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Ethnicity, Religion and Culture Based Exclusionand Discrimination in Aotearoa/New Zealand

Martin Fuchs

Antje Linkenbach

Working Paper Series

Indian Institute of Dalit StudiesNew Delhi

2010

Foreword

Indian Institute of Dalit Studies (IIDS) has been amongst the firstresearch organisations in India to focus exclusively on developmentconcerns of the marginalised groups and socially excluded communities.Over the last six year, IIDS has carried-out several studies on differentaspects of social exclusion and discrimination of the historicallymarginalised social groups, such as the Scheduled Caste, ScheduledTribes and Religious Minorities in India and other parts of the sub-continent. The Working Paper Series disseminates empirical findingsof the ongoing research and conceptual development on issues pertainingto the forms and nature of social exclusion and discrimination. Some ofour papers also critically examine inclusive policies for the marginalisedsocial groups.

The working paper “Religion and Culture Based Exclusion andDiscrimination in Aotearoa/ New Zealand” is taken out from the reporton Exclusion and Discrimination based on Ethnicity. Drawn from thecountry report of New Zealand, the paper looks into ‘Treaty of Waitangi’which not only scribed the diction of modern New Zealand but is alsoknown to have affirmed sovereignty of the British Crown. The paperinterestingly draws focus on the impasse arising out of the translationof the Treaty Document as a subject of continuing interpretations;whether or not the Treaty guaranteed sovereignty to the British crown.The original Treaty Document signed by Tribal leaders in Maorilanguage was a translation of the draft of English version. The Englishand the Maori versions of the Treaty being different, over the period ofincessant attempts led toward variant inter pretations. Over the period,to arrive at consensual translation of the content of the Treaty led tolegislative negotiations on the principles and the content of Treaty.This paper, toward the latter part reviews strategies and constitutionalsafeguards which has to an extent relegated importance of the centralargument set forth initially, that is the consequences of translation ofdiffering versions of the Treaty and therefore overlooks the concoctedlegislative programmes and policies.

Indian Institute of Dalit Studies gratefully acknowledges Action Aid forfunding this study. We hope our working papers will be helpful toacademics, students, activists, civil society organisations andpolicymaking bodies.

Surinder S. Jodhka Director, IIDS

Contents

1. Introduction 1

1 . 1 Treaty of Waitangi (1840) 3

1 . 2 Colonial Land Appropriation and Maori Resistance(1840s – 1960s) 4

1 . 3 Maori as Indigenous People 7

2. Contemporary Significance of Treaty of Waitangi:Justice Claims and Social Equity 8

2 . 1 Contemporary Significance of the Treaty ofWaitangi: Fair Treatment and Biculturalism –Treaty of Waitangi Principles 1 0

2.2 Government Statement of Principles of the Treaty (1989) 1 0

2.3 Interpretations of the Principles 1 1

3. Peculiarity of the New Zealand Case – theDouble Status of Maori 12

3.1 Reparative Justice –Waitangi Tribunal andMaori Land Claims 1 4

3.2 Distributive Justice 1 6

3.3 Equal Opportunity or “Affirmative Action” Policies(1970s until 1990) 1 7

4. Critical Inventory: Current Situation of Maori inAotearoa/ New Zealand 1 7

5. Strategies, Programmes, Fields of Action to EnhanceSocial Equity (since the 1990s) 2 0

6. Political Representation of Maori: Maori DevelopmentMinistry and Maori Reserved Parliamentary Seats 2 3

6.1 Other Legislation with Specific Reference to Maori 2 3

7. Cross Current: Restraining Maori Rights 2 4

Ethnicity, Religion and Culture Based Exclusionand Discrimination in Aotearoa/New Zealand

*Martin Fuchs

**Antje Linkenbach

1. Introduction

In order to understand the contemporary situation of Maori in NewZealand, it is necessary to track the milestones in the history of Aotearoa /New Zealand and look at the changing relationship between Maori andwhite New Zealanders. Archaeological evidence shows that Maori havearrived in New Zealand between 800 A.D and 1300 A.D via sea-going canoesfrom eastern Polynesia. Their language is classified as Eastern Polynesianlanguage and the Maori name of New Zealand is Aotearoa (Land of the longwhite cloud). The Maori way of life was based on a mixed economy: hunting,and gathering, fishing and cultivating kumara (a variety of sweet potato).The materials used for clothing, housing, ornaments, carvings, and weaponswere bark, feathers, flax and greenstone; no metal was processed. Thematerial culture showed high craftsmanship.

* Martin Fuchs is Professor of the History of Indian Religions at the Max

Weber Center for Advanced Cultural and Social Studies at the University

of Erfurt, Germany. He was previously Associate Professor in Anthro-

pology at the School of Social and Political Sciences at the University of

Canterbury, Christchurch, New Zealand. He is also a visiting faculty at

IIDS, New Delhi.

* * Antje Linkenbach is a visiting scholar at the Max Weber Center for

Advanced Cultural and Social Studies at the University of Erfurt, Ger-

many. She is also Adjunct Senior Fellow at the University of Canterbury,

Christchurch, New Zealand, and Adjunct Professor of Anthropology at

the University of Heidelberg, Germany.

Indian Institute of Dalit StudiesVolume IV, Number 06

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Social structures were based on kinship relations; the key institutions beingiwi (tribe), hapu (sub-tribe or kin-group) and whanau (extended family).Maori society was stratified with ariki (chiefs) enjoying superior rank.However, rangatira (active heads of each extended family) and kaumatua(elders) had considerable authority in their own right, with that qualifyingthe power of the chiefs. Important in Maori society were, and still are, theconcepts of mana and tapu. Mana designates spiritual potency andtherefore prestige, power and authority. A person, who possesses mana, isconsidered to be tapu, i.e., the person as well as objects related to him/heris out of bounds because of ceremonial restrictions. Places can also betapu (wahi tapu; sacred places, burial grounds). Knowledge and teachings(genealogies, epistemologies, techniques, moral prescriptions, laws, andarts) were passed on orally. Maori are famous for their dance formsincluding haka, as well as for ta moko (tattoo).

The first European adventurers and explorers reached New Zealand in the17th century, but in the 18th century the visits were more frequent. JamesCook touched New Zealand on his three Pacific voyages in the 1770s.European sealers, whalers and traders flowed from Britain, New SouthWales (Australia), France and America. Whalers went ashore during thewinter months; they were the first Europeans to settle permanently in NewZealand (North Island); many took Maori wives and blended with localMaori society. Trading between Maori and white adventurers becameregular; trading stations were established especially in the North Island,and European goods, including guns and metal tools, were given inexchange for food, flax, timber and sex 1.

Lasting influence on Maori society came through the missionaries whostarted proselytising in 1814. However, missionaries did not only bringthe Bible (the first translation of the Bible into Maori was published in1827), but introduced different farming methods, metal tools and westerneducation (reading and writing); trade in European weapons and musketsbecame widespread since 1815. Scholars of Maori History (Ward 1995,Alves 1999) agree that Maori were extremely receptive to Christianity andWestern education brought by the missionaries. They linked success andpower of the white people, their wealth and growing numbers with thesupremacy of their god and with literacy. Despite incidents of violencebetween Maori and outsiders at the time of initial contact, co-operation

Ethnicity, Religion and Culture Based Exlusion and Discriminationin Aotearoa/New Zealand

Martin Fuchs and Antje Linkenbach

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and mutual respect eventually developed. However, European diseasesagainst which Maori had no immunity took their heavy toll.2 Pre-EuropeanMâori had no distance weapons and the introduction of the musket had anenormous impact on Mâori warfare such as the practices of utu (revenge),which became more intense. After 1828, missionaries were accepted asmediators in feuds, which raised Europeans to a new status, and someMaori affirmed Christianity to escape the obligations of utu. Increasinglymissionaries witnessed the end of customs (like cannibalism, polygamy),as part of their “civilizing mission”. During the early days of Maori-Pakeha3

interaction, New Zealand was under the administration of New South Wales(Australia)4. In 1831, when France showed interest in New Zealand, theBritish government appointed James Busby as Official Resident (1832).New Zealand became a colony in its own right on May 3, 1841, followingthe signing of the Treaty of Waitangi, considered to be the foundingdocument of Modern New Zealand.

