The treaty today – What went wrong and what are we doing about it?
Most of us have grown up without knowing much more about the Treaty of Waitangi than that it was signed last century by anaval captain called Hobson and a group of Maori chiefs. Yet today this piece of paper, regarded by some as a sacred covenant and by others as an obsolete reminder of our colonial past, is making its presence felt in all of our lives. Auckland journalist Ted Reynolds digs into 150 years of treaty history and makes sense of the whole messy, complicated story.
Six years and one month to the day after landing at Paihia in the Bay of Islands William Colenso finished a rush job. He was a printer, and in the early evening of January 30, 1840, he completed the last of a hundred invitations asking Northland chiefs to come to Mr and Mrs Busby’s house the next week to meet the “chief of the Queen”, who had arrived from Sydney to be “a governor for everyone.”
The weather started showery for the week of the big meeting up on the hill at the Busbys’. It cleared on Wednesday, and on Thursday it was one of those days that make you believe summer will last forever. Colenso wrote that even the cicadas “sang livelier than usual. Everything, in fact, wore the appearance of cheerfulness and activity.”
The day was like a big picnic outing, even for the uninvited hangers-on, and as the crowds walked up the hill to see what was happening they could buy their lunches at takeaway stalls beside the track: bread and roast pork, beer, rum and brandy.
In front of the house, sailors had rigged a huge tent. On the beach below and out on the bay the foreshore was thick with canoes and the sea a-bobble with anchored ships. Chiefs, traders, missionaries, settlers, policemen from Sydney who had come over with William Hobson in the ship Herald, and even that French priest Pompallier whom the Anglicans and Methodists distrusted — all the Europeans for miles around had turned up to see what the chiefs would do.
And Mr Busby was being a bountiful host to them.
He had 30 pigs, five tons of potatoes and half a ton of flour for the visiting chiefs, and gifts of tobacco which they could smoke while listening to Hobson — who nearly missed the whole show because he had come ashore late and half-dressed, believing he had not been wanted until the next day — as he asked them to sign the Treaty of Waitangi, the piece of paper which today either angers, bores, frightens, puzzles, shames or gives hope to the country that is still trying to forget it or to come to terms with the promises that were exchanged on February 6, 1840.
After that first Waitangi Day, thetreaty was taken around the country and signed again at perhaps 49 other gatherings. It seems certain that the two sides left the signing ceremonies with sharply different ideas of what had been achieved. The British side believed they had gained sovereignty over a new colony. The Maori chiefs believed they had saved their country from being overrun by British settlers, and that the Queen now protected their status as chiefs over their own tribes.
The reason for the difference is that Maori and English texts of the treaty differ in what they say. The various English versions agree on one thing, that the Queen is to have sovereignty. However, in the Maori version the chiefs merely cede kawanatanga, the right to govern the country.
Whatever the chiefs may have understood by kawanatanga (a word concocted by the missionaries and based on the neologism kawana, for governor) there was no mistaking the Queen’s promise to the chiefs in the second article of the treaty: she guaranteed them the full chieftainship of their lands, settlements and property — but only in the Maori text. In the official English version the guarantee is reduced to undisturbed possession of lands, estates, forests, fisheries and other properties — mere land ownership compared with the sweeping powers of tino rangatiratanga (chieftainship, mana, and, in the eyes of some, Maori sovereignty).
It is this discrepancy between translations and meanings that is at the root of Maori protest. A chief signing the Maori version (and this is the version that most did sign) could have believed that in his own tribal lands his power and authority were as great as before, and that he had also gained a powerful ally who was guaranteeing those rights. The chiefs at Waitangi must have felt quite confident of this because the missionary Henry Williams, who had helped to translate the treaty into Maori, told the chiefs that the treaty “was an act of love towards them on the part of the Queen, who desired to secure to them their property, rights and privileges.”
On the evidence of Williams’ own words he failed to tell them what British sovereignty would mean to their personal status or the standing of their own tribes. So to that degree the chiefs were deceived or, at the kindest interpretation, they were not warned that there was a conflict between the two main promises of the treaty: to give the Queen the right to govern and to accept her promise of continuing chieftainship.
This does not necessarily mean that the treaty was a deliberate, united attempt to rob the Maori of all they possessed. Motives were muddled. One group of Britons thought they were protecting Maori people from a coming British invasion. Others wanted Britain to get its hands on New Zealand before France or America did. Other Britons believed colonies were a bad investment and were opposed to Britain’s decision to make New Zealand a colony. But others did not — especially the investors in the New Zealand Company, who hoped to profit by buying Maori land cheaply and selling it dear.
In theory, their plans for profiteering were killed by the treaty because one clause gave the Crown a right called pre-emption. The word simply means that only the government could buy land from the Maori.
Effectively, this put a stop to land-sharks buying great tracts of land, and people who had bought before the treaty were also forced to have their purchases approved or cancelled by the government. This was because of an oddity in British law which states that private people are not allowed to discover a new island and declare that it is theirs. Instead they must claim it on behalf of the Crown. As a reward, the Crown may grant them part of it, subject to a government right to take it back.
The exclusive purchase right was also intended to be a source of revenue: the government planned to pay its own bills by making a profit on land transactions.
This scheme will crop up again soon. Before it does, it is worth while to look at one more point about British colonising practice. In old-style Waitangi Day speeches, people used to boast that New Zealand was unique: the only British colony established through a formal agreement with the inhabitants. This was wrong. Britain made its first colonial treaty in 1609. In West Africa alone it made 10 treaties similar to the Waitangi Treaty. So by now the Privy Council, which is the highest British law court, has for two centuries been steady in acknowledging the original property rights of colonised people, and after nearly 400 years of colonial experience a great body of law has built up around the honouring of treaties by which Britain gained sovereignty over countries that became British colonies.
One of these principles is that in any later dispute over what the words of a treaty really mean, an interpretation more favourable to the people who were colonised than to the colonisers shall be preferred, and that if the treaty was originally written in two languages, the text in the language of the people being colonised shall be preferred over the English text.
Here lies one reason for the present-day argument over the treaty. Where Article 2 declared that the chiefs would still have “entire supremacy” or “full chieftainship” over their lands, were the treaty-writers undermining Article 1, that says (in the Maori version signed at Waitangi) that the “Chiefs … give up entirely to the Queen of England for ever all the government of their lands.”?
The only thing that seems to be beyond argument is that, in the words of the official English version, the Maori were promised the “full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties, which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession …”
Even then it was, in a way, a bit of a laugh that Britain should acknowledge the Maori’s “just Rights and Property” because Britain lacked the power to affirm or deny anything to do with New Zealand. At that stage the Maori were very much in control. They had the numbers. And if they had chosen not to sell food to the colonists they could have starved the new arrivals to death.
In many respects the reality into which the colonists sailed presents an engaging picture. The settlers arrive confident that they will be conferring the benefits of civilisation on the Maori, but for a time they find themselves out-manoeuvred. Before you can say Campbell and Ehrenfried, the Maori are growing wheat, vegetables and fruit, and buying their own trading schooners to supply the new settlers who, instead of breaking in new farms, are pinned down in little coastal settlements. The illiterate ‘barbarians’ have quickly and efficiently looted their new masters’ minds, have learned their skills and have turned the invaders into their own dependents.
From their very first contact with Europeans, Maori had been strikingly adaptable, vigorous and quick to understand. As far back as 1793, a French captain was noticing how their canoes always approached his ship from the stern, where he had no cannon.
From 1810 onwards, the Maori of Foveaux Strait were selling potatoes to sealers and whalers. Around 1838, Maori just north of Dunedin cultivated European crops. In 1850, when the Canterbury settlers arrived at Lyttelton, Maori sold them potatoes, turnips, corn and melons. Wheat and maize were even exported to Sydney. By 1858, the port of Auckland register listed 53 small ships owned by Maori. And, about the same time, 1792 canoes entered Auckland harbour in one year, bringing to market 200 tons of potatoes, 1400 baskets of onions, 1700 baskets of maize, 1200 baskets of peaches and many tons of firewood, fish, pigs and kauri gum.
Everywhere they went in the world, Europeans carried death as an invisible ally. They wore the germs of killer diseases to which they themselves had developed an immunity, and their own branch of civilisation had been built partly on huge investments of money and cunning into the design of more and more efficient methods of murder. So muskets and measles did cruel work among Maori, but, as a counter-balance, the arrival of Europeans also meant that the narrow range of food Maori had relied on was suddenly widened to the point of providing large, meaty animals which did not need to be laboriously hunted, but instead had been bred to stand obligingly while being killed.
Europeans not only noticed how shrewd and energetic Maori were in adapting to new crops and animals, they also remarked that Maori enjoyed trading and were fair in their dealings. Sophisticated, too. Within 20 years of the treaty, Waikato Maori had set up their own trading bank.
So, in the early days after the treaty, an optimist could have looked around and seen much that seemed to be promising. Maori property and local government, through the power of the chiefs and the cohesion of the tribes, seemed to be protected. Rules had been set up for the sale of land which tribes were willing to sell, and the Queen had promised that good order would prevail instead of warfare. Robert FitzRoy, the governor who succeeded Hobson, more often than not took the Maori side against the settlers. And settlers complained that even the Chief Justice, Sir William Martin, regularly favoured the Maori.
An optimist might easily have forecast that Maori would flourish in the new order and would keep ahead of the changes that were still going to burst on them and to alter their lives beyond all imagination.
But this did not happen. An optimist would have been terribly wrong Why? Why do some Maori now say they have been turned into second-class citizens in their own country? Why are so many Pakeha worrying themselves into resentment over “stroppy Maoris” and Maori who want everything both ways? Why is the Waitangi Tribunal picking at old scabs instead of letting the country move ahead? And why, if in 1877 the Chief Justice of the day declared that the treaty was without force or effect, do we still hear do-gooders droning on as if we were all still nailed to the 1840s?
In a world with few simple reasons, the simple reason is that the treaty was broken while it was still quite new, and repeated breaches of it have not been repaired.
At the beginning, the British Government was concerned to do all the right things, and it was closely watched by a strong humanitarian lobby that wanted to make sure the government kept to its good intentions. Good intentions, though, often need to be backed up with money. And there the government in London failed the governor in Auckland. FitzRoy found he was supposed to run a government that had virtually no income. He raised a bit by buying land and selling it at a profit. But for Maori sellers the message of this deal was that they should have asked for more in the first place.
The chiefs needed the money for business capital. As the country’s providers of food, tribes wanted to sell some of their land so they could invest the money in more schooners, more flour mills, ploughs and seed to supply the towns. And because FitzRoy could not pay a higher price the settlers were stuck in huts on the beach looking back on land they could not buy.
FitzRoy was in a jam. First, he was a ditherer. Also, he was a member of the British group that wanted to protect colonised people from the evils of being colonised. So the settlers distrusted him. From their point of view they had good reason. With tension rising from unsatisfied pressure to sell and unsatisfied pressure to buy, he had overruled a New Zealand Company claim to have bought 60,000 acres in Taranaki and had reduced the area to only 3500 acres.
Eventually, the combined force of willing sellers, thwarted buyers and the uncomprehending meanness of London may have left him no choice, but the short-term and long-term results were both bad. Four years after the signing of the treaty, he abandoned the government’s right to be the only buyer and imposed a tax of 10 shillings an acre on private land sales. This was too heavy and the log-jam remained. Little land changed hands, so he cut the tax to a penny an acre. This was like dropping from a dollar to a cent. Sales leaped ahead, but the tax was so low that the government’s inadequate income slowed to a pathetic dribble.
One short-term result was that he destroyed his own career as a governor. One long-term result was that he demonstrated that a government could break the promises of a treaty and no thunderbolt would fall. If FitzRoy acted illegally, out of uncertainty and lack of money, his successor, Sir George Grey, got away with illegalities by the force of his own confidence and the backing of money and troops which London finally supplied.
Both helped to build the vaguely unprincipled temper of public life in New Zealand — the feeling that a good result, no matter how temporary, justifies any shortcut through the law. Perhaps this was inevitable in the 1840s. Frontier towns have no use for constitutional lawyers. The business of getting things moving comes first. But principle and honour, once abandoned, are hard to regain.
From FrrzRoty’s disgrace, the story leapfrogs the years and comes to earth on a summer’s day in 1975. The people of Rotorua are staring at their lake, which has turned a brilliant green as if it has just been painted with glaring enamel. In fact, the surface is covered with tiny plants — algae which breed by splitting in half, swelling, splitting in half, swelling, splitting… As the green smear spreads over the lake a dreadful stink arises; then the algae fade away, the lake turns blue and the stench grows worse.
