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by Jane Kelsey
The 1970s was a time of increasing public focus on the Treaty of Waitangi - prompted by such events as the 1975 Land March, the occupations of Bastion Point and Raglan, and the protests at the annual Waitangi Day "celebrations". Although dismissed as the works of a minority of radicals, these events had a significant impact on awareness of the Treaty amongst the Pakeha politicians and public, and on Maori confidence in re-asserting Treaty-based claims. By the early 1980s, boosted somewhat by the bandwagon effect of the 1981 Springbok tour protest, the February Treaty "celebrations' had become the focus of protest and a political nightmare for the government. In 1983 the Waitangi Tribunal presented its first major report, finding government's proposals for a sewerage outfall in Taranaki violated the Treaty, bolstering Maori demands for government action. By January 1984 the Treaty was threatening to become a major locus of conflict. Deputy Leader of the Labour Opposition, Geoffrey Palmer, took pre-emptive action and announced a radical new Treaty policy to tackle the Treaty.
When the Labour Government came to power in 1984 it was therefore already committed to a firm policy on the Treaty of Waitangi. It would extend the Waitangi Tribunal's power to investigate alleged breaches of the "principles of the Treaty", and recommended redress, from the then cut-off point of 1975 back to 1840. The Treaty would be incorporated in a Bill of Rights White Paper. The Waitangi Day ceremony would be revised after consultation with Maori and other. By late 1985 Government had done all three. By 1986 over 60 claims had flooded in to the Waitangi Tribunal seeking the return of land, forests, fisheries, minerals, sands and waterways covering most of the country.
Government found it difficult to understand why Maori remained critical of its efforts and continued to challenge the political and economic foundations of the country. The essence of the conflict lay in the Treaty itself. The Government relied primarily on the English text of the Treaty which ceded sovereignty to the British and guaranteed Maori continued undisturbed possession of lands, fisheries, forests and other properties. The Maori position, however, is sourced in the Maori text, which is the one they signed. It provides for the British Queen to exercise her extensive worldly power through her governor (kawanatanga) to impose "law and order" on her people and secure to Maori their rights to continued authority and control (tino rangatiratanga) over their lands, villages and all treasured things, tangible and intangible. Under the Maori text, as the Waitangi Tribunal was to observe in its pre1987 reports, what the Crown gained was less than the British concept of absolute sovereignty or the right to impose British common law. What Maori retained was their full chieftainship, authority or "the sovereignty of their lands". International treaty law and British common law's own "contra proferentum" rule both support the primacy of the Maori text.
It seems unlikely that Palmer and the Labour Party believed their Treaty policy would involve much more than the settlement of some prominent land grievances. They found instead that they had unwittingly opened the way for a fundamental challenge to the legitimacy of Pakeha political and legal sovereignty, and control of key economic resources.
Meanwhile, the newly elected Labour Party was also embarking on one of the world's most radical experiments in monetarist economic theory. The first eighteen months of Labour's rule from July 1984 was a period of rapid change focussed on deregulation of the finance sector. By early 1986 the emphasis moved to restructuring state trading and service functions and their regulatory environment - in particular state commercial exploitation of land, forest, minerals, waterways, geothermal, and fishing.
Labour's economic and Treaty policies were on a direct collision course. The sequence of events since 1986 shows a gradual awareness by the Government and officials of the implications of the Treaty policy. It also exposes a period of manoeuvres, initially ad hoc and later more systematic, devised to rescue government from the political and economic crisis it had provoked. Most prominent have been the battles over the sale of state assets and the privatisation of the fisheries.
An integral part of government's economic policy involved converting its major trading operations into profit-making businesses run by private sector Boards of Directors with government as the sole shareholder. The State Owned Enterprises (SOEs) would pay the government a market price for the companies' assets - land, forests, dams, coal mines, geothermal, power stations, telecommunications networks, post offices, banks - plus company tax, annual government-determined dividends and market rates of interest on government loans. This, with the sale of Petroleum Corporation and New Zealand Steel, would fund the government's first budget surplus in 1987/8.
Few amongst the public understood "corporatisation". It was not until the State Owned Enterprises Bill was almost through Parliament in December 1986 that Maori, via the Waitangi Tribunal, challenged the government's planned transfer ownership of disputed assets to the corporations. This, the Tribunal argued, would make it impossible for government to implement Tribunal recommendations to return land or resources to their rightful owners. Government responded by inserting two new clauses into the Bill at the last minute. The new section 9 required Ministers not to act inconsistently with the "principles of the Treaty" and section 27 retained government control over assets claimed before 18 December 1986. Maori unsuccessfully sought further safeguards from the government.