1.1 Treaty of Waitangi (1840)

The early history of Maori – Pakeha interaction showed that Maori engagedwith the wider world (European explorers, traders and missionaries)“eagerly, creatively and reflectively” (Ward 1995: VIII). Gradually, Maoriimbibed European culture, education, armoury, which initially was seenas an advantage in the inter-tribal rivalries, but soon realised that theywere losing control.

The number of Europeans increased rapidly with settlers arriving in NewZealand and land transactions became frequent. In 1839 the New ZealandCompany5 bought large tracts of land in the North Island; some Maorichiefs started seeing land as a commodity and began selling it by ignoringthe rights of their kin6. The majority of Maori was critical of this andconsidered it in their own interest to have a central authority regulatingcommerce and land issues. The British too did not favor an uncontrolledand conflict prone settlement process. Humanitarian groups in the Britishgovernment (who had successfully fought for the abolition of slavery in1833) became increasingly anxious about the future of Maori, especiallyin view of the negative experience with settler colonies like Australia, whereindigenous people were enslaved or simply killed. Maori interests and thoseof the British Crown merged and led to the signing of the Treaty of Waitangi(Te Tiriti o Waitangi) in 1840.7


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On February 6, 1840, Governor Hobson, the representative of the BritishCrown, and 39 Maori tribal leaders met in Waitangi and agreed to adocument, which was to become the key document in the history of modernNew Zealand. Hobson’s phrase “He iwi tahi tatou” (we are now one people),enunciated at the time of signing the Treaty, has been interpreted by theHistorians as a gesture of invitation to embark on the common enterpriseof nation-building. Between February 6 and September 3, 1840 copies ofthe treaty were taken around the country and about 500 Maori leaderssigned the document.

The original Treaty document, which was signed by the tribal leaders in1840, was formulated in Maori language; it however was a translation froman English version. As the English and the Maori versions differsignificantly, the Treaty became subject of continuing interpretation anddebate.8 The major point of legal contestation became whether or not theTreaty guaranteed sovereignty over the country and its inhabitants to theBritish Crown. The English language document ceded sovereignty to theCrown, and simultaneously accepted Maori ownership of their lands andother properties owned individually and collectively, as long as they wishto retain them in their possession. The Document also guaranteed Maorisall the rights and privileges of British subjects. The Maori version of theTreaty does not transfer sovereignty, but only kawanatanga,transliteration of the English word “governorship”. Maori were confirmedthe entire rangatiratanga, which meant at least chieftainship in theirlanguage; but it was at that time also used by the British to translate“kingdom”, “independence” and “sovereignty” (Ward 1995:44). Thecorrelation between the concepts of sovereignty on the one hand andkawanatanga and rangatiratanga on the other, so central for theinterpretation of the Treaty and the future of the country, remained awfullyunclear and led to misunderstandings and disagreements between theBritish and the Maori.

1.2 Colonial Land Appropriation and Maori Resistance (1840s– 1960s)

The acceptance of the Treaty by Maori tribes was linked with the promiseof the Crown to protect the tribal land. However, with the continuous influxof settlers, land demand increased as well as the pressure on Maori to sell



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their land. The New Zealand Land Claims Ordinance of 1841 guaranteedmonopoly of land purchase and lease to the Crown. During his firstgovernorship (1845-1853) George Grey succeeded to purchase 130,000km² land from the Mâori (NZ has an area of 270,000 km²). Though pre-emption rights protected Maori from uncontrolled private landacquisitions, it also prevented them from seeking more favorable terms ofselling, thereby marginalising the tribes economically. The Maori soonrealised that they were depleted of land and resources while Britishsettlements expanded rapidly. This triggered Maori protests (concentratedin the North Island) against the British colonisers; both individual actions9

and collective movements.

The King Movement (Kingitanga) in the 1850s was the first multi-tribalmovement. In 1858, Te Wherowhero was installed as the first Maori king.It was believed that by instituting a monarch, the Mâori would be able toconfront the colonisers on equal footing and uphold the remaining land onthe North Island. The establishment of the monarchy was also designed toachieve unity among all tribes of the two Islands and thus weaken thepotential, on part of the British, to “divide and rule”. The position of theMâori monarch is a non-constitutional role with no legal power in NewZealand, but it is a symbolic role invested with a high degree of mana(prestige).10 Other movements were localised and directed against particularCrown purchases. The regions of Waikato and Taranaki in particular facedviolent encounters between tribes and British troops, later known as NewZealand Land Wars (1860s and 1870s). In 1881, a religious movement ledby two prophets applied a strategy of passive resistance against theconfiscation of Maori land in the village of Parihaka11, but the resistancewas forcefully suppressed by British troops.

In the last decades of the century, the tribes lost substantial amounts ofland through The Native Lands Act 1862 and the activities of The NativeLand Court. The Act confirmed the guarantee of Maori customary landrights given in the Treaty of Waitangi, but the Court was established in1865 to convert them into legal land titles recognisable under English law.Due to its Eurocentric legal rules, high fees, its location remote from thelands in question, as well as unfair practices by many white land agents,Maori became increasingly alienated from their land.


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Since the1860s Maori demanded political representation as Britishsubjects. The New Zealand Constitution Act of 1852, which had grantedthe colony of New Zealand self-government, had established a system ofrepresentative government, with a General Assembly consisting of aLegislative Council appointed by the Crown and a House of Representativeselected every five years by males above the age of 21 who owned, leased orrented property of a certain value. Although voting was not forbidden toMaori by color or race, the majority could not qualify under the propertyrequirement as Maori possessed their lands communally. In 1859, theBritish Crown Law office confirmed that Maori could not vote unless theyhad individual title granted by the Crown.

In 1867, the Parliament agreed to set up four electorates specifically forMaori, three in the North Island and one in the South Island. All Maorimen over 21 years of age were eligible to vote and the first election forMaori members took place in 1868. The Maori seats were only meant to bea five-year trial, but in 1876 they became permanent. The small number ofMaori who owned individual freehold land was still allowed to vote in theEuropean electorates.12 With only four Maori members of Parliamentstanding against a majority of European MPs (70 in 1890) Maori felt thattheir interests were not sufficiently represented in the main Parliament. Inorder to mobilise political influence, Maori engaged in the Kotahitangamovement, which reached its heyday in the 1890s. The KotahitangaMovement supported the formation of large tribal councils and a nation-wide Maori Parliament to link them. The Maori Parliament was neveracknowledged by the white government.

Ending any further appropriation of their land was of primary concern forMaori and motivated their various political struggles and interventions.In the later decades, prominent and highly accomplished Maori politicalleaders (James Carroll and Apirana Ngata) managed to exert some influenceby successfully forming political alliances. The Maori Party was foundedin 1900 and after 1930 Maori members of Parliament were linked with oneof the most widespread religious movements, the Ratana movement,wherein they brought forward tribal land issues by referring to the Treaty.Yet the parliamentary processes were never in favor of Maori and theirclaims, as settlers continued to control the government and the legislature.Until the end of the 1960s there were no changes, which happened only



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after Maori protest revived and became largely apparent in the context ofpolitics of cultural identity and the movement for indigenous rights.