It was no surprise. Four years earlier an American biologist had called the lake “an unflushed toilet”, which was a fairly neat description, because every time Rotorua people went to the lavatory they contributed a bit more nitrogen and sulphur to their lake, plus things that the politer sort of scientists call faecal coliform and solids in suspension.
But it wasn’t only sewage that was killing the lake. Rain and creeks contributed fertiliser washed off farms, and every year tens of thousands of tonnes of silt was washed in. During one particular storm, one creek was estimated to have dumped 50,000 tonnes of dirt, dung and dead animals into Lake Rotorua.
All of which was causing the weeds and algae to flourish. But when such plants die, their rotting uses up huge amounts of oxygen. The mounting danger was that so much oxygen would one day be locked up in the decay process that all fish and animal life would die from lack of oxygen. Continuing farm runoff and sewage discharges would turn the lake into a poisoned pond.
From the lake the waters of death would flow down the Ohau Channel into Lake Rotoiti, and from there to the Kaituna River and down to Maketu on the Bay of Plenty coast.
Any sort of improvement would cost frightening amounts of money, but the government would pay part of the improvement as long as the Ministry of Works agreed with what was to be done. In 1965 the Ministry of Works told Rotorua what ought to be done: the discharge from the Rotorua sewage-treatment works should be piped straight into the Kaituna River, bypassing both lakes.
But people hate having other people’s sewage dumped on their own property, even after it has had the worst muck in it filtered and sifted and cleaned. The Arawa people, whose home ground spreads from Tongariro to Maketu, are unusual in having inhabited a big inland area with only a short stretch of coastline. They depend on Maketu for seafood, and the Ngati Pikiao, an Arawa subtribe living alongside the Kaituna, also use the river for eels and freshwater crayfish.
Up until October 10, 1975, when the Waitangi Tribunal was established, the Arawa people had no way to stop Rotorua pouring its sewage effluent into the Kaituna, and, to be strictly accurate, they still have no way, because the tribunal is only allowed to make recommendations, which the government are free to ignore. There is one exception: the tribunal may make decisions about some government-owned land, and when it does, the government must obey.
The new law in October, 1975, allowed the Waitangi Tribunal to listen to complaints about breaches of the treaty, but only if the breaches had happened since 1975. So, early in 1978, the Ngati Pikiao turned to the tribunal for help to stop the proposed Kaituna pipeline.
The treaty had promised Maori people undisturbed possession of their fisheries, but now it looked as if the Kaituna fishery was going to be fouled forever—in effect, taken away from them, because Maori are brought up to be more revolted by crap than Pakeha are, so much so that it is outrageous in a Maori house to sit on surfaces where food is prepared. Bums, even dressed bums, do not mix with food. Water used for cleaning must not be allowed to get into water to be used for cooking.
So the argument from the Ngati Pikiao was that if purified effluent from a sewage-treatment plant were poured into the river, the Ngati Pikiao would not be able to fish in the river or even collect plants for basket weaving from its banks.
A Health Department scientist backed up the Ngati Pikiao by outlining the health risk from such a pipeline. The tribunal heard that viruses could survive after travelling 20km down a river from a sewage-treatment outfall, and that viruses which upset people’s stomachs could be found in mussels as far as 2.5km away from a coastal sewage outfall, or even on the seabed 2km offshore from an outfall.
The result of the Kaituna hearing falls neatly into three parts: simple common sense, a moderately complicated legal argument and finally an almost miraculous outcome.
First, the simple result: the tribunal agreed that because fisheries are protected by the treaty it would be a breach of the treaty promise to let Rotorua empty its sewage effluent into the river. The tribunal also ticked off the Ministry of Works for bullying Rotorua into the pipeline scheme, and was rude about the way engineers often think that a simple engineering fix can be thrown at complicated difficulties.
And now, the complex part of the Kaituna finding. When the tribunal agreed to hear the Ngati Pikiao complaint, the members were new to the tribunal and had a brand new law to use and obey. So they were on a bit of a legal scouting expedition, seeing how far their territory stretched and what their powers were worth. At that time, the general opinion among lawyers was probably that the treaty had no practical power because, if a treaty promise were broken, a person who was hurt by the breaking of the promise could not go to a court to have things put right unless the promise being broken had been written into a law.
The reason for thinking this was that in 1877 the Chief Justice of the day, Sir James Prendergast, ruled that the treaty was totally meaningless a simple nullity. He made it sound as if the writing of the treaty, the signing at Waitangi, and then the whole business of taking copies around the country to be signed by other chiefs, was nothing but an amusing sideshow turned on to impress some savages who were incapable of entering into a treaty anyway, because they were such barbarians that, to use Prendergast’s own words, they lacked the rights and powers of a civilised community. Prendergast had ruled that, instead, the British had won New Zealand by being the first civilised occupier of a territory thinly occupied by barbarians who lacked any form of law. In other words, Prendergast said: Ignore the treaty, it is nothing.
Among many lawyers this remained a common opinion. So the really basic function of the Kaituna hearing was not sewage or pipelines — that was only on the surface. The real purpose was to give the tribunal a chance to dig down into the law and discover whether the treaty was meaningless, or whether it still had in law the power and force which both sides must have believed it had on the first Waitangi Day.
This was a very big question, and the answer to it is still shaking the whole country. Normally a question as important as this would be decided by the Court of Appeal or the Privy Council. By comparison, the Waitangi Tribunal was not only a very junior ‘court’, its style was more casual, which meant that it tested evidence less rigorously than more important courts, and at the time one of its members had no formal legal training. Also, it was limited in the sort of complaints it could listen to, and at that stage it had no authority to decide anything. It was very much aware that it had inferior powers to most other courts, but, because it had been told to act as guardian of the treaty, it had to determine what force still remained in the treaty promises.
This testing of the treaty’s powers may seem an entirely theoretical question, with an answer that could not affect ordinary people’s lives. Not so. The answer the tribunal came up with is now making some people frightened that their homes will be taken from them. It is tempting some politicians to spread fears about Maori activism. It is driving others to warn Maori that they must not develop “unrealistic expectations”, a phrase which turns out to mean they must not expect to have, for example, their fisheries protected, even though the treaty and the 1983 Fisheries Act say that they are protected. And the same answer is also giving other people reason to think that the honour of the whole country may yet be restored and a peaceful future secured.
So the crucial witness at the Kai-tuna hearing gave no evidence about the purity of sewage effluent, nor about lakes, nor about viruses in mussels. Instead, he had 108 pages of research into legal history and 26 pages of footnotes. He is listed in the official finding of the tribunal as P.G. McHugh, fellow of Sidney Sussex College, Cambridge University, and his argument was that Prendergast got it all wrong by thinking of the treaty as a matter of international law. Instead, he should have seen that it was part of the well established colonial law which governs the behaviour of colonising countries.
At this point in the history of the world, McHugh’s arguments sound unfamiliar. Colonies are out of fashion, and in ordinary day-to-day work no lawyer needs to know the obligations of a colonising country.
But the first Chief Justice, Sir William Martin, did, and in an 1847 decision in which he and Judge Chapman took quite the opposite tack from Prendergast’s 1877 judgement, Chapman wrote of the established principles which had guided “the intercourse of civilised nations … with the Aboriginal Natives of America and other countries during the last two centuries.”
In fact, longer than two centuries. McHugh’s evidence went back to 1609 to show that Britain had “insisted on and constantly recognised the land rights of native peoples in the Crown’s colonies”, and he showed that the Crown’s right to be the sole buyer of land went back to the first British colony.
McHugh said there was a well established colonial law and a well established international law, and that, for a tribunal still wondering about its own rights, the vital difference between the two was that if the treaty came under international law, no part of it would have any force in a court until Parliament had passed laws to give effect to the treaty. But if it were classified as colonial law, the treaty would automatically have become part of the country’s laws not quite as toweringly powerful as a written constitution, but almost as strong: a basic law that other laws could not ordinarily override.
So the message of his evidence was that, even in the days when Britain believed it could walk into other peoples’ countries and turn them into colonies, the promises by which Britain took over the rule of a place automatically acquired the force of law, and that whatever land rights existed beforehand were to continue, protected, guarded and upheld by the Crown.
Easily said. But what authority could he quote to show this was not just a one-man theory? Well, he quoted the highest authority known to New Zealand law: the Privy Council, which, in 1902, had rejected Prendergast’s 1877 decision. The Privy Council 1902 judgement sounds quite snappish. Instead of denying Maori land rights, the council said, the New Zealand courts ought to be upholding them.
This had been unwelcome news to a settler government, which later tried to get around the Privy Council ruling by writing the Native Land Act of 1909 in a way that virtually gave the government the right to seize customary Maori land. In effect, the government was poking its tongue out at the most authoritative interpretation of the law that it could receive, and was saying that it would continue to break the promises it had inherited and to break the law it was supposed to uphold.
McHugh put it this way: the 1909 land law was probably itself without power, simply because it was in conflict with the treaty. And in any case, when the government wrote a new law trying to make Prendergast’s mistake correct and enforceable, it spoke only of land. Property rights over fisheries, for example, were not challenged. Indeed, fishing rights had been specifically protected in the Fisheries Act of 1983.
Therefore — and here McHugh’s argument comes back to the Ngati Pikiao and the Kaituna — the Ngati Pikiao had ample grounds to seek protection for their river fishery. They had the rights which had become ingrained in colonial law; they had the specific promise of the treaty; they had the Privy Council’s 1902 ruling, and they had the guarantee of the Fisheries Act.
After McHugh had spoken, the tribunal waited to see if other lawyers would produce other arguments.
None did, and gradually the tribunal began to see the swelling implications of the evidence he had produced. Their sitting had started in the widespread belief that the treaty was just a collection of words without force. Now the Prendergast ruling on which this belief relied had been shown to have been overturned by the highest authority. So it now followed that, until better evidence came along, or a superior court decided otherwise, the treaty meant exactly what it said, that it continued to mean what it said, that there was no way it could be undone, and that the rights it grants are enforceable in a court.
In writing its Kaituna decision the tribunal made itself sound very meek about its own humble status compared with other courts. But privately, the members were dazzled by the boldness of the decisions which the evidence had led them to: they had rescued the treaty from the legal rubbish tip it had been thrown into in 1877 and had elevated it almost to the standing of a constitution. Along the way, they showed that they had the legal power to consider complaints dating back to 1840, not 1975, as stated in the Treaty of Waitangi Act. The government has since rewritten the Act, confirming that this is so.
Because of the arguments the tribunal had heard on the status of the treaty, they wrote one final recommendation which is the almost invisible core of the Kaituna finding: “That the attention of the Chief Parliamentary Counsel and other appropriate officers be drawn into the finding of this Tribunal with particular reference to the consequences of legislation being enacted that is in conflict with the principles of the Treaty of Waitangi.”
Here is a translation: Lawyers who help Parliament write new laws need to warn MPs that new laws will no longer stand up in court if they do not fit the ideas behind the treaty.
That recommendation remains the most powerful thing the tribunal has done. The government decision to accept the recommendation raises the treaty to the standing of a set of principles that must guide all future laws. On some distant day when the tribunal has completed all its work, that one recommendation may still stand as a turning point that shaped New Zealand life more profoundly than nearly all better known moments in history.
Since the tribunal made its Kai-tuna finding, the power of the treaty has been buttressed and enshrined by two authorities, Professor Jock Brookfield, Dean of the Auckland Law School, and Sir Robin Cooke, president of the Court of Appeal.
When he became professor of public law at Auckland University, Brookfield had to perform a ritual duty and give an inaugural lecture before judges, fellow-professors and senior lawyers. He is a mild-looking man and he told his audience not to be deceived by his appearance. One of his interests, he said, was revolution, and therefore his appointment as professor of public law was “very dangerous”. When he spoke those words, they sounded like one of those little professorial jokes with no particular meaning, but by the time he sat down he had left in the air the idea that, since the late nineteenth century, successive governments had so persistently failed in their duty that by now the government had probably lost its right to rule.
His listeners did not need to be told what would logically follow: if there were a revolution which set out to correct the failings of a whole succession of governments, the revolutionaries might have more right to govern than did the government.
The core of his argument is that under the treaty the Crown gained a country, but since 1840 it has failed to pay in full the price it had agreed on.
