Williams, David V. --- "Crown Action on the Treaty of Waitangi" [1990] AboriginalLawB 15; (1990) 1(43) Aboriginal Law Bulletin 12

• Crown Action On The Treaty Of Waitangi

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Crown Action on the Treaty of Waitangi

by David V. Williams

When the Labour Party won the general election of 1984 in New Zealand it assumed office with the determination to bring about significant changes in a number of fundamental aspects of governmental action. One announced policy was a promise that the Government would "honour the Treaty of Waitangi" by incorporating the Treaty into a Bill of Rights which would be "supreme law" and by improving the mechanisms for addressing historic Maori grievances against the Crown. An unannounced policy, which has been pursued with more vigour than any of the proclaimed election policies, was that there needed to be an economic and bureaucratic restructuring in order to achieve a radical monetarist-inspired shift in policy formation and implementation. This has upset governmental paradigms which have been accepted without question in our governing ideology since the Liberal Governments of the 1890's and in particular since the first Labour Government was elected in 1935. It was some time before it became apparent to Cabinet Ministers that these two policies were mutually inconsistent and that their steps towards implementation of both of them would lead to a series of crises which tested their political management skills and found them wanting on several occasions.

Maori leaders chose on several occasions to resort to the Courts in order to protect their hopes for redress of grievances. They achieved success in several of these cases in the sense that they obtained injunctions to prevent Crown disposal of assets which were subject to actual or potential Maori claims. These injunctions prevented the Governments fast track economic policies being fully implemented in respect of asset transfers to State owned Enterprises, fisheries quota management schemes which disregarded Maori fishing rights, and the privatisation sales of forestry and coal resources. An excellent and detailed analysis of this recent history has just been published: Jane Kelsey A Question of honour? Labour and the Treaty 1984-1989 (Allen & Unwin, Wellington, 1990). I strongly commend this book to AboriginalLB readers.

Of the Maori issues which arose as a result of the governmental changes of direction, the only one to have reached any sort of conclusion, albeit a weak compromise arrived at after tortuous and stormy negotiations, is the fisheries question. The Maori Fisheries Act 1989, which came into force on 20 December 1989, created a Maori Fisheries Commission and it obliges the Crown to transfer to the Commission by 31 October 1992 ten percent of the total allowable commercial fishing catches specified under the Fisheries Act 1983. Meanwhile the Government has backed off from its commitment to honour the Treaty of Waitangi as far as it is possible to go without actually conceding publicly that it no longer wants to honour the Treaty at all. This was signalled most clearly in July 1989 (at a time when many Australian law teachers were in Wellington for the AULSA conference) with the publication of Principles for Crown Action on the Treaty of Waitangi. These principles bear but faint resemblance to the actual terms of the Treaty signed in 1840. Rather, by a selective reliance on some of the "principles of the Treaty" as set out in Waitangi Tribunal reports and Court of Appeal judgements, the Government has evaded the key guaranties of the Treaty itself by which Maori tribes and the Crown would participate in a partnership of shared governance over the peoples and land of Aotearoa / New Zealand.

Pakeha public opinion has been stirred up by news media, vested interests and some Opposition politicians because of the extent of Maori claims submitted to the Waitangi Tribunal since it has had the power to investigate and make recommendations on historic grievances (Treaty of Waitangi Amendment Act 1985). Rather than seek to educate the Pakeha majority on the desirability of addressing the political injustices and cultural oppressions of the past, a less politically risky position has been adopted. The continuing significance of Treaty-related issues is still asserted but power sharing with Maori tribes, or even accepting an obligation to consult with them, have been firmly rejected.

The Government's attempt to regain popularity by issuing the Principles for Crown Action document has been followed by the creation in December last year of a special Cabinet body to be known as the "Crown Task Force on the Waitangi Issues". The aim of the Task Force is to "develop a clear and consistent policy and legislative framework in respect of Maori interests in natural resources". The emphasis is to be on negotiation leading to legislative solutions. The Prime Minister, Mr G Palmer, has not attempted to hide his dislike of views expressed by judges of the Court of Appeal in decisions which, in essence, have tried to persuade the Government to live up to its own statutory rhetoric rather than being forced into negotiations reluctantly and after vigorously opposing the injunctive relief granted to Maori applicants in the cases alluded to above. "It must be clear" Mr Palmer said to a Law Society audience "that the government will make final decisions on treaty issues This is far removed from the halcyon days of 1985 when, as the then Minister of Justice, Mr Palmer so strongly promoted a New Zealand Bill of Rights which would have entrenched the Treaty of Waitangi in a supreme law thus subjecting all legislation to the scrutiny of judicial review on questions of compliance with the Treaty's principles. The New Zealand Bill of Rights re-introduced to the House of Representatives late last year is shorn of all reference to the Treaty and it seeks to eliminate judicial review by leaving scrutiny of legislation in the hands of the Attorney-General only and in respect of a narrow list of individual political and civil rights only.

The sesquicentenary celebrations of the signing of the Treaty of Waitangi are now in full swing throughout the nation. However, there seems to be little likelihood of speedy progress towards the resolution of significant Maori claims in this 1990 year.

Note: See "Treaty of Waitangi issues demand clarity, certainty" NZ Herald, 2 January 1990, for a recent statement by the Prime Minister of the Governments position.