1.3 Maori as Indigenous People

Maori regard themselves as indigenous people according to the workingdefinition of the UN Working Group of Indigenous Populations. Towardsthe 1970s Maori became increasingly conscious about their identity asfirst people and asserted their recognition and rights. Since the 1840s, theCrown Policy in New Zealand was governed by concepts of “amalgamation”and “assimilation”. Maori tribal people were expected to give up theirtraditional ways of life and successively merge with the white settlerpopulation. Cultural assimilation was inculcated through trade, Christianmission, English language and formal education. Although the New ZealandConstitution Act of 1852 provided for the establishment of Native districts(which would recognise Maori authority over their own affairs), the thenGovernor. George Grey refused to declare such districts. The reduction ofMaori autonomy and ownership over land and resources was anotherimportant means to endorse assimilation. Especially the decades followingthe 1950s saw a rapid urbanisation process (in 1999 80 per cent of theMaori were living in cities). Although the post-war economic boom andstate welfare programs13 offered some chances for Maori too, urbanisationresulted in further economic marginalisation. As formerly rural peopledepending on land and natural resources, Maori did not have adequatecapabilities (e.g. education) to sustain themselves on the labour marketand soon found themselves among the urban poor.

Ideology and policy of assimilation were dominant until the 1970s. At thattime Maori openly began addressing and questioning it and also restartedformulating their land claims and demands for autonomy. By rejectingassimilation, Maori emphasised that they were not mere “brown-skinnedPakeha”, a minority among other minorities in New Zealand; but assertedtheir status being indigenes of the country and propagated a policy of ethnicseparation. Maori constituted and constructed themselves as indigenouspeople of New Zealand, fundamentally distinct from white New Zealanders– the Pakeha. Maori developed new awareness for their language and theircultural heritage which – revived and/or (re-)invented - became thecornerstone of Maori identity. Since Maori had increasingly migrated tothe cities since the 1950s, the distinct Maori cultural life had to be adapted


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to the new urban conditions. Maori constructed Marae (sacred place orbuilding which serves both religious and social purposes) in the urbanenvironment, and in the late 1980s about 600 Marae were foundthroughout the country. Maori re-established their old ceremonies (e.g.the hui – formal gathering in the Marae), rituals in honor of the dead etc.The “Maori way” (taha Maori), Maoridom (Maoritanga), Maori custom(tikanga Maori), Maori language (te reo Maori) were concepts to underlinethe differences between Maori and the dominant white population, Pakeha.The idea of biculturalism – one nation, but two peoples – emerged.

To assert the status as indigenous people included to re-claim the specialrights guaranteed to Maori under Treaty of Waitangi: the right to land andresources and rangatiratanga of chiefs and tribes based on those rights.14

One of the most spectacular protest actions to bring Maori demands intothe public was The Land March (Maori land hikoi) in 1975. On September14, a large group of Mâori and other New Zealanders led by Whina Cooper,began a month-long march through the North Island to Wellingtonprotesting against Mâori land loss. They conveyed the message that Maorihad only 3 million acres land left out of 66 million which they had owned in1840. Gathering support at about 25 stops along the way, hikoi reachedthe capital on October 13, when five thousand people walked ontoParliament grounds and presented a petition bearing 60,000 signatures.

2. Contemporary Significance of Treaty of Waitangi: JusticeClaims and Social Equity

Contemporary Protest Movements and Parliamentary initiativesdemanding full acknowledgement of the Treaty of Waitangi and the rightsof Maori met with significant success. Since the mid-1970s Maori claimsagainst the Crown are being investigated by the Waitangi Tribunal, aGovernment authority that examines Maori land claims dating back to thefirst signing of the Treaty. The Waitangi Tribunal was established underthe Treaty of Waitangi Act 1975 (amended in 1985) as a PermanentCommission of Inquiry. The Tribunal process is inquisitorial with its aimto determine whether a claim is well founded. It makes recommendationsto the Government, which form the basis for negotiations between theGovernment and individual tribes (iwi) with respect to specific claims. Forthis, the Government established the Office of Treaty Settlements withinthe Ministry of Justice in 1995 (Sharp 1997: 298).



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Notwithstanding the problems which have arisen after the signing of theTreaty of Waitangi, it is widely considered fortunate for New Zealand tohave a founding statement of principles by which the relations betweenMaori and Pakeha can be mediated:

“It is strength rather than a weakness that the documentneeds constant interpretation by the Waitangi Tribunal andthe courts to meet constantly changing circumstances. Likeother first occupants world-wide, Maori have emphaticallyrejected assimilation into a homogenous New Zealandcommunity. Instead, relations between Maori and Pakehaneed to be continually worked at. It is likely that theoutcomes will always be dynamic, with inter-communalrelations having the potential to produce tension andconflict as in the past. But the Treaty stands as a balancedset of guidelines for developing a positive and fruitfulrelationship.” (Ward, 1999: 2-3)

The 1970s and the 1980s also showed a wider public acknowledgement ofthe need for social justice in New Zealand. A milestone was the year 1983:not only the Waitangi Tribunal made its first important Findings andRecommendations, but also the Government published the Booklet “Issuesin Equity” and the concept of ‘biculturalism’ entered public discourse. Thecontinuing current inequalities and non-repaired past wrongs with respectto the Maori population of New Zealand merged and resulted in an opendemand for justice.

With regard to the specific situation of Maori in New Zealand one needs toconsider two kinds of justice claims:

Reparative Justice:

“… the idea that a thing wrongly taken or destroyed mustbe restored or that a substitute good be provided, and thatcompensation be made for the lack of the good in the periodwhen it was wrongly absent” (Sharp 1997: 21).


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Justice in Distribution/Distributive Justice:

This is mainly called “social equity”. It refers to the ideal of equalopportunity, equal access to institutions which benefit those who enterthem, proportionality between contributions to society and reward,proportionality between rigidity of work and reward, proportionalitybetween need and share of social product, equal power to act in society.(Sharp 1997: 22) The clause “social equity” was used to refer to more thanthe Maori – Pakeha relationship; it included women in their relationshipto institutions and to men, other ethnic minorities, physically and mentallyhandicapped, indeed social equity was claimed for all “disadvantaged”.

The Maori claims for reparation and equity were specially backed by theTreaty of Waitangi, the document which serves as justification for claimingSpecial Treatment for Maori.

2.1 Contemporary Significance of the Treaty of Waitangi: FairTreatment and Biculturalism – Treaty of WaitangiPrinciples:

The Courts, the Treaty of Waitangi Tribunal and the Government haveformulated Principles regarding the meaning, intention and spiritunderlying the Treaty of Waitangi. These are considered to be evolvingwith changing circumstances and are dependant on interpretation. Theyrepresent standards of communication between the Treaty partners,especially to communicate actions of the Crown (Government). In fact,Maori institutions have not ratified any versions of these Principles.

2.2 Government Statement of Principles of the Treaty (1989):

In 1989, the Labour Government announced Principles by which it wouldact when dealing with issues arising from Treaty of Waitangi. 15 Theprinciples were:

• The Principle of Government (Kawanatanga):

The Crown is entitled to make laws and has the obligations togovern in accordance with Constitutional Process. Thissovereignty is qualified by the promise to accord the Maoriinterests an appropriate priority.



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• The Principle of Self-Management (Rangatiratanga):

It guarantees to Maori iwi the control and enjoyment of thoseresources and taonga that they wish to retain. The preservation ofa resource base, restoration of iwi self-management, and the activeprotection of taonga, both material and cultural, are necessaryelements of the Crown’s Policy of recognising rangatiratanga..

• The Principle of Equality:

It guarantees legal equality between Maori and other citizens ofNew Zealand. Special measures to attain that equal enjoyment ofsocial benefits are allowed by International Law.

• The Principle of Reasonable Cooperation:

It establishes duality and unity as significant elements for a fairpartnership of two people. Duality implies distinctive culturaldevelopment while unity implies common purpose andcommunity..