It probably needs to be said that although the treaty was made in the name of Queen Victoria, the promises made in her name had to be discharged for her by the British government. Eventually, when New Zealand became independent of the government in London, British powers — and obligations — all fell on the New Zealand government. As an independent democracy we have all inherited the obligations and powers assumed by Queen Victoria when in spirit she presided over the first Waitangi Day.
Brookfield’s argument continues by saying that governments have not only failed to honour Maori land rights, they have also oppressed Maori people. In the 1860s the government imposed martial law and imprisoned Maori offenders without trial. They confiscated Maori land. They even sent Maori into exile. And they passed a grossly unjust law which allowed the government to disregard customary land ownership.
This was explosive talk, and it is in the nature of things that a speech like Brookfield’s will pass without much public notice. If someone makes a wild remark such as “Kill a white!”, television and the newspapers jump. But if a more orderly and reasoned person makes a serious and damning list of government failings, the speaker’s more moderate and more complicated argument is likely to be filed away in the too-boring tray.
On the other hand, it is also in the nature of things that the old people in fuddy clothes who attend a professor’s inaugural lecture will all too easily pick up the speaker’s inference that if governments do not act to get themselves back on the rails, they — whichever party is in power — are leaving themselves open to a revolution which the courts may think is justified. One of Brookfield’s listeners, Dr Martyn Finlay, a former Attorney-General, went away from the lecture considerably disturbed by, in his own word, the enormity of the forces that Brookfield had let loose.
But it is also true that although Brookfield’s lecture passed without much public notice, his words moved and spread among people with the power to change events and to change the way that people think. Two years after he spoke, the power of the treaty faced the severest test that a court in New Zealand can apply.
This happened in 1987 when the five judges of the Court of Appeal unanimously ordered the government that it must not hand over any Crown land to any state-owned enterprise until the transfer had been approved by the Waitangi Tribunal. Since the Kaituna hearing, the tribunal had been given the power to order the government to compensate Maori people if Crown land being handed to a state-owned enterprise had been wrongfully taken from them.
So the Maori Council asked for a court order that would delay Crown land transfers until Maori claims had been heard. Otherwise, the land going to state-owned enterprises would cease to be Crown land and would become private land, and, because the Waitangi Tribunal has no powers — repeat, no powers — over private land, former Crown land that had originally been gained wrongfully would forever be beyond the powers of the tribunal.
As with the Waitangi Tribunal’s Kaituna hearing, the immediate question before the court was only a mechanism for getting at the real hidden question.
What was really going on in the Court of Appeal was that the power of the Treaty of Waitangi itself was on trial. If the court went along with Prendergast and said that the treaty was meaningless, it would follow that the judges would have to tell the Maori Council that it was stiff luck they didn’t like the way the Crown had got hold of some Maori land, but that since the treaty did not have any force in law, the court could not interfere.
The five judges knew that their decision would change the direction of New Zealand history, and the president of the court, Sir Robin Cooke, said in his own judgement that the case was “perhaps as important for the future of our country as any that has come before a New Zealand court.”
On the surface of events, the outcome was that the Maori Council won, but the real result was that the court unanimously agreed that for a long time to come the treaty will be a basic part of the law. Sir Robin Cooke added pointedly that the Court of Appeal will insist that the duties which the treaty imposes must be honoured.
With the Court of Appeal decision, history was flipped over and told to march in a new direction, using the treaty as a compass but not as a shackle. It was the spirit that counted, said the court, and the spirit of the treaty was that each side should deal with the other with the utmost good faith. Cooke himself offered a quick workaday interpretation of the treaty: “The Queen was to govern and the Maori were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated.”
It is probably fair to say that not many lawyers and even fewer politicians have either read the Court of Appeal judgement, or understood the changes it demands, let alone the implication behind the court’s description of the treaty as an embryo — meaning a set of principles that can adapt to changing needs, rather than a trap that would keep the country stuck in the nineteenth century.
Back in Rotorua, though, what is happening to all that sewage?
During the hearings, sitting members of the tribunal heard evidence that every sizeable community in the country shoots its sewage out to sea, sometimes using a river to take it down to the ocean. The disadvantages are obvious. Depending on how much the sewage has been treated and the size of the town, the sea will be heavily fouled or only slightly fouled, and as cities grow the fouling will get worse. Less obviously, the plant food in sewage is wasted — all that natural fertiliser is being thrown away.
The tribunal heard that in other places — Melbourne is an example — sewage effluent goes on to the land, and members wondered whether we in New Zealand had ignored land-disposal methods only because most cities are on the coast. It had too little knowledge to recommend land disposal for Rotorua, but it suggested that it could be an idea worth looking at.
Prompted by this suggestion, Rotorua people started looking around and found that, on the Coromandel Peninsula and near Levin, sewage effluent is being used to irrigate and fertilise trees. Suddenly the answer seemed obvious. Rotorua’s Whakarewarewa forest has 640 hectares of land from which sprayed effluent would neither run into the lake nor trickle into areas that are used by joggers and picnickers.
So this is the direction Rotorua is taking. If the idea works as well there as it does elsewhere, including America, nearly all the worrying stuff going into the lake will be turned into trees and then into money. As a back-up, strips of farmland around the lake are being planted in trees to trap the runoff.
Out of the fears of the Ngati Pikiao and the disappointment of engineers and planners in being sent back to their drawing boards, Rotorua could also receive yet another valuable byproduct: one clean lake which tourists will continue to pay to see without having to suffer the stink of rotting plants and fish.
On june 2, 1981, Aila Taylor, a butcher at Borthwicks freezing works at Waitara, put his signature to a sheet of paper. It claimed that four reefs off the coast between New Plymouth and Waitara were in danger from all the muck being poured into the sea off Waitara.
As places go, Waitara does not look much. It is on the northern Taranaki coast, north-north-west of Mt Taranaki, and you can drive through without noticing a great deal, except that the town has a lot of Maori people and a big freezing works which used to be owned by Borthwicks, but now wears the name Affco. If you look quickly, you may also notice that Waitara is the home of Swanndri, the classic New Zealand outdoors shirt.
Pick up any book of New Zealand history, though. Look up Waitara in the index and be surprised at how often the place gets mentioned. The land wars started here in 1859 when Te Teira, one of the chiefs of the Atiawa people, who live along the north Taranaki coast, agreed to sell land to Governor Gore Browne.
Te Teira probably knew he had no personal right to sell, because the ownership of the land rested with other people as well, including his ariki, Wiremu Kingi. But Kingi’s son had stolen Te Teira’s girlfriend, and Te Teira decided to get his own back by selling. At a meeting called by Gore Browne, Kingi forbade the sale and walked out on the governor. At this insult, Gore Browne ground his teeth and went ahead with the sale, sending in surveyors whose pegs were pulled out (on Wiremu Kingi’s orders) by old women.
Using old women to undo the governor’s commands was a measured piece of contempt, and Gore Browne responded by declaring martial law and ordering his troops to attack Kingi’s temporary pa on the disputed land. One private died in the attack — and the land wars were rolling. For Wiremu Kingi it was to be a long campaign: he resisted for twelve years before acknowledging that he was beaten.
It was not until 1928 that Kingi’s stand was vindicated. A royal commission confirmed that Maori at Waitara had been unjustly treated, stating: “The Natives were treated as rebels and war declared against them before they had engaged in rebellion of any kind, and in the circumstances they had no alternative but to fight in self-defence.” By that time the name ‘Waitara’ had become among Maori a sort of shorthand for all land grievances: “Waitara was the root; the evil began at Waitara.”
One hundred and twenty-two years after Te Teira’s agreement to sell the land, Waitara itself had grown into a town of 6000 people — plus Borthwicks. The freezing works had been there for more than 100 years and, at the time of the claim to the Waitangi Tribunal, Borthwicks was having to spend huge amounts of money to bring their works up to European Community and United States standards, and they were also bearing a heavy part of the cost of running an outstandingly crude borough sewerage system.
It was only fair that Borthwicks should pay most of the cost, because the freezing works produced as much effluent as a town of 80,000 people. The refuse that went into the sea was still in its raw state, just minced up and pumped out through a 1200-metre pipeline which had never worked properly. It had broken even while it was being laid on the seabed, and on the surface of the water you could see a revolting brown discharge roiling and rolling above breaks in the pipeline. The result was so disgraceful that swimmers coming ashore sometimes found bits of lavatory paper sticking to them. Others developed boils.
Worse was to come. This was the `Think Big’ era, with industrial development being whizzed past planning laws and procedures on a special fast track. Near Waitara two petro-chemical factories were hurried into production: a methanol plant upstream in the Waitara Valley and a synthetic-petrol factory nearby at Motunui. The methanol plant, having been refused permission to dump its wastes straight into the Waitara River, connected itself instead to the Waitara sewers, leaving unanswered the question of what trouble its chemical wastes would cause at sea. And the synthetic-fuels plant wanted to push a pipeline into the sea near the Motunui reef for its own factory wastes.
At this point Aila Taylor put his signature to a Waitangi Tribunal claim saying that Te Atiawa tribe were being deprived of food from the sea by sewage discharges that were harming their fishing reefs, and that they wanted to have the full, exclusive and undisturbed possession of their fisheries.
Full, exclusive and undisturbed is a straight quote from the treaty, and it turned out that Te Atiawa people were really asking for a great deal less than the treaty guarantees them. They did not want exclusive use; anyone from anywhere could collect fish from the reefs. And they did not want the full use of the reefs; they accepted that Borthwicks and all of Waitara were going to dump gunk somewhere in the sea for a long time to come and, because of that, they had already lost the use of part of their fishery and were prepared to live with the loss. But none of this willingness to share or willingness to lose part of their fishery for the common good meant that they had also lost the ownership of the fishery or the owners’ right to say what should be done with it. And what they now wanted done with it was simply to find ways of not ruining all the four reefs between Waitara and New Plymouth.
Put alongside alarmed mutterings that Maori were trying to grab everything, and that Pakeha would soon not be allowed to go fishing, this was a modest request, more public-spirited than grasping — so much so that the Waitangi Tribunal found itself being pushed into the role of public protector rather than guardian of Maori rights.
Although everyone said at the time that we ran the most over-governed country in the world, and although the methanol and synthetic-petrol sewage proposals had been dragged through a thicket of commissions, tribunals and councils before reaching the Waitangi Tribunal, it quickly became obvious that this was the first time people had been able to get together and talk the whole thing through from every angle. Already the Court of Appeal, the Planning Tribunal, the Taranaki Catchment Commission, the Taranaki United Council, the Waitara Borough Council and at least four government departments had had their say. But each had worked separately and had looked at things either from a narrow point of view or within a limited authority. All of them had cut up one big waste-disposal problem into little bits, and then gone away on their own and examined their own piece.
As the Waitangi Tribunal hearing went on, it began to look as if a better idea would have been to have gathered everyone together at first — the surf club, Borthwicks, the Ministry of Works, the borough council, Te Atiawa, the catchment people, the boat club … everyone — and to have let them all talk and listen until they all understood everybody else’s needs and worries, and then found a united answer instead of now having to waste years paying lawyers to bash a pathway through an expensive and time-wasting minefield of appeals and claims.
In the end, getting everyone together has been the main practical result so far of the tribunal’s Waitara hearing. Because the tribunal meets informally and listens to evidence that is allowed to wander all over the place, it provided a forum for north Taranaki people to decide what sort of sewage system they wanted.
The tribunal said no to the idea of yet another pipeline going out to sea, this time near Motunui reef, and told the synthetic-petrol people to build a waste-treatment plant on their own land, which they did at a cost of about $35 million. And the methanol plant, although allowed to use the Waitara outfall temporarily, decided independently to build its own land-based disposal works. Sewage-disposal options for Waitara and the freezing works are still being discussed.
If we now lift up our eyes from the grotty Waitara foreshore and its notices warning about pollution, the focus of the Atiawa claim will change into something infinitely more elegant and improving: another burst of legal argument about the treaty.
The Waitara application was heard before the Kaituna claim at which the tribunal accepted the argument that the treaty must be considered a living and powerful part of the law; the Waitara claim was also heard before the 1983 Fisheries Act which now reaffirms that the treaty protects Maori fishing rights. So while listening to witnesses at Waitara, tribunal members were still uncertain about the real standing of the treaty they were supposed to be guarding.
And when members came to consider whether the treaty gave Te Atiawa any protection from sewage their reasoning sounded a shade less confident than in the Kaituna claim. Nevertheless, they took comfort from the thought that although the treaty seemed to have doubtful standing in court, no one had so far come before the tribunal to claim that the treaty imposed no moral obligations on anyone at all.
