices and to develop proper standards for the teaching and use of 'te reo Maori'.
Postscript
In 1987 the Maori Language Act was passed. "The Act declares the Maori Language to be a 'taonga' or treasured possession under the Treaty and to be an official language in NZ". The major consequence of this Act is that Maori language is now able to be used in Courts and tribunal hearings. "with the onus on the hearing authority to provide an interpreter".[13]
[1] Re an Application by NZ Synthetic Fuels Carp (1982) 8 NWT 138. upheld by the Court of Appeal.
[2] The Environment commission oversees procedures and audits environment impact reports on projects having a significant degree of Impact on the environment It acts In an advisory capacity to government bodies.
[3] p.34
[4] p.15.
[5] The English verslon of Article 11 differs in important respects from the Maori version. See S E Kenderdine "Statutory Separations' NZLG August 1985.249.
[6] In 1985 jurisdiction of Treaty of Waitangi was extended to all enactments passed after 6 February 1840 and all actions of the Crown after that date which appear to be contrary to Treaty of Waitangi.
[7] .7. p.9.
[8] p.j.105.
[9] p.104.
[10] For instance The Town & Country Planning Act 1977, s.3111(9) obliges planning bodies to consider "the relationship of the Maori people and their culture and traditions with their ancestral land". Until recently this section has been read narrowly and only obliged planners to consider Maori interests if affected land was owned by Maori people. However a recent case (Royal Forest & Bird Protection Society Inc v W A Habgood (1987)12 NZTPA 76). has accepted the Waitangi Tribunal's view that Maori objections are admlssable even if Maori ownership is absent. See also Herakina Development Trust v Waikato Valley Authority (HC, 2 June, 19871.
[11] Reg 7. Fishing (Amateurs Fishing) Regulations 1983.
[12] p31.
[13] p.4 "Planning & Maori Rights in 1987". Dr K A Palmer. Auckland. Unpublished paper delivered at AULSA Conference August. 1987.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1987/47.html