• The Principle of Redress:

The Crown accepts responsibility to provide a process for theresolution of grievances arising from the Treaty.

2.3 Interpretations of the Principles

The Government definition of the Treaty Principles is very restricted.The Courts as well as the Tribunal have provided interpretation of thePrinciples that are more comprehensive than that given by the Government.

The Court of Appeal 1987:

“In 1987, a case was brought to the High Court by the New Zealand MaoriCouncil and its Chairman, Sir Graham Latimer, who applied (the applicationthen being transferred to the Court of Appeal) that, despite Section 27 ofthe State-Owned Enterprises Act 1986 (which dealt with land subject toclaim under the Treaty of Waitangi Act), the Crown was able to transfer toState enterprises lands that were subject to claims to the Waitangi Tribunallodged after 18 December 1986 (as well as claims that were not yet lodged)and that this was contrary to the Principles of the Treaty of Waitangiaccording to Section 9 of the State owned Enterprises Act. The duty fell


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upon the Court of Appeal to determine the principles of the Treaty withwhich the Crown’s actions had been inconsistent”. The court asserted thefollowing principles:

i The Acquisition of Sovereignty in Exchange for the Protection ofRangatiratanga

ii The Treaty Established a Partnership, and Imposes on the Partnersthe Duty to Act Reasonably and in Good Faith

iii The Freedom of the Crown to Govern

iv The Crown’s Duty of Active Protection (of Maori people, theirlands and waters)

v The Crown’s Duty to Remedy Past Breaches (The Crown shouldgrant at least some form of redress, unless there are goundsjustifying a reasonable Treaty partner in withholding it.)

vi Maori to Retain Rangatiratanga over their Resources and taongaand to have all the Rights and Privileges of citizenship

vii The Crown’s Duty to Consult Maori (The duty to consult is seen asincapable of practical fulfilment and as implicit in the Treaty.However, “the responsibility of one treaty partner to act in goodfaith fairly and reasonably towards the other puts the onus on …the Crown, when acting within its sphere, to make an informeddecision”.

Following the 1987 Court of Appeal judgment, the Treaty principles weredeveloped and reconsidered in a variety of cases, so in some TribunalReports (1987-95). The Tribunal discussed new Principles, including theright of development, the right of tribal self-regulation, the Crown’sobligation legally to recognise tribal rangatiratanga, and the principle ofoptions. The Treaty implies a partnership, “exercised with the utmost goodfaith.”

3. Peculiarity of the New Zealand Case – the Double Status ofMaori

Maori are both a partner to a Treaty and a disadvantaged ethnic minority.In their first role they could argue for a sovereignty of their own, pre-



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dating the Treaty, in the second role they are in a receiving position,requiring assistance and good will of the welfare state. They are thus bothagents (in an equal partnership) and patients (a receiver or subject) (Sharp1997: 293). The two modes of justice which Sharp refers to, reparative anddistributive justice, derive from these two dimensions of the Maoricondition. Moreover, while the debate seems to lead to the binary terms:Maori /Pakehas; Indigenes/White Europeans enshrined in the notion of abicultural society16 – the agents and the agency on both sides are diverse.

One partner of the Treaty of Waitangi was “the Crown”, while on the otherside stood a loose Confederation of Tribal Chiefs and the Tribes (iwi) theyrepresented. Thus, Maori in the then New Zealand state formed a categoryof citizens with their own rights and culture, which stand in tension withthe idea of rights (as well as a national culture) supposed to be shared by allNew Zealanders including Maori. The common or general rules, laws andprocedures (forms of production, exchange, social intercourse, etc.) wereand still are largely mirroring the consensus among the non-Maori migrantsto New Zealand, predominantly by those from Britain. On the one handMaori face the Crown, a legal entity (“Corporation Sole”), which continuestill date. On the other hand, Maori face the non-Maori population whichevolves and changes.

Maori themselves were never unified, homogeneous and composed of as asingle body. The King Movement and the establishment of a Maori King in1858 was an attempt at unification. Although the Maori King is widelyacknowledged, in legal respects other bodies (Tribe, Sub-Tribal Entities,runanga) are of significance. Moreover, migration of Maori to the citieshas led to mixing of iwi (i.e. members of different tribes) and the formationof “urban iwi”. Finally, there is a significant number of Maori who do notidentify with any Tribe. And, through intermarriage, there is a very highnumber of New Zealanders, who combine Maori and European (orPolynesian, Asian) descent. They may or may not identify ethnically withMaori.

Reparative justice therefore is entwined in the difficulties of multiple legalrepresentations. Distributive justice is less so. However, distributive justiceis faced with another difficult question: should it target ethnic Maori(however defined) or social criteria (“class”; being advantaged/


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disadvantaged) primarily. This is again entangled with the basic questionwhether state policies should treat everyone the same (assuming culturaldifference to be secondary and the final goal being integration or evenassimilation), or whether they should accept differences in culture,worldview (Maori claiming a more “holistic” worldview) and way of life(e.g. the close interrelations of each person with others, with family, andtribe in the Maori case). Does the focus lie on the individual as separaterights-bearer whose inter-relations with others within the family or othersocial institutions are contractual ones, or is the relationship to a collectiveseen to be as essential for the existence and well-being of an “individual”(cf. Sharp 1997: 222f). What should be prioritised: individual or collectiverights ?

All these questions and issues remain unresolved. Different political actors(various political parties; the Government; the Courts; various Maoribodies and individuals as well as the various Pakeha individuals) takedifferent and shifting stances. The politics of affirmative action andinclusion, or social equity, keep vacillating accordingly. However, asalready stated at the beginning, the goal of many Maori is not juststraightforward inclusion; for many, the claim to rangatiratanga (full andcomplete chieftainship or authority) implies “the right and duty ... to beseparately and distinctly Maori” (Sharp 1997: 249) and thus, inclusion ontheir own terms.

3.1 Reparative Justice –Waitangi Tribunal and Maori LandClaims

In 2005, about 6 per cent of land remained in Maori ownership; 94 percent of Maori ancestral land base had been appropriated by the colonialpower (Stavenhagen 2006: 8). The Waitangi Tribunal has registered 1,236claims since 1975, of which 49 have been settled by the Government, withanother 35 partially settled. They include historical claims that cover halfthe land area of the country. The Government notes that 18 historicalsettlements have been reached, that another 25 groups are undernegotiation with the Crown, and that at the present rate of progress it ispossible to settle all historical claims by 2020. (Stavenhagen 2006: 8)

Recommendations made by the Waitangi Tribunal are not generallybinding on the Crown. The process is not therefore adjudicative in thejudicial sense and whether it results in any redress at all depends on both



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the Government’s and the claimants’ willingness to reach an agreement. Inrelation to some Government-held forest land and State-owned enterprises,the Tribunal has binding “adjudicative” powers. According to the SpecialRapporteur of the Commission on Human Rights, Rudolfo Stavenhagen,such redress as may be negotiated in the historical claims process seems,on the basis of experience so far, to fall short of “just and adequatereparation or satisfaction for any damage suffered” (within the meaning ofArticle 6 of the International Convention on the Elimination of All Formsof Racial Discrimination). The Government of New Zealand does notconsider injustices, which largely occurred in the nineteenth century, withinthe scope of the obligation under the Convention to provide reparation forcontemporary discrimination. In recent years, the Crown has not alwaysaccepted the findings of the Waitangi Tribunal Reports. (Stavenhagen 2006:8-9)

The overall land returned by way of redress through settlements is a smallpercentage of the land claims, and cash paid out is usually less than 1 percent of the current value of the land (Stavenhagen 2006:27). The totalCrown expenditure on the settlement of Treaty breach claims over the lastdecade (approximately NZ$ 800 million) is about 1.6 per cent of thegovernment budget for a single year. The Special Rapporteur considersthat the notion that Maori have received undue privileges from Treatysettlements, which has been floated in the media and by some politicians,lacks substance. As it continues to play a significant role in the recovery ofMaori Human Rights, the Tribunal should receive more funding to bringhundreds of outstanding claims to a satisfactory conclusion. Moreover, itsfindings should be judicially recognised and be binding on the Crown.Therefore, the Special Rapporteur is concerned about statementsdisqualifying the work of the Tribunal and demanding its dissolution.(Stavenhagen 2006: 9)

A special case dealt with in the context of reparative justice are MaoriRights to Fishery. In 1992, the Treaty of Waitangi (Fisheries Claims)Settlement Act became law.