Sustained by this crumb, the tribunal turned to two of the difficulties that face people who are forced to decide exactly what the treaty means. First, members went some way along the road they would later explore at the Kaituna hearing and looked at the status of Canadian and American treaties; in particular they considered a Canadian royal commission which had recommended that work on an oil pipeline which was to run the length of Canada should be halted until Indian hunting, trapping and fishing rights had been settled.
From this the tribunal argued that New Zealanders create difficulties for themselves by thinking of the treaty of Waitangi as unique. Instead, they should look at legal precedents built up in other countries, because principles might be discovered in Canada and America which could help to guide us, just as Canada and America use an 1847 New Zealand judgement by Sir William Martin as one of the classic statements of colonial law. It was Martin, incidentally, who ruled that “in solemnly guaranteeing the Native title … the Treaty of Waitangi … does not assert either in doctrine or in practice anything new or unsettled.”
Then the tribunal turned their minds to the undoubted special difficulties that the treaty does create through having at least five known English versions plus a Maori translation of a sixth, but lost, English draft which in its Maori form differs from the other five versions. The difficulty is this: If the treaty has force, which versions do you obey? Part of the difficulty is eased by the Treaty of Waitangi Act under which the tribunal is established. The act lists one English and one Maori version and instructs the tribunal that these are the texts it is to follow.
The tribunal then heard evidence that different legal principles apply when trying to interpret the meaning of a treaty compared with the principles to be used in interpreting a law that Parliament has passed.
First, the side that writes the treaty and then gets other people to sign it is presumed to understand what it has written better than the other side. So if there is a dispute because part of a treaty has two meanings, the meaning that most hurts the side that wrote the treaty wins. A second principle in interpreting treaties is that if a meaning is obscure, the circumstances that led to the treaty or the intentions of the treaty may be considered in looking for a clear meaning. And British judges have quite recently ruled that, if all this fails, treaties should be interpreted in the spirit in which they were written.
One extra problem exists when treaties are written in two languages. One rule is that neither version is superior, but the Vienna Convention on the Law of Treaties, to which New Zealand is a party, seems to make the Maori version superior because it was this version that was taken around the country for the chiefs to sign: these were the words that the chiefs used when they gave the Crown the right to make laws here, so these are the words to be followed.
The reason for having to consider the relative status of the treaty texts was that the tribunal could act on the Atiawa complaint only if the fouling of the reef at Waitara was a breach of the treaty guarantee of fishing rights. What treaty guarantee of fishing rights? The English version specifically mentions fishing rights and promises to honour them. But the Maori version does not. The Maori version guarantees lands, habitations and treasured other things. Is a fishery a treasured thing, and had Te Atiawa lost part of their fisheries?
The tribunal had no trouble in finding that the use of the Waitara reef had been lost. It had been made revolting both to people and to fish. Mussels had been made so sick that people who risked gathering them found that the shells often crumbled in their hands.
But what did the Maori version mean by treasured things? When the tribunal considered the pride that tribes feel in being able to offer guests a wealth of fish and shellfish, the members had no trouble in deciding that a fishery was certainly a treasure, and when they considered that the English text specifically mentioned fisheries, they had no trouble in deciding that Te Atiawa were being made to suffer because of a breach of a treaty guarantee. And in this way the tribunal was able to reassure itself that it had the right to make a recommendation under the Treaty of Waitangi Act.
The tribunal had felt forced to check every step of the way in reaching this decision, because the real heart of the Waitara finding is that it re-establishes the Maori fishing rights that were guaranteed in 1840 and were once written into the law, but, over the years, somehow fell out of the written law. So one of the tribunal’s recommendations was that the treaty guarantee should once more be written back into the law, and this was done in the Fisheries Act of 1983.
It took six years for the underlying meaning of the Waitara finding on Maori fisheries to reach down into the general understanding, and even then it took another tribunal finding to spell out the full force of the Waitara recommendations. The meaning quite suddenly burst on commercial fishermen after the Muriwhenua claim, in which the tribunal found in favour of the northern tribes in their claim for the use of the fisheries around the tip of Northland.
One group of commercial fishermen responded with anger and defiance. But it may be significant that since then the biggest fishing companies now accept the idea of Maori tribes still owning the fisheries they were guaranteed. They are now helping to define how much of the modern fishing grounds must be returned to Maori control.
So far the Waitangi Tribunal has looked like some sort of judicial Lone Ranger dashing in to deal out justice and then, with a flash of hooves and a cry of “Heigh-ho, Silver!” galloping away to save more eels and mussels, leaving behind cheering sewerage engineers rejoicing at the prospect of having years of highly paid work handed to them.
If this were all — if the Waitangi Tribunal’s function were simply to get parties together and keep them talking until they see that they are all wanting the same thing — there would be no Waitangi Tribunal. There might instead be some sort of arrangement under which all the country’s statutory bodies, territorial authorities, community councils, united or regional councils, special-purpose authorities and statutory national boards knew that they must first consult with everyone they can think of, so that they get things right at the start instead of later having to crawl slowly and expensively through courts and appeal boards.
Although the Waitangi Tribunal has, in fact, been a peacemaker at Waitara and in the Rotorua district, its objective is not to calm and soothe but to put right, where it can, some of the results of old injustices. History cannot be unpicked; some injustices cannot be undone. When Parliament set up the tribunal MPs said, in the Treaty of Waitangi Act, that the tribunal should attempt practical, not theoretically perfect, cures. One example of how the tribunal treats this instruction cropped up in the Manukau claim, when the people of Makaurau marae complained that engineering works had destroyed a creek that they used to use for pipi and mullet, and that their scallop and oyster beds had been concreted over.
The engineering works they were complaining about cover over 700 hectares, and the marae people did not want compensation; they just wanted everything restored to the state it used to be. The tribunal rejected their claim. It was, said the tribunal, not realistic to destroy 700 hectares of concrete sewage-oxidation ponds.
The reason, then, for the tribunal, is that, as with other countries, our present society is at least partly built on injustices. Elsewhere, though, the cruelties and injustices were performed openly in outright hatred by invasion, starvation, fire, blockade, rape, looting, bombardment. With us they were committed after solemn promises of fair dealing.
But is anything to be gained today from feelings of guilt? Probably not. Then again, if correctable injustices are denied or ignored they can never be put right, and both treaty partners will be doomed to rising levels of tension.
When the Waitangi Tribunal completed writing its finding on complaints from the people of the Manukau Harbour it finished with these words: “The policies that led to the land wars and [land] confiscations [after the wars] are the primary source of grievance … It is the continuation of similar policies into recent times that has prevented past wounds from healing … Despite the injustices of the Manukau’s past and some chafing at the bit from the younger generation, those before us reaffirmed their loyalty to the nation and their reliance on the due processes of law. It is not their loyalty that is in question but the good faith of [successive governments].”
The claim to the tribunal about the loss of Manukau Harbour property rested on the second article of the treaty, in which the Crown, which really means the government, guarantees Maori the full, exclusive and undisturbed possession of their land, estates, forests and fisheries “so long as it is their wish and desire to retain the same in their possession.” In spite of this guarantee the Manukau people were stripped of more than 146,000 acres before the treaty was twenty-five years old. And this was the greater part of all their land.
The Manukau people are part of the Waikato-Tainui confederation, and as more and more settlers arrived in Auckland the pressure to expand south into the Waikato became intense. But Waikato people did not want to sell, and by 1858 the tribes in the Maori King movement were united in their resolve to resist land sales to British settlers.
It was doubly their right to resist. Their ownership had been guaranteed, and in the treaty Queen Victoria had promised them “all the Rights and Privileges of British Subjects.” So their dwellings had, like an Englishman’s home, been turned into castles, secure against the pretensions of governments and the greed of fellow subjects.
During a truce that settled over Taranaki after the beginning of the land wars, Rewi Maniapoto, the leader of the anti-European faction in the Waikato, advised Taranaki Maori to make an attack, and Governor Grey responded by invading the Waikato — an attack on the whole Waikato to punish incitement by one faction. The government could have responded by encouraging the moderates. Instead, it manoeuvred the moderates into joining the government’s toughest adversaries. So the tribes living south of the Bombay Hills drew together against Grey’s provocation. But the Manukau people, who inhabited the buffer zone between Auckland and the Waikato Valley, had still to decide whether to join the Waikato side or the government side.
The Manukau people’s version of the story is that the decision was made for them with the arrival near the Manukau Heads of two gunboats which disembarked soldiers who were under orders to destroy every canoe. They blew up all but one, and wrecked villages.
Here is the account of Sir John Gorst, who was resident magistrate in the Waikato from 1861 to 1863: “There were several Maori villages near Auckland — viz. Mangere, Pukaki, Ihumatao and others — inhabited by relations of the Waikato tribes. A large proportion of these people were old and infirm … Yet our arrangements for governing Native settlements, even close to our own doors, were so defective that the instant war broke out we found it dangerous, though we had ten thousand men in the field, to allow these poor creatures to remain in their homes. Twenty Maori policemen could have quelled the whole of them if in actual revolt, but the government had not a single Maori policemen on whose obedience they could depend. It was therefore resolved to drive these poor men and women from their homes and confiscate their lands. There was no difficulty in finding a pretext. They were Maori and relatives of Potatau [the Maori king]. Underlings of the Native Office were despatched in haste to call upon them to give up their weapons and take the oath of allegiance to the Queen, or, in default, to retire beyond Manga Tawhiri under pain of ejection. The first native to whom this cruel decree was made known was Tamati Ngapora, the uncle of the Maori king … Tamati and other Mangere Natives quite understood their alternatives. They must submit to what they regarded as an ignominious test or lose the whole of their property and yet, to their honour be it said, they did not hesitate for a moment. They all thanked the Pakeha for this last act of kindness in giving them timely warning of the evil that was to come upon Waikato and an opportunity of themselves escaping; but they could not forget that they were part of the Waikato and they must go and die with their fathers and friends. The same answer was returned at Pukaki and Ihumatao.
“The fugitives were, of course, unable to carry all their goods with them. What remained behind was looted by the colonial forces and the neighbouring settlers. Canoes were broken to pieces and burnt, cattle seized, houses ransacked, and horses brought to Auckland and sold by the spoilers in the public market. Such robbery was, of course, unsanctioned by the Government but the authorities were unable to check the greediness of the settlers …”
Fifty-five years after the wars, a royal commission under the chairmanship of a Supreme Court judge, Sir William Sim, had this to say of Gorst’s history: “The accuracy of Sir John Gorst’s account of the transaction has not been questioned in any way. If it be accepted as correct, as we think it ought to be, then it is clear that a grave injustice was done to the Natives in question …”
As to the start of the land wars, the same royal commission came to this conclusion: “When martial law was proclaimed in Taranaki, and the Natives informed that military operations were to be undertaken against them, Wiremu Kingi and his people were not in rebellion against the Queen’s sovereignty; and when they were driven from their land, their pas destroyed, their houses set fire to, and their cultivations laid waste they were not rebels, and they had not committed any crime. The Natives were treated as rebels and war declared against them before they had engaged in rebellion of any kind, and in the circumstances they had no alternative but to fight in self-defence. In their eyes the fight was not against the Queen’s Sovereignty, but a struggle for house and home …”
From Gorst to Sim and on to serious contemporary historians, there now seems no doubt that in spite of Rewi Maniapoto’s faction, which favoured attack, the King movement, after frequent debate, decided against starting a war. So they did not rebel but were attacked by British troops in direct violation of the British promise that they might keep their land as long as they wished. And as a punishment for being attacked and defeated they next had vast sweeps of land confiscated. Land lost by confiscation between Mangere and Pukekohe comes to 146,188 acres, parts of which, but only small parts, were returned as native reserves.
By now it is an increasingly common argument among Pakeha who have grown weary of the Waitangi debate, or who have grown increasingly hostile to Maori complaints, that the war and the confiscations happened a long, long time ago; and why can’t we just get on with the business of building a nation? The difficulty with this argument is that confiscations have continued right up to the present day, sometimes with every sign of deliberation and deception, but more often through sheer administrative incompetence within the Maori Land Court and the Maori Affairs Department. People may see wonderfully good reasons to be forgiven the sins of their forefathers in 1870. But can time’s forgiveness be called on to hide tricky dealings in the 1970s?
The story of the Waiuku Block between 1864 and 1984 makes chilling reading. It may also make a complete reply to people who try to instruct the Maori people on the need to live in the present.