On 31 March 1987 the New Zealand Maori Council (NZMC) sought and obtained an interim court order preventing transfer of the assets pending the full hearing in May. The resulting Court of Appeal's decision that government must negotiate with Maori to develop adequate safeguards was described by Cooke P. as a "victory" for Maori. Attorney-General Palmer, contrary to his earlier outrage at the case, hailed it as a "landmark decision". So did many Maori - and it was to the extent that their claim had not been dismissed. However, that early Maori euphoria has proved unjustified.
In many ways the court's reasoning has proved more important than the actual orders it made. Faced with the need to apply the Treaty it sought refuge in the wording of section 9, the "principles" of the Treaty. This, the court said, was different from the Treaty itself so there was no need to address the conflict between the texts. The Waitangi Tribunal's interpretation of the "principles", which had questioned the legitimacy of British sovereignty and British law, was an inferior jurisdiction which could be helpful but not binding on the court. The court's version of the Treaty was remarkably different.
There was a partnership in the Treaty, which involved reciprocal obligations of reasonableness and good faith. But the duty on each was different. The Crown enjoys the ultimate right to make laws and economic policies. However, it must provide an avenue for redress of past grievances such as the Waitangi Tribunal. And it must make informed decisions on the impact of its policies on Maori Treaty rights. If government feels it has inadequate information it should consult Maori, but need not act on the advice given. The duty on Maori is to be loyal to the Queen, recognise her government and Ministers and be co-operative. Hence, in the guise of the "principles" of the Treaty the Court resolved the conflict between the texts in favour of the English. This version of the Crown and Maori obligations has provided the basis for all government's subsequent dealings with the Treaty. It has also been imposed on the Waitangi Tribunal, which in each report since the SOE decision has affirmed a cession of full sovereignty to the British.
The Treaty of Waitangi (State Enterprises) Act 1987 which resulted from the lengthy Crown/NZMC negotiations did not actually return anything to Maori. Memorials would be placed on the titles of land passed to SOEs noting their liability for resumption if the Waitangi Tribunal ordered the land returned to Maori claimants. The Tribunal thus gained the power to make final decisions over SOE land and was promised more members and resources. However, SOEs or subsequent purchasers could apply to the Tribunal for removal of the memorials.
The Tribunal, already by then facing a backlog of around 160 claims and clearing less than four a year, was threatened with a deluge of SOE claims - the Post Office alone indicated it wanted 800 titles cleared. There was no immediate problem so long as the SOEs were in no hurry to sell their assets, or were prepared to risk lower valuations, and while Government had no plan to privatise the enterprises themselves.
Then, in the June 1988 Budget, Labour announced a comprehensive programme of privatisation. $20 billion would be raised by 1922. The sale list included Government Property Services, the Coal Corporation, the forests managed by Forestry Corporation, the financial assets and pastoral leases of the Land Corporation, the Bank of New Zealand and Postbank. Only in regard to Forestcorp did Douglas acknowledge a potential conflict with the Treaty, and merely indicated a way would be found to sell the asset without breaching government's obligations.
Government set up a State Owned Enterprises Committee on Maori Land Claims to co-ordinate their responses to Treaty claims while the Treasury and its advisors worked on ways to circumvent the memorials on the title without affecting the asset price. Some solutions were straightforward. Forestcorp and the government had never agreed an asset price, so the Crown had never transferred the assets to it. Those land titles were therefore not subject to the caveats. So Government said it would sell the forests direct, using Forestcorp only as its agent. Further, it would sell off two generations of cutting rights rather than the land itself. Although Maori would effectively lose access to the forestry resource for around 70 years, government claimed it had complied with its legal obligations. The Land Corporation would sell off its financial assets, mainly mortgages, and the pastoral and deferred licence leases which were never part of the Treaty of Waitangi (State Enterprises) Act. Each of the remaining corporations had a variation on these themes. Maori were not consulted about these moves until the decisions were made in the process of being implemented.
The sale process has gone anything but smoothly with major crises besetting the commercial aspect of the sales. Maori have also challenged government's actions. In doing so they have been forced back into the courts. In the most recent judicial pronouncement, the Appeal Court has said the "principles" require the government in some cases, such as the sale of all its forestry assets, to consult. But it takes the duty no further and makes it clear it does not require an equal share of the resource.