“This Act gave effect to the Deed of Settlement, signed inDecember 1992. This deed settled Maori claims to


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commercial fishing; clarified Maori rights to customary ornon-commercial fishing; discharged the Crown’sobligations in respect to Maori commercial fishing interestsunder Treaty of Waitangi.

This agreement was one of the most significant betweenMaori and the Crown since the Treaty was signed 150 yearsago. Under the Settlement Act, Maori claims to commercialfishing rights were settled by the Government helping Maoribuy Sealord Products LTD, which owns about 25 per centof all fishing quota. Maori will also be entitled to 20 percent of quota for any new species brought under the QuotaManagement System (QMS). “17

The Treaty of Waitangi was never wholesale ratified by New ZealandParliament, but the renowned scholar and authority on the question ofJustice for Maori, Andrew Sharp, opines that

“[t]he legislature and the judiciary together … had in a sense‘ratified’ the Treaty: not in its provisions but in its spirit;and not in a blanket way so that it would be the foundationfor all law, but rather piecemeal, in particular statutes andjudgements.”

“The statutes passed by Parliament made Treaty the validlaw. It was not binding either in or of itself …” (Sharp 1997:275; comp. 303f).

The Treaty of Waitangi Amendment Act of December 2006 set September1, 2008, as closing date of Historical Treaty Claims.

3.2 Distributive Justice

The New Zealand Government preferred “cloudy rhetoric” of “socialequity” to that of “justice”, “rights” and “affirmative action”, referring ingeneral ways both to equality of condition and Maori attempts to increaseor retain their “independence of Pakeha control of their lives” (Sharp 1997:181, 215). “What the concept of equity referred to was never clarified, andwhat ought to be done in the name of equity was not agreed upon.” (Sharp1997: 215)



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3.3 Equal Opportunity or “Affirmative Action” Policies (1970suntil 1990)

The Human Rights Act of 1977, amending the Race Relations Act of 1971,set up the Human Rights Commission, which as one arm had an EqualOpportunities Tribunal. While the Human Rights Commission wasempowered to combat discrimination in the workplace, the EqualOpportunities Tribunal could “initiate and assess affirmative actionprogrammes designed to provide for equal opportunities”. In 1987 theEqual Opportunities Tribunal introduced its Equal EmploymentManagement Plan (Sharp 1997: 186f). The State Services Commission in1978 started funding “departments to mount a Cadet scheme for Maoriand Polynesians wishing to make careers in the Public Service”, andestablished an Equal Opportunities Unit in 1983 (ibid., 187). The StateSector Act of 1988 “made affirmative action programmes mandatory inthe State Services” (Sharp 1997: 188).

The 1980s saw a policy of devolution, partially linked to the introductionof far-reaching neo-liberal reforms, but also to cut costs at the centrallevel, which also included devolving certain tasks on to local and regionalMaori bodies. This required, among others, the legal formalisation of tribal(iwi) authorities and the creation of runanga Trust Boards. The MaoriEconomic Development Commission and the Maori EnterpriseDevelopment Scheme (1986) as well as the Maori Resource DevelopmentCorporation (1987) came into being (Sharp 1997: 191, 193). The officialpolicy of equality of opportunity was and still continues to be opposed bylarge sections of the Pakeha population. Distinguishing people on ethnic(or “racial”) grounds for the purpose of affirmative action is regarded as“racism”, “apartheid” and “inequality before the law” (Sharp 1997: 195).

4. Critical Inventory: Current Situation of Maori in Aotearoa/New Zealand

According to distributive justice Maori come into view as disadvantagedethnic minority. The following illustrates the social and economic gapbetween Maori and Pakeha:

• Open Discrimination and Racism

In contemporary New Zealand the stereotype of the lazy andincapable Maori is very common and clearly shows indiscriminatory language:


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“It is this discriminatory language used in New Zealand,which influences thought by constructing a negativestereotype of Maori people. Within this stereotype, Maoriare portrayed as primitive, dirty, lazy, intellectuallychallenged, having low moral values, and generallyculturally inferior when compared to the dominant Pakeha(a Maori word used in New Zealand to define ‘non-Maori’)based New Zealand culture.”18

• Work and Income

The economic situation of Maori has improved on an average overthe past years. However, the gap between Maori and non-Maorihas not closed.

Income:

Median annual income for Maori adults was $20,900 on March 7, 2006,compared to $24,400 for all adults aged 15 or over and $25,400 for thoseof European ethnicity. Median annual income for Maori adults was$14,800 on March 31, 2001, compared to $18,600 for all adults aged 15or over, and $19,800 for those of European ethnicity. The Maori medianannual income increased by about 40 per cent between 2001 and 2006,that of Europeans by about 28 per cent.

Employment Rate:

Nearly about 56 per cent of Maori adults were employed in 2001,compared with 43 per cent in 1991. Of all employed Maori, 88.1per cent were paid employees and 9.6 per cent were self-employed.19 The Department of Labour in its report on Maorilabour market outcomes observed an increase in qualification ofMaori employees, but also continuing difficulties to translate theirqualifications into higher skilled employment.

High Un- Employment Rate

Maori are economically more vulnerable than many other ethnicgroups as shown by their higher unemployment risk. The Maoriunemployment rate, however, decreased significantly over the lastyears of positive overall development of the NZ economy (from16.8 per cent in 2001 to 11.0 per cent in 2006). In comparison to



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non-Maori, Maori are more dependent on welfare schemes andgovernment assistance and tend to be less likely to own houses.

Maori Commercial Asset-Base

The Maori Commercial Asset Base was estimated to be $ 16.5 billionas at 2005/06. It only represents 1.5 per cent of the value of theNew Zealand business sector in 2005/06.20

• Performance in the Education System

Maori still under-perform in the formal education system, withhigher drop-out rates and less holders of university degrees.

“MaÌori, on average, accounted for only 19 per cent of all earlychildhood enrolments in 1998, yet represented 26 per cent of thetotal population at early childhood ages in this same year.

Between 1991 and 1998, the number of MaÌori in tertiary educationincreased from 7 per cent to 12 per cent. The largest areas of growthfor MaÌori have occurred in colleges of education where, in 1991,MaÌori made up 8 per cent of all enrolments compared to 12 percent in 1998. During the same period, the percentage of MaÌori inuniversities grew from 7 per cent to 9 per cent, while the percentagein polytechnics remained the same (14 per cent in each year).

• Alarming Health Statistics

Maori health status levels are considerably lower than those ofnon-Maori across a range of health indicators. Among Maori onefinds high incidence of diabetes and obesity and tobacco smoking.Maori (as well as Pacific Islanders) have a considerably shorterlife expectancy than non-Maori. As Te Puni Kokiri observes, thereare “persistent health inequalities in New Zealand, pointing outthat there is some evidence that these are linked to socio-economicfactors.”21

• Life Expectancy at Birth

Although life expectancy at birth of Maori males and females hasimproved, it is still lower than that of non-Maori. Infant mortalityrate has decreased but Maori have still higher rates than non-Maori.