The Waiuku Block lies between the mouth of the Waikato and the Manukau Heads, low-lying at the south, a crumpled peninsula to the north, and covering 43,700 acres. It was all confiscated after the wars, but four blocks were later returned to the owners as burial grounds. They covered only 725 acres.
Because sand dunes were spreading inland the government in 1935 started planting a pine forest, and because of the sand the Maori began to move off the land that had been returned to them. In 1939, the government took back 509 acres for sand dune reclamation, leaving three blocks totalling 216 acres. In 1959 the government took nearly all of that land under the Public Works Act, leaving only a 14-acre burial ground and five acres of fishing reserve.
In 1966 a Government Gazette notice set aside the last three blocks it had taken, reserving them “for the purposes of the Iron and Steel Industry Act”. In the same year the government gave New Zealand Steel Ltd a 100-year right to mine the land for the ironsands which the steel mill turns into iron. New Zealand Steel pays the government a royalty of five cents a tonne, a cut rate which subsidised New Zealand Steel shareholders.
The owners whose land the government seized might easily make a case that the government deceived them in taking the land under the Public Works Act, which is supposed to be used when the owner refuses a fair price for land needed for essential public works. The Public Works Act was never meant to be used to provide company shareholders with a cheap source of their basic ingredient.
Worse follows. In 1959, when the land was taken, the government was not required to tell owners their land was being seized if the land was registered with the Maori Land Court instead of being recorded in the Land Transfer Office. That is to say (in the erroneous but handy shorthand of the idiom) if it was “Maori land” the government could take it without even telling the owners, but not if it was “Pakeha land”.
It just happens that in 1959, when the last of the land was seized, Maori Land Court records were in such disorder that the Hamilton Maori Land Court recorded no living owners of the seized land. Only one living person was recorded as having a claim to succeed to any of the land. (Twenty years later a royal commission estimated that it would take 10 years’ work to bring the Hamilton court records up to date, but that is a different story and will be gone into later.) The land court is supposed to have the power to seek out owners, but when the government took the final 216 acres, the court did not try to find owners, nor were any potential successors notified.
And not only could the government take Maori land without telling the owners, the government was not required to settle compensation with the owners of Maori land. In 1971, but only as a result of a misunderstanding, the Maori Trustee learned of the seizure and approached the Ministry of Works for compensation. The following year the Ministry of Works paid the Maori Trustee $649.59 for the 216 acres. The money included $249.59 interest.
So with compensation plus interest the government got the land for $3 an acre, even though in 1963 the Ministry of Works had written to New Zealand Steel assessing the value of the land at $200 to $260 an acre.
It was not until 1984, when the Waitangi Tribunal considered the Manukau claim, that many owners of remnants of the once-great Waiuku Block knew that the last of their land had been taken.
At the same hearing, people of the Ngati Te Akitai and Waiohua wept openly when telling the story of their main marae, Pukaki. It was one of the marae mentioned by Gorst and it stood close to two creeks and a lagoon and was therefore ideally situated for food and for canoe shelter. When Governor Grey attacked the Waikato, the Pukaki marae people were one of the groups forced to abandon their homes. What they left behind was looted and destroyed. After the war the marae, their burial ground and 1300 acres were confiscated. They were left with 160 acres and there they moved. By 1890 they had rebuilt their marae, and in the 1950s 200 families were living there, down a side road that runs off one of the main approaches to Auckland’s airport at Mangere.
In 1925, the Auckland Harbour Board had leased out the lagoon to be reclaimed. Today the cow paddocks that lie on top of the old seabed are part of harbour board property which includes surrounding land and the burial ground. The Waitangi Tribunal Manukau finding says that in the 1970s a stock-car track was built around the lagoon, part of the burial ground was bulldozed away and human remains were exposed. It was also claimed that some of the leased land was being quarried. As will be seen later, the lessee rejects some of this evidence.
Making its own inquiries, though, the tribunal unearthed a scandal that has nothing to do with the lessee. The heart of it is that in 1947 the marae owners gained Maori Land Court approval to create a Maori reserve of three acres for a meeting house and houses associated with the marae. To create legal access to the reservation a private roadway was to be created between the marae and the road. A surveyor did the job and deposited a plan showing the road. Then, in 1953, three little blocks of land — seven acres altogether — were separately surveyed. The marae owners then believed they owned a 43-acre block within which were four separate pieces of land of 10 acres all told, a strip of land that was reserved as a roadway, and, surrounding all these, the remaining 23 acres.
The marae lay close to the boundary of the new Auckland airport, and because the airport authority was interested in buying the remaining 23 acres the marae owners engaged a land agent to sell the land to the authority. But no sale resulted and later the Maori Land Court made a land agent trustee for the Pukaki land minus its marae, minus its roadway and minus the three separate blocks created in 1953, and the agent was instructed to sell the land to the Auckland Regional Authority. In fact, the land was sold to a private buyer at twice the amount the ARA had offered. Clearly, the agent had exceeded his authority from the court, but considering that he had doubled the sale price no harm at all seemed to have been done to the owners until they were evicted from their marae, their meeting house, their own houses and from the small blocks they thought they had preserved forever.
What had gone wrong? The tribunal’s own inquiries showed that the owners had done everything by the book; the Maori Land Court had gone through the right steps; the surveyor had done all he should have done and the land agent could not be blamed except on a technical niggle. Instead, the fault lay in the Maori Affairs Department. Routine clerical actions which should have completed and given legal effect to all the owner’s moves since 1947 had never been taken. Simple administrative failures had so fouled things up that court orders embodying the owners’ wishes had disappeared into a black hole.
The result was that all the land the owners wanted to sell plus all the land they wanted to hold on to had been transferred to the private buyer, and the cruelty of it was that because the land had been transferred from the Maori Land Court register to the general register in the Land Transfer Office the buyer was now the unshakable proprietor. At that time the Maori Land Court offered a muddled and uncertain register, and the court’s processes were open to abuse, but the Land Transfer Office provided an impeccable service that gave absolute certainty of ownership. This perfect service is as open to Maori as it is to all others, and used by many Maori. But other Maori have felt a rightness about using their own land court, even though the conditions under which it was run at the time of the Pukaki marae sale meant that Maori were regularly stripped of their land through clerical muddlement and incompetence.
So, dispossessed, bewildered and weeping, the Pukaki people were forced to walk off the marae that had been sold against their wishes. Today they return to the area only to bury their dead in the cemetery over the road from the marae site, and even they have no automatic right to enter the cemetery. They must first get permission from the lessee.
In 1985, I wrote about their plight and very quickly got a blistering telephone call from the lessee. He sounded such a bracing contrast to the politeness and delicacy of my own acquaintances that it seemed a visit to him might be an adventure, and out to Pukaki Road I went. For a start he was without restraint in telling me I had been sucked in by a pack of Maori bullshit, and once that phrase and a lot of other swear words had blown itself out he drove me down into the paddocks whose edges had once been lapped by lagoon waters and instructed me to show him where land was being quarried or where bulldozing had brought down any of the bank that forms two boundaries of the burial ground. I could see no signs.
In what I had written there had been at least an implied complaint that airport work had cut the Pukaki people off from their food supply in the two nearby creeks. This also, said the lessee, was more bullshit. The Maoris just didn’t have the gumption to fish any more. Instead a bloody Islander kid came and caught bloody bucketfuls of herrings and sold them to some bloody fish shop in Glen Innes. He said he had taken quite a shine to the enterprise of this bloody Islander kid, though he wondered what sort of weird bloody people would actually buy herrings and eat them.
By now the lessee and I were beginning to get the hang of one another, and as his hostility faded he took me over to the burial ground. He said that when he was spraying gorse on the farm he sometimes gave the old burial ground a bit of a burst, otherwise all the graves would get overgrown — didn’t mind doing it, but he sometimes wished the tribe would come over and look after it themselves, instead of leaving it all to him.
Then he led me over to one particular spot inside the fenced cemetery where he kicked away some turf and looked down at the dirt underneath. “Samarra fact,” he said, “I’ve had a bit of a yarn with them and they say it’d be all right if I was to come in with them. So we’ve sorted out where I can go and this is the bit where I’m going to be planted when I push off. Just here, eh?”
After this we drove down the road to visit his neighbours, who are Chinese market gardeners. By his account of it, the neighbours work 25 hours a day and bust their guts to produce the best broccoli in Auckland.
When we arrived Mrs Y_ was working alone in the packhouse and he and she began shouting at one another as if they were about to square up and have a stoush. But they had grins on their faces as they talked and after leading me around the packhouse and showing me the things to admire and repeating how hard the Y_ family works, he said to Mrs Y_: “Better give this joker some bloody broccoli and we’ll piss off,” which she did. And so did we.
The nasty part of the land wars was not so much the killing as the politics and profiteering. In Auckland the leading politicians and profiteers were Thomas Russell and Frederick Whitaker, who were lawyers, land-jobbers and members of Parliament. At the time the war was being planned, Auckland dominated Parliament, and Russell and Whitaker dominated Auckland, mainly because they also belonged to a self-contained group of capitalists and speculators known as the Auckland Kelly Gang, who controlled a network of companies at the core of which lay the Bank of New Zealand, then privately owned and used by the Kelly Gang to finance their own speculations.
If this sounds like a wonderfully cosy arrangement for Russell and Whitaker, it was. But the wealth of the Kelly Gang and of Auckland itself was all built on a frail crust that might crumble at any time. The Thames goldfields, which would provide Auckland with a brief season of optimism and exuberant gambling on the stock exchange, had not yet been discovered. But the Central Otago gold rush was in full swing, so Dunedin had overtaken Auckland as the fount of wealth.
Dunedin, Christchurch and Wellington had all managed to open up their hinterlands, and money from wool gave them more solidity and backbone than Auckland had managed. Auckland needed the broader base that more farming would provide, but the unroaded clay of the North Auckland peninsula still baffled would-be farmers. What Auckland had to acquire were the broad, sweet acres of the Waikato and Waipa valleys. But they were occupied by the obdurate Kingites. Twenty years beforehand, the Maori had been promised that they could hold on to as much of their land as they wanted, and in the early 1860s the Waikato, King Country and Taranaki Maori were united in agreeing that this was exactly what they were going to do. This, to many rich, pro-war Auckland merchants, smelled strongly of rebellion.
Because Russell and Whitaker were lawyers they prepared for law by writing laws. The Suppression of Rebellion Act allowed rebels to be imprisoned without trial, although military courts could also punish rebels by “death, penal servitude or otherwise”. The new law also indemnified soldiers from punishment for any acts they might perform against Maori. So much for the “Rights and Privileges of British Subjects” which Queen Victoria had bestowed on the Maori when offering them her royal protection; now her ministers were licensing soldiers to perform any inhumanity and guaranteeing they would not be punished.
This law was backed up by another, the New Zealand Settlement Act which allowed the government to confiscate rebels’ lands — that is to say, the land of people who, according to the 1926-28 royal commission, were attacked first by the forces of the government, were not in rebellion against the Queen and were forced into self-defence.
Armed with these laws, the government could now march on the Waikato. Indeed, it had created pressure on itself to start a war. The 4000 men recruited in the Australian and Central Otago goldfields for the Waikato Militia had partly been lured by the promise that after they had defeated the Maori they would each receive a grant of 50 acres. To honour this promise the Government needed 200,000 acres, but already Auckland was pinched for land and if no war came the 12,000 citizens of Auckland would face the resentment of 4000 angry and unrefined soldiers.
Auckland merchants who supported the war policy of the Fox-Whitaker ministry (1863-64) saw that the “native difficulty”, as they called it, could be turned to personal opportunity. Wholesale confiscations after the war, combined with access to the obliging vaults of the Bank of New Zealand, would mean that Kelly Gang members could buy up great slabs of confiscated land, then resell it to settlers. And so they did. Take one humble example: In 1867 James Farmer, for many years manager of Brown and Campbell’s One Tree Hill estate in Auckland, bought 20,000 acres near Cambridge, reselling it within a year to make a 250 per cent profit of £5000. Greater grandees made greater gains. J.C. Firth was able to add a 50,000 hectare estate at Matamata to his permanent possessions.
Confiscated land totalled about 3,000,000 acres, and in practice about half went back into Maori ownership. But even after the other 1,500,000 acres had been settled, pressure to expand continued. Customary Maori land-ownership — one MP called it “the beastly communism of the pa” — was a good defence against European pressure to sell: at its simplest the chiefs and members of a tribe had to agree to sell. Out of many added complications there was also this one: a complex pattern of rights to use land was stored away in each person’s memory, and these rights were not the same as what Europeans understood by ownership. There were, for example, rights to build eel traps at defined parts of a creek, rights to take birds from a known tree, rights (and this was particularly important in the South Island) to visit great inland hunting grounds in the autumn to catch weka.