In the 1980s New Zealand's fisheries faced serious depletion through reckless overfishing. An attempt to control total allowable catches was introduced in 1983. This was followed in 1986 bya Quota Management System (QMS) which divided up the fisheries amongst those currently commercially fishing. It excluded many of the small and part time fisheries amongst those currently who had been driven out of the industry by statute and policy since 1980. The remaining fishers were issued with individual transferrable quotas (ITQs) in proportion to their share of the catch in preceding years. These quotas would be tradeable private property rights, similar to land titles, but subject to a minimal resource rental. Effectively, the fisheries had been privatised. Ironically, the new owners of the fisheries were those responsible for its depletion. 70% of the quota went to the major corporates like Watties Goodman Fielder, Fletcher Challenge, Carter Holt Harvey. And they were given these potentially valuable quota rights for free. Maori, having been gradually excluded from the fisheries by law and economics since the 1860s, had been dispossessed of the fisheries guaranteed under both the Maori and the English texts in favour of the same major corporates who were lining up to buy the other privatised state resources.
The Quota Management System came under the scrutiny of the Waitangi Tribunal in the Muriwhenua claim in December 1986 at the same time as the corporatisation issue arose. The Tribunal wrote to the Minister of Fisheries saying the QMS was contrary to the Treaty. The Minister declined to stop the issuing of quotas. However, section 88(2) of the Fisheries Act said nothing in the Act shall affect Maori fishing rights. Maori were forced to resort again to the courts. They secured an order requiring the Crown to negotiate with Maori to resolve the issue.
The Maori position, as confirmed by a hui of Maori leaders, was Maori ownership of 100% of the fisheries in principal, with a willingness to share it 50:50 with the Crown. The scheme proposed by the Crown Working Party was more concerned with restructuring the fisheries to maximise the economic return to government than with satisfying Treaty obligations. It offered Maori 27% of the fishing quotas and 3 of 7 seats on a new Fisheries Corporation. This corporation would resume ownership of all the quotas over several years and tender or lease them out at full market rentals. By progressively increasing the resource rental payable, the quotas would be rendered almost valueless. Government's liability for compensation for resuming the quota would thereby be reduced and Maori would be scapegoated for these changes. These negotiations reached a stalemate and the politicians - the then SOE Minister Richard Prebble and Deputy Prime Minister Palmer - took direct control of the process. After several months of secret negotiations, there was still no agreement.
Government in late September 1988 introduced a Maori Fisheries Bill. Maori had not agreed to its provisions. This Bill provided, in the preamble only, for Maori to receive 2.5% of the quota a year for 20 years. However each year's allocation was conditional on Maori "substantially" using the quota they already had to the satisfaction of the Minister. As they could not joint venture, lease the quota, or use them as security, they had little chance of building the capital base on which to successfully fish. Indeed, both Prime Minister Lange and Prebble admitted Maori were unlikely to secure more than 10% of the total, which they considered "fair" given the Maori proportion of the population. All rights to take fisheries claims to the Tribunal were removed for 20 years, section 88(2) would be repealed removing potential litigation and all current cases would lapse. Freshwater fisheries, never the subject of negotiation, was also included. Maori would have to pay full resource rentals on the quota. Their quota would gradually be reduced in value. And control over fisheries administration remained with the Crown.
In late October, while the Maori Fisheries Bill was before the Select Committee, Palmer announced a new scheme. It provided for 2.5% of the quota per year for 4 years and $10 million development grant. The Maori right to seek further redress from the court would be reinstated. In effect, government offered Maori the 10% they expected to deliver under the Bill and evaded responsibility for finally settling the issue until after the 1990 election. The entire fisheries procedure had by that stage dissolved into chaos and Maori interests had been left with almost nothing. Of the estimated $1.35 - 1.67 billion value of the fisheries they were offered $10 million, a 10% share of the quota which would soon be rendered valueless, liability to pay full market rentals and partial Crown control over allocation of the 10% Maori quota.
When the fisheries case returns to court in August it is quite possible that the Court of Appeal, invoking its earlier interpretation of the "principles of the Treaty", will say the government has done all that was required of it - it has made an informed decision, after consultation. Tactically the court may go beyond that. But they will certainly stop short of recognising Maori tino rangatiratanga over the whole of the fisheries.
Throughout 1988 there were other indicators that government had taken the Treaty off its agenda, privately if not publicly. The Labour government has progressively marginalised the Treaty in legislation and policy. The experience over the past four years raises serious questions. Neither direct negotiations with the government on government's terms, nor litigation in the Pakeha Courts, has left Maori much better off. The process has been costly in time, money, energy and mana. It has certainly not delivered to tino rangatiratanga or the Maori control and authority guaranteed in the Treaty and consistently demanded by Maori since 1840. That is not surprising, as neither a . Pakeha government or legal system is likely to concede such a fundamental challenge to its own legitimacy. The challenge now is to find creative alternatives which will deliver power and resources to Maori, and avoid what at times appears to be an inexorable path towards the crises faced in neighbouring Pacific colonies.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1989/15.html