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• Over-Representation in Prisons

The Maori percentage among people convicted is significantly high.However, ethnic classification by police is done differently fromthe census, which relies on self-identification.

• Maori Emigration to Australia

According to Te Pune Kokiri-Report “Maori in Australia” (2007),between 115,000 and 125,000 Maori lived in Australia in 2001.Maori migrants to Australia put forth discrimination in NewZealand as one major cause for emigration. Another key reasonfor moving to Australia was economic opportunity such as higherwages.

5. Strategies, Programmes, Fields of Action to Enhance SocialEquity (since the 1990s)

The Government of Aotearoa/New Zealand has undertaken multiple effortsto improve the status of Maori in the country.

• Monitoring Activities to Measure “the gap” and toMonitor Progress

The state of the social, economic and cultural condition of Maorias well as the outcome of support and promotion programmes ismonitored regularly by various NZ institutions and governmentbodies, which bring out special reports and surveys or includespecial sections on Maori in general reports. The observationsmade in this study to a great extent rely on such reports. Reportscover, among other items, the “reduction of inequalities”,education (knowledge and skills) achievements, Maori languageproficiency development and the participation and potential ofMaori in the national and international economy.

• Good Practice

The New Zealand Government attempts to institutionalise modesof good practice on various policy levels regarding respect forMaori customs and participation of, as well as cooperation withMaori. The idea is that Maori representatives participate in decisionmaking of government agencies, local government, and districthealth boards, school boards etc. This can take the form of



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partnerships, one-off consultations, community decision-makingetc. Te Puni Kokiri and the Ministry of Justice in 2006 developed“Guidelines and Advice for Government and State SectorAgencies”. However, it is also stated: “It is not mandatory for Crownentities to comply with CMRI policy framework, but they areinvited to apply for the guidelines when developing the relationshipinstruments.”22

• Equal Employment Opportunity Policy – Maori

The Government of New Zealand has laid out an Equal EmploymentOpportunity (EEO) policy, “based on the application of the meritprinciple, and will continue to be concerned with removing unfairdiscriminatory practices and building inclusive systems andstructures which promote equal opportunities in the workplace”.23

An initial list of disadvantaged groups was included in the StateSector Act, 1988. Maoris are one of the target groups of that policy.

• Protection and Promotion of Maori Culture: Languageand Cultural Policies

The change of government policies in the 1980s involved activesupport to protect and promote Maori language and culture. TheMaori Language Act of 1987 made Reo Maori officially the secondnational language. It stated the right to speak Maori in legalproceedings and established the Maori Language Commission, TeTaura Whiri i te Reo Maori. Maori language training and Maorimedium education were newly promoted and also receivedgovernment support.

Maori Radio exists since the 1980s. There are currently 21 Maoriradio stations in the country funded by the Maori Broadcastingfunding agency, Te Mangai Paho. Maori TV exists since March2004 (Te Pune Kokiri - Maori Broadcasting and E-Media 2007).Programmes are bilingual, in Maori or in English, with subtitles.Maori TV claims that programmes are 90 per cent locally produced.

• Education Policies

Programmes of various kinds with respect to the different levelsof education, targeting students, teachers as well as administratorsand the general Maori public, have been discussed and formulated.


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One general instrument consists in formulating Maori Educationstrategies, the first being accepted by the Ministry of Education in1999. The New Draft Maori Education Strategy 2008-2012, KaHikitia – Managing for Success, of the Ministry of Educationintends to step up the performance of the education system “toensure Maori enjoying educational success as Maori”.

• Health (promotion) Policies

The Government (Ministry of Health) has embarked on tacklingMaori health issues within the frame of its overall policy. Maori,like other sectors of the population, are especially targeted throughspecial health information and promotion campaigns. TheGovernment also set up policies to change organisational andoperational procedures in the health sector and declared itsintention to train and recruit more staff of Maori ethnicity. It alsohas stated the intention to encourage the use of Maori models ofhealth and Maori traditional healing based on indigenousknowledge.

Among other things the Maori Health strategy of the Governmenttries to improve “mainstream effectiveness”. Since the majority ofMaori continue to receive most of their health care frommainstream services, considerable ongoing effort is required toreorient mainstream services, providers and systems to prioritiseMaori health needs.

• Managing Offenders, Reducing re-offending amongMaori

The Department of Corrections “has implemented new offendermanagement processes that reflect best practice principles forreducing the risk of re-offending.” It commits itself to “improvingresponsiveness to Maori”. It undertakes all this under the headingof “reducing inequalities” in society.

• Business Training Support

Industry New Zealand, a Government agency or Crown entity, andsince July 2003, New Zealand Trade & Enterprise, run a BIZTraining Programme called Enterprise Training Programme,whose “overall objective is to help small and medium sized



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businesses achieve growth by providing an information and referralservice and opportunities for building management capability”,which “incorporates a sub-programme designed specifically forthe trustees and managers of Maori Trusts and incorporations ofland managed under Te Ture Whenua Maori Act 1993 and of Trustsand Organisations managing multiple owned Maori assets knownas the Maori Trustee Training programme.”24

6. Political Representation of Maori: Maori DevelopmentMinistry and Maori Reserved Parliamentary Seats

Maori have a special presence in the political system of Aotearoa / NewZealand due to the policy of reservation of parliamentary seats, existingsince colonial times and the establishment of a Maori Ministry.

• Maori Reserved Parliamentary Seats

The New Zealand Parliament (after Britain established aWestminster-style parliamentary system in NZ in 1852) createdthe first Maori seats in 1867. From 1868 to 1993 there were fourMaori seats. With the introduction of MMP (mixed memberproportional) electoral system Maori seat numbers float (electorateof a Maori seat is supposed to be equal to that of a general seat).The first election held under the system was in 1996. The numberof Maori seats in 1996: 5; in 1999: 6; in 2002, 2005 and 2008: 7seats. Voters decide beforehand if they want their name on theseparate (Maori) electoral roll or on the general roll. This rightwas gained by Maori in 1976.

• Maori Development Ministry, Te Puni Kokiri

The Ministry of Maori Development Act 1991 established Te PuniKokiri, Ministry of Maori Development, in 1992 (during colonialtimes: Department of Native Affairs, since 1947 Department ofMaori Affairs.) “Currently, Te Puni Kokiri’s work focuses onproviding high quality policy advice to Government and otheragencies. Recently it has also begun providing services to assistMaori achieve their development aims.”25

6.1 Other Legislation with Specific Reference to Maori

Other important acts and legal regulations with specific Maori clauses orreference to Maori concerns are:


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• Maori Land Court

Maori Land Court and the jurisdiction concerning it regulatematters relating to Maori land rights. The present Maori Land Court(Te Kooti Whenua Maori) has been set up under the Te TureWhenua Maori Act 1993. It “has jurisdiction to hear matters relatingto Maori land. [...] The Judges of Maori Land Court are also Judgesof Maori Appellate Court.” 26

• Maori Trustee Act 1953

The Maori Trustee is responsible for acting either as a trustee oragent for owners of Maori land, usually in leasing the land.27

• Resource Management Act of 1991

The over-riding purpose of RMA [Resource Management Act] is“to promote the sustainable management of natural and physicalresources”. The Act includes “obligation on local authorities toensure that consultation does take place where tangata whenuaare likely to be directly affected by a proposal”.28

7. Cross Current: Restraining Maori Rights

Lately the Government of New Zealand has taken decisions which areclearly against the interests of the Maori population, with that counter-balancing its legislations and policies directed to guarantee justice andequity to Maori.

Foreshore and Seabed Legislation

The New Zealand Parliament in 2004 cut down potential customary rightsof Maoris over the foreshore and seabed of New Zealand, stretching out tothe territorial boundaries of New Zealand, which end 12 nautical milesfrom the low water mark, contravening in this process the Treaty of Waitangiand its partnership principles.