In 1865 Parliament set out to destroy this system. By then power had swung south. Sir Frederick Weld, a North Canterbury runholder, was premier, and James Edward Fitzgerald, a Canterbury journalist, was native minister. Fitzgerald, though he was widely held to be hopelessly and idealistically pro-Maori, introduced into Parliament the Outlying Districts Police Bill which required chiefs to hand over criminal suspects or be liable to have land seized. Weld, who believed the treaty should never so extensively have recognised Maori land-ownership, wanted Maori land holdings reduced — and quickly. So in 1865 Fitzgerald’s Native Land Act acknowledged in its preamble that one of its aims was “to encourage the extinction of tribal ownership.”
Under the 1865 act any member of a tribe could apply for his ownership rights to be registered by the court, which sounds simple and straightforward. In practice it was not. An application by one man meant that every man and woman had to apply to have his and her rights also registered; otherwise when ownership came to be registered in the court, people who had not applied and people who had not attended the court sitting would find that the rights they had inherited were no longer registered in the court’s records.
The underlying cruelty of this system was that the first person to apply for rights to be registered in the court might easily have been paid to make an application by a land agent, a hotelkeeper or some other would-be buyer. The land agent would offer to finance the application, and when the court sat at some town the local hotelkeeper and shopowner might offer the Maori claimant credit for food and drink while the case was being heard. Other members of the tribe, camping for weeks in the town while the court sat, found equally easy credit. But by the time the court had reached a decision the owners might find they had run up such huge debts to surveyors, lawyers, land agents, grocers and pubkeepers that the only way they could escape the town where the court had been sitting was to sell the land which the court had only just assured them that they owned.
A well-known report from the New Zealand Herald of 1883 says: “The working of the Native Land Court has been a scandal for many years past, but as the chief sufferers were Maoris nobody troubles themselves very much. The cases went on month after month. All this time the Maoris were living near a European town; to keep them advances were made by the land buyers and enormous interest was charged. The money usually went for rum and the whole of the time was spent in debauchery. The consequence was that at the conclusion of the sitting they had entirely divested themselves of their land.”
Judge Lewis of the Native Land Court put it this way in 1891: “The whole object was to enable alienation [sale] for settlement.”
Around the same time, a royal commission reported on the effects of the land laws: “The crowds of owners were like a flock of sheep without a shepherd … The right to occupy and cultivate possessed by their fathers became in their hands an estate to be sold. The strength which lies in union was taken from them. The authority of their natural leaders was destroyed. They were surrounded by temptation. Eager for money wherewith to buy food, clothes and rum, they welcomed the paid agents, who plied them always with cash and often with spirits.”
If Lewis was right in saying that the object of the court was to get Maori to sell land for European settlement, the object was undoubtedly attained. Between 1865 and 1875 10,000,000 acres passed out of Maori hands.
By now this is all long ago and far away. And by now many losses have become just another of the burden of wrongs that all the world is required to carry around with it. But that is no reason to forget. Forget the past and the present makes no sense.
But the real reason for considering the Maori Land Court is that right up into the 1980s it was steadily continuing to separate Maori from their land. In New Zealand, ownership of land is not created by buying it, inheriting it, by being given it or by living on it for years without challenge. Ownership comes by these methods, but ownership is finally achieved only by having the new owner’s name written on to the certificate of title that is held in the Justice Department’s Land Transfer Office. Once this happens ownership is guaranteed by the government.
But the new owner is not forced to go to the Land Transfer Office. The new owner may be quite content to rely on the ownership records held by the Maori Land Court. At their best, they are less certain than Land Transfer Office records. But if the owner feels more comfortable that way, that is the owner’s free choice, and in theory no harm need come from using the Maori Land Court. It is no longer an agency working to strip land from Maori. Chief judge Eddie Durie, when he appeared before the 1980 royal commission of inquiry into the Maori Land Court, described the modern court as a forum to help Maori use land held in multiple ownership.
And yet the reason that there was a royal commission for him to appear before was that the court, which got its administrative back-up from the Maori Affairs Department, had been so ignored in its need for clerical assistance that its records of ownership were collapsing into a state of terminal chaos. The Rotorua court had got itself so far behind that it was estimated it would take one person 50 years to put the record to rights. Other courts were also in an administrative mess. Durie cited one court district in which a lawyer had written the same letter to the court registrar once a month for more than 12 months asking for one routine action to complete a sale.
In one district, notice of court sittings had not been issued on time for at least 12 months. Once, a sitting had begun before notice of it had been distributed. This was not just an offence against administration neatness. Failure to get notices out on time could leave a year’s work open to challenge simply because interested part-owners had received no warning that a decision was about to be made on their land. Durie added that complaints were getting so bad that the court could use a full-time complaints officer.
The finding of the royal commission revealed a shambollux that Pakeha would not allow to happen to themselves. In recent years, when the Auckland Land Transfer Office began to lag in its record keeping by a matter of days, extra staff were called in to bring the work up to date — and, in fact, transfers of ownership are recorded exactly to the minute, with the time marked precisely on the certificate of title: 10.51 am, 10.52 am, 10.53 am and so on. The 1980 royal commission found that Maori Land Court ownership lists had become incomplete, meaning that up to 1980 and inevitably since then, some owners have been dispossessed by the court for no just reason, merely by administrative collapse.
Unlike the Land Transfer Office, the Maori Land Court will register land that has never been surveyed. The royal commission estimated that at 1980 prices, full surveys of Maori land would cost $2,100,000, but noted that the Department of Lands and Survey was putting aside only $50,000 a year to survey Maori land. At that rate the job would take 42 years.
Successive governments were not entirely to blame for having given Maori a second-rate land registration system. The intention had been that Maori Land Court ownership orders would also be passed on to the Land Transfer Office and be recorded there, which would make ownership secure. Maori landowners — all landowners — are allowed to do this, and it is an option that some owners of Maori customary land have taken. But others, either for their own reasons or out of ignorance, did not get a Land Transfer title for their land.
Some were uncomfortable with the idea of turning their inheritance into “European land”. Others could not afford the survey required for a guaranteed title. Others, remembering that old-time surveyors sometimes took part of a block of land instead of payment, had resisted surveys, believing their land would be further nibbled away.
One result of the less-than-perfect security of ownership granted to Maori who do not use the Land Transfer Office is that they are hampered if they try to borrow to buy farm equipment or to build a house (lenders dislike handing over money on the strength of dodgy ownership), nor can some Maori get building permits, because county councils insist on houses being built so many metres from the boundary — and where is the boundary on unsurveyed land?
Other blocks have become completely surrounded by neighbours, leaving no right of access to Maori owners. The blocked-out owner could go to the Maori Land Court and ask for right of way across other land. But rights of way must be registered on both the owner’s title and on the neighbour’s title, and when the administration of the Maori Land Court was at its lowest ebb, rights of way were sometimes recorded only against one piece of land and not the other. So the owner’s need, the neighbour’s consent and the court’s command all evaporated into nothing because of ill-trained, overworked or unsupervised court staff.
The 1980 royal commission wrote a coldly stinging condemnation of the muddle Maori Land Court records had fallen into, and acknowledged that confusion may have gone beyond repair because the cost would probably be prohibitive. The Department of Maori Affairs submission to the same commission adopted a similar hand-wringing tone: “The ideal is that all Maori land should be on the land transfer register, but it is doubtful if this is even remotely practicable.”
In the end there is no escape from the shameful conclusion that, right up to the present day, one section of the community has been driven into insecure ownership and, at worst, total loss of land, simply because nobody cared to make sure that enough trained clerks were provided to keep proper records.
People who have been incubating the fear that their own land is about to be “handed back to the Maori” must be asking themselves why there was no outcry in 1980 when Sir Thaddeus McCarthy published the royal commission’s catalogue of the failures and neglects that are robbing people of their land. Or are the New Zealand Herald’s words of 1883 still true? — “but as the chief sufferers were Maori, nobody troubled themselves very much.”
Certainly, nobody seemed to trouble themselves very much in 1941 when the Tainui Awhiro people lost their meeting house and the surrounding 40 acres near the Raglan Harbour. On the land were a dining room and a number of huts that families were living in. This was wartime, and the government had decided it needed the land as an emergency landing strip. So the people left, the government destroyed the buildings and — according to Eva Rickard, who conducted a long campaign for the return of the land — promised to build a new meeting house and dining hall elsewhere. The people scattered; many went to live with relatives. According to Eva Rickard, the government then said: “The natives have all gone. How can we now build a meeting house for them?” and instead handed over $660 in compensation. After the war, the land was given to Raglan County, even though the usual rule is that commandeered land must be offered back to the former owner. In 1969 the county leased the land to the Raglan Golf Club, which spent $100,000 to turn the land into a golf course and to build a clubhouse.
Eva Rickard, who is blessed with persistence, a sense of high drama and an ability to get up the noses of the mighty, started campaigning for the return of the land to the Tainui Awhiro people. With 16 others, she was arrested for standing on the course near one of two tribal burial grounds during a tournament. In the High Court in 1978, she and the others were found not guilty of trespass. But it was only because of a technicality that they were innocent: the golf club’s lease was faulty. So the High Court validated the lease, making the golf club the lawful occupant.
Lawful maybe, but in Eva Rickard’s eyes not the rightful occupant, and her campaign continued. But now all that she had on her side was a sense of fairness. The Tainui Awhiro had relinquished part of their land for the defence of the country. Why had it not come back to them?
On October 26, 1983, she seemed to win her case. The Minister of Lands signed an order returning the land, and on December 2, 1983, the Maori Land Court at Hamilton conditionally vested the land in the Tainui Awhiro. The condition, though, was that they could get their land back if they now paid $9000 for it.
Perhaps foreseeing what Eva Rickard might say on hearing that she must produce $9000, the Maori Trustee tried to head her off by offering to pay the money. But no, she held her ground. If the land had been wrongly given away to the county, why must the old owners pay to get it back? Four years and two months passed and then, on the day before New Year’s Eve in 1987, the government told the Maori Land Court that no money would be required. And so the land went back, freely, completely, and with no conditions.
In the meantime, the government had bought the golf club a new course, which was a clear admission of what had been obvious since the day the High Court rejected the 17 charges of trespass — that the government had blundered in giving the land to the county instead of returning it to its owners.
Eva Rickard says she has been persistently abused by Pakeha for her stand, even to the point of receiving death threats. She does possess a vaunting sense of drama, but it seems she is speaking no more than the truth. On the first anniversary of the return of the land, the people of Raglan were still divided over whether justice had been done. Wayne Petchell, the chairman of the Raglan Domain Board, said the people of the township had good reason to dislike Eva Rickard because her activities, he said, had become more famous than the beaches and other facilities Raglan could offer visitors.
On december 18, 1951, John Broadbent, who was then a 23-year-old Auckland yachtsman, was working on his boat. He was at Okahu Bay, one of Auckland’s waterfront beaches, and was living on a friend’s boat next to his own. He was never to forget the sights he saw and the cries he heard that night.
Near the water’s edge at the head of Okahu Bay stood a Maori village beside a church and graveyard, which together were the only bits of land the Ngati Whatua of Orakei still owned. That day the government sent in men to evict the remnants of the Ngati Whatua who were still living in the village, and in the evening to pour kerosene over their homes and burn them down.
Here is how John Broadbent remembered it when giving evidence before the Waitangi Tribunal: “It is 35 years ago but it is still a wound in my side as I remember the smoke drifting across Tamaki Drive. The smoke was billowing and swirling and illuminated from all sides by the flames of collapsing buildings … Reports of an old man being dragged from the fire are wrong. He actually cast himself into the holocaust of his home.
“I remember vividly the wailing of the wahine and the confused shouts of the young. It could be clearly heard on the harbour. I have never forgotten that infamy. It is time the injustices the Ngati Whatua suffered were redressed.”
The fires John Broadbent saw in 1951 kept smouldering for at least 36 years until early July, 1988, when the Crown finally abandoned a long and deliberate policy of driving the Ngati Whatua off their land, a policy that erupted on May 25,1978, when about 600 soldiers and police backed up by bulldozers and helicopters arrested 222 protesters on Bastion Point and charged them with trespass.
The occupation of Bastion Point divided Auckland. Especially, it divided the Ngati Whatua, because ever since 1840 they had been relentlessly loyal to the Crown. The version of the treaty which three Ngati Whatua chiefs signed said that the Queen was keen “to avert the evil consequences which must result from the absence of the necessary laws and institutions” and from then on it had become conscious Ngati Whatua policy that the tribe would follow the law and work within the necessary institutions of government, even while, bit by bit, governments and city councils seized the last of their land and planned to ship them out of Auckland.
In using the law to protect their land from the compulsive acquisition of Crown and city, the Ngati Whatua petitioned the Maori Land Court eight times, went four times to the High Court, twice to the Court of Appeal and twice sought compensation. Six commissions or committees of inquiry heard Ngati Whatua pleas. Fifteen times they petitioned Parliament.
Once they managed to get Parliament to pass an act to protect their land from sale by members of the tribe and from compulsory purchase by the Crown. And all to no end. All that remained was a churchyard. And people still living in the district had been turned into state tenants paying rent for land they had been promised they could keep.
In 1977, when Joe Hawke and his followers set up their protest camp on Bastion Point, the Ngati Whatua elders, looking back on the empty harvest they had gained from following the law, might have thought the time had come for protest, defiance and trespass. Instead, they hid their eyes in shame, hating to see part of their former domain used to defy the Crown to which they had so diligently observed their side of the bargain.
The tribe’s first service to the Crown was to sell Governor Hobson the 3000 acres on which now stand Auckland’s downtown office blocks and the surrounding land that supports the city’s most convenient suburbs. The land stretches from Hobson Bay to the Whau Creek and back to One Tree Hill. For it Hobson paid £341. Six months later he auctioned off 44 acres for £24,275.
Hobson’s buyers had a good eye for land. They also wanted Remuera and Orakei, which are today the two richest suburbs in the country, and the story is that when Hobson’s men pointed at Orakei the reply came quickly back: Kahore! Kahore! (No! No!) These were the Ngati Whatua’s home acres, an isolated peninsula of beaches and cultivations protected on three sides by water, on the fourth by a steep ridge.
In selling land for the new capital, the Ngati Whatua were not being purely charitable. For many centuries they had lived near the Kaipara, Manukau and Waitemata harbours. But they were not a large tribe. Fewer than 2000 lived beside the Waitemata, and their old northern enemies, the Ngapuhi, numbered about 12,000. The Ngati Whatua hoped that if they inserted Hobson between themselves and the Ngapuhi they might feel less exposed to danger. They also gained prestige from his presence. Auckland may then have been the meanest collection of tents and hutments that ever called itself a national capital, but even so, the Ngati Whatua could feel complacent about having acquired such curious but clever neighbours, and the tribe gained power and influence from having such handy access to all the pomps and self-importances that attend any seat of government.
In return, the reliable loyalty of the Ngati Whatua helped Hobson, FitzRoy and Grey to secure their shaky foothold. In the 1860s, when war was growing inevitable, it was the Ngati Whatua who called a two-month conference of 200 chiefs to secure their support for the government. Without such friends the new colony could rapidly have become one of British history’s forgotten failures. But even by the early 1850s the Ngati Whatua chief Te Kawau could sense danger and was urging his people to sell no more land. (They had just sold 700 acres of Remuera for £5000, which the government resold for £100,000). In 1853, when farewelling Governor Grey, Te Kawau asked him: “Let this land (Orakeil be reserved for our own use forever, and let us have a deed so that it may be safe.”
Instead, they and all other Maori got the 1865 Native Land Act, one aim of which was “to encourage the extinction” of tribal ownership. If only one person sought an investigation under the act, the opposition of all the rest of the tribe was powerless to prevent the Native Land Court issuing certificates of ownership. But only 10 names could go on a certificate, which meant that those 10 gained the power that a tribal majority used to hold. Divide the land, divide the tribe.
Te Kawau’s successor, Paora Tuhaere, tried to thwart the 1865 land laws by having the Orakei Native Reserve Act put through Parliament in 1882. The act was designed to make Orakei land unsaleable forever, though leases were allowed, to give the tribe an income. But when Tuhaere died no new trustee was elected to follow him, and the act, which created the protection promised in the treaty, began to fade from memory. And this was hardly a wonder: during the 21 years from 1865 to 1886 Parliament had passed an average of three Maori land acts a year, creating such confusion that yet another law had to be passed to tidy away some of the resulting mess by declaring that all illegal sales to Pakeha were now legal.
In any event, in 1898 the court ignored the 1882 Orakei act by subdividing Orakei land into blocks ranging from 10 to 20 acres. The beachfront village remained common to all, but the rest was sliced up and assigned to named Maori owners. All that could now happen was that the tribe’s estate would fall apart.
Ten years later, rescue seemed to come, just when the Pakeha tenants of the Ngati Whatua were urging the government to make them the outright owners because, they said, the Maori owners could never afford to compensate them for the value of houses they had built on Orakei leasehold land. The would-be rescuers were Sir Robert Stout, the Chief Justice, and Sir Apirana Ngata, an MP two members of a commission which had been ordered to advise the government on what Maori land the owners no longer needed. On their say-so, with or without the owners’ consent, the government could put “excess” Maori land up for sale. Stout and Ngata questioned the Native Land Court’s power to override the Orakei Native Reserve Act, recommended that 85 acres of village and surrounding land should be reserved for Maori occupation, that leases covering 496 acres should be validated and that the remaining 63 acres should be leased.
With this the last stronghold seemed secure, but in 1910 the Auckland City Council was on the attack: Okahu Bay, with its 85 acres of Maori village, became the site of Auckland’s main sewage outfall. By early 1911 a great concrete pipe (it is eight feet six inches high inside) had been laid across the head of Okahu Bay between the village and the beach. The outfall went into the sea off the eastern headland of Okahu Bay, and on a falling tide there was a brown pathway across the sparkling Waitemata as the ebbing stream carried the city’s effluent across to North Head and out into the Hauraki Gulf. Inside Okahu Bay, between the pipe and the sea, a reinforced concrete wall was built so that spoil could be laid around and over the sewer pipe to create Auckland’s waterfront drive. The Okahu Bay section of the drive was completed in 1921, blocking the natural drainage of rainwater so that water banked up after rain and turned the village into swampland.
Since 1912, though, the government had granted itself the right to be the sole buyer of individual interests in any block of Orakei land, and by the end of 1914 the government had bought 460 acres. The Ngati Whatua have ever since been called willing sellers. To this they reply that once a few sellers got rid of their shares, the rest had a cuckoo in their nest, making the remaining owners decide to escape with what they could. Anyway, in due course no choice remained. Under the law of the time, once most shareholders had sold, the remaining shares could be bought compulsorily.
The government’s plan was to turn all of Orakei into suburban land. The tip of the western ridge (the site today of super-expensive Paritai Drive) would be used for costly private houses; the rest would be covered with state houses for working class tenants. By 1927 all but 12.5 acres was in government hands. All that remained was the Okahu Bay village, which was becoming an affront to the eyes of the people now living in the comfortable neighbouring suburbs of Mission Bay, Kohimarama and St Heliers. So, at Okahu Bay, the remnants of a throttled tribe clung, their tenure made uncertain by constant government pressure to sell, their land turned to bog, their houses disintegrating, the city council refusing them renovation permits, council inspectors tut-tutting at their insanitary ways (they had not been connected to the sewer pipe that created the swamp) and councillors calling their village a centre of disease.
The very presence of the settlement was discouraging people from buying the costly suburban sections up on Paritai Drive ridge, and advertisements in 1929 had to assure possible buyers that there was no need to worry, the Maori would soon be driven off. “Perhaps it is not known,” said the advertisements, “that the Maori settlement is to become a marine park.”
The Ngati Whatua petitioned Parliament, and in 1930 Judge Acheson inquired into what had been happening at Orakei. Previously he had been secretary of the Native Land Purchase Board, and afterwards he recorded his opinion of how the board had bought up Orakei: “I felt ashamed at purchase happenings but was helpless to intervene.” Now, in 1930, he began to feel helpless again when the Crown refused to produce land-transfer records for the 1914 purchases of the Orakei farmlands. When Acheson asked for the records the Crown solicitor could have turned to a higher court for a ruling on whether the records had to be produced. Instead he walked out of the inquiry. Acheson’s comments on the Crown’s disappearing trick were to come true: “A most unfortunate impression will be left on the minds of the natives interested. They will feel that the Crown has placed a blanket over the matters at issue. The Maori are most persistent if they feel they have not been fairly treated.”
Two years later the Ngati Whatua were still asking whatever had become of the Acheson report and why it had never been published. In reply the Government set up another inquiry which decided that housing was not the best use for the village site in Okahu Bay, and that the Maori’s idea of a 40-acre model village and pa was unrealistic.
With the Prime Minister, Michael Joseph Savage, overseas, the government decided in 1937 to evict the 79 remaining adults and 48 children. Returning, Savage cancelled the decision and set up a royal commission. The key question was whether anything in the law had prevented the Native Land Purchase Board from buying Orakei, and, if the answer to that was yes, whether that defect had invalidated the sales. At the time the law said that the Native Land Purchase Board must first discover whether a sale would leave a Maori without enough freehold land “for his adequate maintenance”. If it would leave the owner bereft, the land should not be bought. But not to worry, because if the land purchase board went ahead and bought the land, its failure to observe the law was not to make the purchase invalid.
The commission ruled that the Crown should not have bought some land because the sales had made some Maori landless, and that in 13 out of 36 purchases the Crown had paid less than a fair price.
This was 1939. The government increased its payments to the underpaid and turned its attention to the 1939-45 war. So next year, when the Auckland City Council asked the government to move the Orakei Maori to West Tamaki, the government’s mind was elsewhere, and it took until 1943 before the government acted. Savage had proposed some state houses for Okahu Bay Maori up on the eastern ridge overlooking the village they would not leave. Nothing happened. In 1949 the Labour Government was fired and in swept a new government which took the Public Works Act to the Maori and compulsorily bought them out. Except for the church and graveyard, the Ngati Whatua of Orakei were now homeless. Twenty-seven state houses were built on the eastern ridge, but the problem was to move the people up into them.
Some went without force and, as they left, their houses were pulled
down behind them. Others, now trespassers, remained. In the end they were hauled away by night and their homes torched.
By midwinter of 1952 no sign of the village remained. The land was levelled, though not particularly well, and grass seed was planted. Thirty years later the drainage was improved, and now the grass is growing as well as anywhere. Behind the church a children’s playground has been built. But in return for the grass and the playground the country acquired a quarter century of more bitterness, hidden at first, then exploding when Joe Hawke and his followers occupied Bastion Point.
Bastion Point is the tip of a ridge that at its seaward end acts as the platform for the Savage Memorial. Behind it is a parking space used in the daytime by tourist buses and at night by young lovers, or those who want to rob young lovers. Behind that again rolls downland, 60 acres of which in 1977 was classified as “uncommitted Crown land.”
In 1976 a new Government announced that the land was no longer uncommitted. Seventeen acres would be sold for private housing, one acre would be kept for a Youth-line hostel, 22.5 acres would be added to the parkland that lies above Bastion Point, and 17 acres would be “subject to further consideration,” with hints that it might be used for more Maori housing.
A confused coalition joined Joe Hawke. The groups had different aims and reasons, but were united in opposing the sale of 17 acres for private housing. In protesting, Joe Hawke split the Ngati Whatua, whose elders opposed his abandoning the tribe’s way of doing things through “the necessary laws and institutions”. The division in the tribe could have been a warning to the government that any agreement with the elders might be only temporary because it would not be accepted by the young. No matter. The government and the elders came to an agreement: the Ngati Whatua would accept 27 houses, 12 acres for more houses and 10.25 acres as private open space. They could have it all for $200,000 — a giveaway price — and seeing they had no money they would borrow the $200,000 from the Maori Trustee.
Twenty-two and a quarter acres plus 27 state houses may never be the equal of 700 acres. On the other hand it can also be argued that the transfer of land was an outright gift by the government, especially considering that successive governments had (after a nudge by a commission of inquiry) paid a fair market price. But either side of this argument becomes a niggle when put beside the immeasurable gain the elders had achieved. The property was made Maori freehold land, and by special act of Parliament was made unsaleable. A tribally elected board holds the land as a perpetual estate.
So, 113 years after the 1865 act had so candidly set out “to encourage the extinction” of tribal ownership, the Ngati Whatua people became the first modern Maori to own their estate in the customary manner, with their own special act acknowledging their unique relationship with the land of their own district.