“The foreshore and seabed controversy was sparked when,on 19 June, 2003, New Zealand’s Court of Appeal ruled, inthe Ngati Apa decision, that Maori were entitled to seek’customary title’ over areas of New Zealand’s foreshore andseabed in the Maori Land Court. The Court of Appealoverturned a line of precedent dating back to 1877 and



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affirmed by the New Zealand Court of Appeal in 1963.These early decisions held that because of circumstancesunique to New Zealand, Maori land ties were so weak thatthey could be extinguished through such indirect routes asunrelated phrases in legislation or through the Native (nowMaori) Land Court’s investigation of dry land adjoining theforeshore.”29

“ [...] the Court of Appeal judges found that – unlike theCrown had asserted – the two statutes referred to by theCrown had not extinguished Maori title to the foreshoreand seabed. Accordingly, the unanimous decision in theNgati Apa case held that the Crown did not own theforeshore and seabed of New Zealand.” (Patermann 2006:25)

“On November, 18 2004, the Labour/Progressive government passed theForeshore and Seabed Act, which declared that the land in question wasowned by the Crown. Maori can, however, apply for “guardianship” ofcertain areas. The Act was highly contentious.”30 This legislationencountered massive opposition from the side of many Maoris, whichcontinues until today and which acted as catalyst for setting up the MaoriParty in 2004.

“The United Nations Committee on the Elimination of RacialDiscrimination, after being asked by Te Runanga o Ngai Tahu to considerthe legislation, issued a report on March 12, 200531 stating that theforeshore and seabed legislation discriminates against Maori byextinguishing the possibility of establishing Maori customary title overthe foreshore and seabed, and by not providing a means of redress.”32

Vote against Adoption of “United Nations Declaration on theRights of Indigenous Peoples”

In 2007, New Zealand voted against the United Nations Declaration on theRights of Indigenous Peoples, which was adopted on September 13, 2007by the United Nations General Assembly. The other countries which votedagainst the Declaration were Australia, Canada and the US.

UN DPI Summary of NZ Government Representatives’ Statement:


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“Rosemary Banks (New Zealand), speaking in explanation of vote, notedthat New Zealand was one of the few countries which from the start hadsupported elaboration of a declaration that promoted and protected rightsof indigenous peoples. In New Zealand, indigenous rights were of profoundimportance, and were integral to its identity as a nation-state and as people.New Zealand was unique: a treaty concluded at Waitangi between the Crownand New Zealand’s indigenous peoples in 1840 was a founding documentof the country. Today, New Zealand had one of the largest and mostdynamic indigenous minorities in the world, and the Treaty of Waitangihas acquired great significance in the country’s constitutionalarrangements, law and Government activity.”

“The place of Maori in society, their grievances and disparities affectingthem were central and enduring features of domestic debate andGovernment action, she said. New Zealand also had an unparalleled systemfor redress, accepted by both indigenous and non-indigenous citizens alike.Nearly 40 per cent of the New Zealand fishing quota was owned by Maori,as a result. Claims to over half of New Zealand land area had been settled.For that reason, New Zealand fully supported the principles and aspirationsof the Declaration on the Rights of Indigenous Peoples. The country hadbeen implementing most of the standards in the Declaration for many years.She shared the view that the Declaration was long overdue, and the concernthat indigenous peoples in many parts of the world continued to be deprivedof basic human rights.”

“New Zealand was proud of its role in improving the text over the pastthree years, turning the draft into one that States would be able to upholdand promote. It was, therefore, a matter of deep regret that it was unable tosupport the text before the Assembly today. Unfortunately, New Zealandhad difficulties with a number of provisions of the text. In particular, fourprovisions in the Declaration were fundamentally incompatible with NewZealand Constitutional and Legal arrangements, the Treaty of Waitangi,and the Principle of Governing for the good of all its citizens, namely,Article 26 on lands and resources, Article 28 on redress, Articles 19 and 32on a Right of Veto over the State.”

“The provision on lands and resources could not be implemented in NewZealand. Article 26 stated that indigenous peoples had a right to own, use,develop or control lands and territories that they had traditionally owned,



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occupied or used. For New Zealand, the entire country was potentiallycaught within the scope of the Article, which appeared to require recognitionof rights to lands now lawfully owned by other citizens, both indigenousand non-indigenous, and did not take into account the customs, traditionsand land tenure systems of the indigenous peoples concerned. The Article,furthermore, implied that indigenous peoples had rights that others didnot have. The entire country would also appear to fall within the scope ofArticle 28 on redress and compensation. The text generally took no accountof the fact that land might now be occupied or owned legitimately by others,or subject to numerous different or overlapping indigenous claims. Finally,the Declaration implied that indigenous peoples had a right of Veto over ademocratic legislature and national resource management.”

“She strongly supported the full and active engagement of indigenouspeoples in democratic decision-making processes. New Zealand also hadsome of the most extensive consultation mechanisms in the world. But theArticles in the Declaration implied different classes of citizenship, whereindigenous had a right to veto that other groups or individuals did nothave.”

“While New Zealand took international human rights and its internationalhuman rights obligations seriously, it was unable to support a text thatincluded provisions that were so fundamentally incompatible with itsdemocratic processes, legislation and constitutional arrangements”.32

New Zealand Report of Special Rapporteur of the Commissionon Human Rights – A Critique

The Special Rapporteur of the Commission on Human Rights on thesituation of human rights and fundamental freedoms of indigenous people,Rudolfo Stavenhagen, has criticized the New Zealand Government. Hestates that the Government does not sufficiently support the rights andinterests of the Maori population:

“The Special Rapporteur considers that New Zealand’s human rightslegislation does not provide sufficient protection mechanisms regardingthe collective rights of Maori that emanate from Article 2 of the Treaty ofWaitangi (their tino rangatiratanga). He also considers that the underlyinglegal and political fragility of Maori Rights translates into a human rights


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protection gap that seems not to be sufficiently covered by existinglegislation. For example, the Legal Services Act 2000 prevents any personfrom obtaining funding under the Act to defend their rights in court, exceptunder specified circumstances.”

“Although Maori collectives (iwi, hapu, whanau) are increasingly involvedin the strategies designed to reduce these inequalities, as well as in thosedesigned to promote economic development and Maori success in business,actual self-governance mechanisms based on the recognition of the rightof indigenous peoples to self-determination have not yet been devised.There appears to be a need for the continuation of specific measures basedon ethnicity in order to strengthen social, economic and cultural rights ofMaori as is consistent with the International Convention on the Eliminationof All Forms of Racial Discrimination.”33

Report of the Special Rapporteur on the situation of human rights andfundamental freedoms of indigenous people, Addendum Mission to NewZealand, by Rodolfo Stavenhagen, United Nations, Economic and SocialCouncil, Commission on Human Rights, E/CN.4/2006/78/Add.3, 13March 2006, pt. 13 and pt. 80.



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End Notes

1 Timber came from the kauri tree, Agathis australis, a species ofpine which grows 60 to 80 feet before the first branch; the wood isvery hard and long lasting. The kauri tree is New Zealand’s largestand most famous native tree. It grows in the subtropical northernpart of the North Island. It has been estimated that prior to Europeancolonization the kauri forests of northern New Zealand occupied atleast 12,000 square km. It is estimated that today there is 4% ofuncut forest left in small pockets.

2 Ward mentions that the decline of Maori is often overestimated. Heestimates that Maori population declined from about 100,000 in1769 to between 70,000 and 90,000 in 1840.

3 Pakeha are New Zealanders of predominantly European (British,Scottish, Irish) ancestry. Pâkehâ is a Mâori term; its origins areunclear, but it was in use by the late 18th century.