There still remained the Bastion Point trespass to deal with. Instead of being charged in the Magistrate’s Court, the protesters appeared before a Supreme Court judge, which allowed them to broaden the scope of their defence. The Crown won handsomely. There had, said the judgement, been no chicanery in the Orakei land-purchases. The land had been bought after open-handed ne gotiations. The Okahu Bay evictions had been done in good faith. The purchasers gave no impression of trying to disadvantage Maori.
In a commentary on the case, Professor Brookfield, now dean of Auckland University law school, remarked that at the heart of the Ngati Whatua grievance lay complaints that were not justiciable, a word that opens a window on to a whole landscape of fresh perceptions as to what a system of justice ought to provide for. Brookfield seemed to be saying that the Ngati Whatua were not complaining about the details of every process governments had gone through in acquiring Orakei. Instead, Ngati Whatua were complaining at policy, not performance. They were asking: Why had the Crown decided it must own Orakei? But this was the unjusticiable question. The court could not consider it.
The court’s arm ordinarily does not reach out to government policy, only to the performance of that policy. As with the sewer at Waitara, responsibility had been so precisely delineated that there was no onewho could take the broad view.
But in 1985 that “someone” appeared. The Treaty of Waitangi Amendment Act allowed the tribunal to review current Government policy and laws written since 1840. The “necessary institution” had arrived, and the Ngati Whatua could heal their own rift: now the elders supported the Hawke group in taking a claim to the tribunal.
It is worthwhile first to list what the Ngati Whatua failed to gain. In their claim they said they were not asking for the 700-acre Orakei block back, because they knew the tribunal were obliged to make practical recommendations and wanting it all back was no longer practical. To this the tribunal replied by quoting one of their earlier findings: “It is out of keeping with the spirit of the Treaty that it [the tribunal] should be seen to resolve an unfair situation for one party while creating another for another.”
The tribe did claim the Crown-owned public parks of Orakei, but did not seek the exclusive use of them. Clubs using the Okahu Bay sports grounds could continue to lease them on unchanged conditions. Parkland would remain open to all people, freely.
The tribunal were also asked to recommend pardons of past convictions on the Bastion Point protesters, but the tribunal refused, saying that the protesters’ invasion of Crown land was a breach of the spirit of the treaty, which required that each partner should respect the other’s rights.
Fairly quickly the government accepted the tribunal recommendations. The open land behind Bastion Point is again owned by the tribe, as are the park and sports grounds in Okahu Bay. And they remain as open to the public as ever they were because continuing public access was a condition of settlement. The city council continue to care for the parkland as they did when it was Crown-owned.
And to give the Ngati Whatua the economic base they could have achieved if only the land court had not overridden the Orakei Native Reserve Act, the Government gave the tribe $3,000,000.
The settlement of the claim included other small grants of land, but in the end the main point was that the Ngati Whatua people dedicated the best and greatest part of their land to the free pleasure of all who care to use it. A visitor to their land can look and find no tablet, cairn or notice that records any public gratitude for the Ngati Whatua’s gift of hospitality.
It has become common among Pakeha, when they feel confident that they are among people who share their own ideas, to shrug off or to grow indignant about the treaty promises both sides exchanged in 1840, and to talk as if there were some kind of rule that says promises and contracts last only as long as they are convenient or as long as one side is so weak that its rights can be ignored.
With this feeling runs a homesickness for the days when Pakeha believed that New Zealand led the world in achieving a racial blending in which all people had equal opportunities. However much self-deception there was in that, it is always a shock to have to change ideas, especially when they are old and cherished, and even more so when it begins to dawn on people that hard work lies ahead in making more adjustments.
The two chief adjustments that people are now having to go through concern land and fisheries. As these words are written, groups of Maori are claiming fishing rights all around the coastline and far out to sea, and are asking the government to give them back government-owned land which, they claim, was wrongly taken from them. Many Pakeha react by saying that in extending the powers of the Waitangi Tribunal right back to February 6, 1840, the government has raised unrealistic expectations among Maori.
And up to a point this is entirely right because, as the law now stands, many Maori are going to be disappointed. The Treaty of Waitangi Act strictly limits the tribunal in what it can recommend. Once land goes into private ownership — no matter what race the owner belongs to — there is no way it can be taken away from the present owner and given back to a previous owner. The most the tribunal can do is to suggest that the government could offer to buy especially sacred land, a burial ground for example, from a private owner and then to pass it back to a tribe. But the government could refuse to make an offer, and even if it did the owner could refuse to sell. But before things came to that stage the tribunal would first have to be convinced that the injustice being complained of had first been caused by some government action. On top of that, the tribunal is also limited to the practical application of the principles of the treaty. That is to say, the tribunal is not to concern itself with narrowly interpreting the exact words of the treaty, but with its underlying ideas, and it is not to seek an ideal application of those principles but must look for practical answers.
Some people claim that in limiting the tribunal to the principles and not the precise promises of the treaty the government is trying to sell the Maori short. Not so, say their opponents, and they give fisheries as an example. They say that the entire New Zealand fishery is now much larger than it was in 1840, that in every year now many more fish are caught than in 1840, and that it must be possible to preserve traditional Maori fisheries and to grant part of the entire New Zealand fishery to non-Maori people.
But people who take a more extreme ground resist altogether the idea of any Maori fishing rights. They say it is a form of apartheid to grant fishing rights according to skin colour. But this argument ignores the idea that fishing rights were guaranteed to the tribes not because their members were brown, but because they were already the owners, and that they traded the right to govern in return for promises that their property rights would not be disturbed against their will.
The idea of exclusive fishing rights is hard for Pakeha to live with. Many of them have ancestors who were glad to escape the British custom of letting rich men own the right to fish for trout and salmon. They have rejoiced in the idea that here rich and poor can share in rivers. But if they were glad to be rid of one British tradition they have insisted on transplanting another, which is that the sea is open to all who want to fish in it, and that all people are equal before the laws of sea fishing.
The lesson that this is not so in New Zealand began to unfold on a summer afternoon in 1984 on a North Canterbury beach called Motunau. Two fisheries inspectors stopped a man called Tom Te Weehi and asked to look in his bags. Tom Te Weehi waved a stick, told the fisheries inspectors to leave him alone and said the inspectors should be concentrating on commercial poachers. When the inspectors had calmed him down they found he had 49 paua. All but three were under the legal minimum length of 125mm. A District Court judge convicted him of taking undersized paua, but he appealed to the High Court, which heard that he came from the East Coast of the North Island and was of Ngati Porou descent.
The Ngai Tahu tribe, which is spread over most of the South Island, claims fishing rights over Motunau beach, and Tom Te Weehi said he had been given permission by a local Ngai Tahu elder to fish at the beach.
If he had been caught just two years earlier the High Court would have rejected his appeal. But in 1983 a new fishing law had been passed which said: “Nothing in this Act shall affect any Maori fishing rights.” This was the law he had been convicted under in the District Court, and now he was telling the High Court judge that he had been given permission to share in a Ngai Tahu right to take fish at Motunau no matter what the new Fisheries Act said about legal minimum sizes, because the very same law exempted Maori fishery-owners from having to obey the law.
The judge accepted this argument and cancelled the District Court judge’s decision that he was guilty. The High Court decision set off rumbles that have not yet settled down. Some Pakeha are still asking: “Have we now come to the point where laws are decided by colour?” and so far not many are replying that, no, rights are not being decided by colour; instead, the law is protecting rights of ownership.
Aftershocks from the Te Weehi case were still being felt when the Waitangi Tribunal agreed with the Maori of Northland that they had proved they used to fish far out to sea. The tribunal recommended that the government should now ask the Northland tribes for a public share in the Northland fishery. As a first reaction, commercial fishermen sounded outraged because they thought they risked being excluded from the rich northern seas. The largest fishing companies were the first to see that they could survive a sharing arrangement and at the moment the big companies seem, in broad outline anyway, to accept the inevitability of being partners with the owners.
It would be a fair bet, though, that this watering down of the promise of “full, exclusive and undisturbed” possession of Maori fisheries will be resisted by people whose opinions are at either end of the scale. Some will continue to say that with the tribunal limited to finding practical answers that fit the principles and not the precise promises of the treaty, the lawmakers have once again diddled the Maori of their written, guaranteed rights. And people at the other end will ignore the idea that Maori people are willing to share their guaranteed rights, and instead will complain that to protect even part of the owners’ rights is to open the door to apartheid.
It is entirely likely that these differences of opinion will never be overcome, and it may turn out that this would be no bad thing. Decades of complacency have screened grievances that have survived one and a half centuries and are only now being brought into the light and discussed openly by both partners. Acceptance of differences is part of the exercise of achieving maturity.
One day when he was looking back over years of scholarship and political leadership, Sir Apirana Ngata summed up his own opinion of the blessings that the treaty had given to all the people of New Zealand. The benefits of that first Waitangi Day is a topic much ignored today, and Ngata’s ideas, first published in 1922, continue to apply.
One of his points is that, just before the treaty, 500 escaped convicts from Australia were living in the Bay of Islands and that in the brief time between the arrival of missionaries and the signing of the treaty, missionaries recorded a thousand Maori people murdered by Europeans and an unknown number of Europeans murdered by Maori. Maori tribes were fighting Maori tribes. Europeans were crowding in to buy land and “many claims were made by various Europeans for the one piece of land sold to each of them by various Maori chiefs. “Where,” asks Ngata, “was the law in those times to decide what was right?”
And in the question lies the key to Ngata’s argument. “These,” he says, “were lawless times.”
The Europeans had escaped the control of British law and the Maori themselves, he says, lacked “unified chiefly authority over man or land.” They could not “make laws to govern the whole of the Maori race.” But, he argues, by inviting the Queen to govern, the Maori gained a united administration that works to follow Parliament’s “laws for the people, for the land, for health, for sickness, for crime, for good order and for everything pertaining to the well being of all.”
Nowadays, interest in the Maori Land Court turns more on its failures than on its successes. Looking on its good side, Ngata says: “At the time of the Treaty the chiefs and tribes were disputing among themselves the titles and the boundaries between their lands. They fought … to take by conquest the lands of others, or to bar the way of others intent on conquest.” The treaty itself, he says, took away no land. Instead it made ownership permanent, and later the Maori Land Court clothed the land with title and gave certainty of ownership.
Ngata was not blind to injustices over land. He may, though, have felt injustices less keenly than other Maori because, partly through his own leadership, his own people, the Ngati Porou in the Gisborne and East Coast district, still hold large blocks of land. But his own opinion was that the injustices came from politicians and did not inevitably flow from the treaty itself.
In his own counting of the blessings of the treaty he keeps his greatest enthusiasm for the third part of the treaty in which Queen Victoria extended her protection to the Maori people and gave them all the rights and privileges of British subjects. Equal standing in law, writes Ngata, “represented the greatest benefit bestowed upon the Maori people.”
The days of the treaty, he adds, “found the strong committing outrageous acts against the weak, the chiefs against the commoner, the Pakeha against the Maori” but now all were equally treated and equally obliged to keep away from criminal behaviour and equally treated if they broke the law. And this “greatest benefit”, he writes, is the gift that in large measure balances the sovereignty the Maori gave away.
As we move towards more fairness and settling of some old worries during and after the 150th birthday of the treaty, people can still help themselves to a fair slice of pride over many — maybe most — of the things that have happened since the first Waitangi Day. Life today offers more variety and experience. It runs on a richer mixture and it lasts twice as long.
Underpinning it all is the system of law that made Sir Apirana Ngata rejoice — not a perfect system but a great advance on what Ngata called the “lawless times” before the treaty. And one of the greatest strengths of the system is that it lets people expose and denounce its faults. In other countries, governments still imprison and kill citizens who ask for the very system that we criticise, take for granted or forget.
So there’s an achievement. And we have it because of the treaty.
Laws are slow to change because governments are stiff and heavy in their movements. But our laws and the way we use them are developing a style of their own, a style that belongs here, and the Waitangi Tribunal is part of this distinct development. One of the effects of the tribunal, an effect that seems to have passed unnoticed, is that, as at Waitara and on the Kaituna River, it has been able to step in where other tribunals, appeal authorities and courts have failed to break the logjam of long-running disputes, and has been able to put constructive suggestions that allowed the people who were arguing together to see ways of finding solutions to their disputes.
If the tribunal continues to find pathways that people can walk together, it may be that its own style of letting people talk instead of forcing them to argue could spill into other areas of our law. In time, other courts and tribunals may yet shift their emphasis from finding winners and losers and turn their efforts more towards bringing people together in a search for answers that both sides can live with.