4 The colony of New South Wales had been founded in 1788. Thecolony included all the islands adjacent in the Pacific Ocean andrunning westward on the continent to the 135th meridian.

5 The New Zealand Company was formed in 1839 in London topromote the “systematic” colonization of New Zealand. It wasfounded on the colonizing principles of Edward Gibbon Wakefield,who envisaged the creation of a new model English society in thesouthern hemisphere.

6 According to traditional law land is a common and not alienablegood. Rights to land are vested in the hapu.

7 The Treaty of 1840 had a forerunner. James Busby, the OfficialResident, encouraged Mâori chiefs to assert their sovereignty withthe signing of the Declaration of Independence in 1835. Thedocument was acknowledged by King William IV. However, Busbywas provided with neither legal authority nor military support andwas thus ineffective in controlling the European population.

8 The problem of “having two treaties” has been discussedextensively (see e.g. Kawhuru 1994, Ward 1995, 1999).


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9 Well known is the protest of Hone Heke, chief of Ngapui tribe and in1840 the first to sign the treaty. Hone Heke launched several attackson the British flagstaff at Russell (formerly Kororareka) in 1844-45.

1 0 The institution of a Maori kingdom which started as unifying forceagainst the white colonizers, still exists. Tuheitia Paki, the currentking, was crowned on August 21, 2006.

1 1 The Parihaka International Peace Festival has been held annuallythere since 2006.

1 2 Law changes in 1893 and 1896 completed the almost totalseparation of the Maori and European electoral systems. From thenuntil 1975 only so-called ‘half-castes’ were allowed to choose whichseats they wished to vote in. Once established, the Maori systemlargely suffered from official neglect. Although the secret ballotwas introduced in European seats in 1870, it was not consideredsuitable for Maori elections. Maori continued to vote under the oldverbal system - in which electors told the polling official who theywanted to vote for - until the 1938 election. There were also noelectoral rolls for the Maori seats until 1948-9. Electoral officialshad always argued that it would be too difficult to register Maorivoters (supposedly because of difficulties with language, literacyand proof of identity).

In 1975 the Labour government introduced a ‘Maori electoraloption’, to be held alongside (or following) each census. This allowedelectors of Maori descent to choose whether they enrolled in generalor Maori seats. In 1976, however, the newly elected Nationalgovernment decided that the number of Maori seats was to remainfixed at four - whatever the outcome of the subsequent options. Itwas not until the 1980s and the later introduction of mixed memberproportional representation (MMP) in 1996 that more Maorientered the House and represented electorates other thantraditional Maori seats.

1 3 The First Labour Government of New Zealand was in power from1935 to 1949. It set the tone of New Zealand’s economic and welfarepolicies until the 1980s, establishing a welfare state.

1 4 Historians stress that protest movements have only very rarelypursued separatist goals. Special rights for Maori should be grantedunder the aegis of the Crown and Parliament (see Ward 1999:23).



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1 5 For the principles and the interpretation of principles see:Appendix: The Principles of the Treaty of Waitangi, compiled by DrJanine Hayward, retrieved on 15 March 2008 from http://www.waitangitribunal.govt.nz/treaty/principles.asp.

1 6 And overlooking the fact that New Zealand actually is a multi-cultural society.

1 6 http://www.starfish.govt.nz/social/facts/fact-maori-fisheries.htm

1 7 The International Journal of Language Society and Culture, Issue22, 2007; URL: www.educ.utas.edu.au/users/tle/JOURNAL/ ISSN1327-774X

18 For above figures:

h t t p : / / s t a t s n z . r e s u l t s p a g e . c o m /search?p=Q&ts=custom&w=median%20annual%20income; http://www2.stats.govt.nz/domino/external/pasfull/pasfull.nsf/7 c f 4 6 a e 2 6 d c b 6 8 0 0 c c 2 5 6 a 6 2 0 0 0 a 2 2 4 8 /4c2567ef00247c6acc256c2f00139bf1?OpenDocument; http://www.stats.govt.nz/census/2006-census-data/quickstats-about-m a o r i / 2 0 0 6 - c e n s u s - q u i c k s t a t s - a b o u t - m a o r i -revised.htm?page=para017Master

1 9 Te Puni Kokiri, Nga Kaihanga Hou – For Maori Future Makers,October 2007.

20 http://www.tpk.govt.nz/maori/health/default.asp

2 1 http://www.goodpracticeparticipate.govt.nz/engaging-maori/relationship-instruments.html

22 h t t p : / / w w w . s s c . g o v t . n z / d i s p l a y /document.asp?docid=2986&pageno=2#P15_2530

23 Industry New Zealand’s BIZ training Programme for Maori, 2004,retrieved in March 2008 from http://www.tpk.govt.nz/publications/audits/default.asp

24 http://www.tpk.govt.nz/about/default.asp

25 h t t p : / / w w w . j u s t i c e . g o v t . n z / M % C 4 % 8 1 o r i l a n d c o u r t /pastpresent.htm (accessed 8 April 2008)


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26 http://www.finda.co.nz/business/listing/pkb2/the-office-of-the-maori-trustee-te-tari-o-te-kaitiaki- maori/ (accessed 8 April 2008)

2 7 http://www.rmaguide.org.nz/rma/introduction/principals.cfm(accessed 8 April 2008)

28 h t t p : / / e n . w i k i p e d i a . o r g / w i k i /New_Zealand_foreshore_and_seabed_controversy

29 h t t p : / / e n . w i k i p e d i a . o r g / w i k i /New_Zealand_foreshore_and_seabed_controversy

30 Office of the United Nations High Commissioner for Human Rights,Geneva, Switzerland, Decision 1 (66) : New Zealand. 27/04/2005.CERD/C/DEC/NZL/1. (Decision).

3 1 h t t p : / / e n . w i k i p e d i a . o r g / w i k i /New_Zealand_foreshore_and_seabed_controversy

32 http://www.converge.org.nz/pma/in140907.htm, retrieved 11April 2008.

33 Report of the Special Rapporteur on the situation of human rightsand fundamental freedoms of indigenous people, AddendumMission to New Zealand, by Rodolfo Stavenhagen, United Nations,Economic and Social Council, Commission on Human Rights, E/CN.4/2006/78/Add.3, 13 March 2006, pt. 13 and pt. 80.



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References

Alves, Dora, 1999, The Maori and the Crown: An Indigenous People’sStruggle for Self-Determination, Westport: Greenwood Press.

Kawhuru, I.H. (ed.), Waitangi: Maori and Pakeha Perspectives of theTreaty of Waitangi, Auckland: Oxford University Press.

Metge, Joan, 1967, The Maoris of New Zealand, London: Routledgeand Kegan Paul.

Patermann, Anne (2007), An Analysis of the Foreshore and SeabedConflict, MA Thesis, Free University Berlin.

Sharp, Andrew, 1997, Justice and the Maori: The Philosophy andPractice of Maori Claims in New Zealand since the 1970s. 2nd ed.,Auckland: Oxford University Press.

Stavenhagen, Rodolfo, 2006, Report of the Special Rapporteur on thesituation of human rights and fundamental freedoms of indigenouspeople, Addendum: Mission to New Zealand, United Nations,Economic and Social Council.

(see also: http://www.converge.org.nz/pma/srnzmarch06.pdf)

Ward, Alan, 1995, A Show of Justice: Racial “Amalgamation” inNineteenth Century New Zealand, (reprinted with corrections),Auckland: Auckland University Press.

Ward, Alan, 1999, An Unsettled History: Treaty Claims in New ZealandToday, Wellington, NZ: Bridget Williams Books.

New Zealand Immigration Service, 2001, Te Tiriti o Waitangi: TheTreaty of Waitangi and Migrants. (Information Brochure)


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Glossary

ariki chiefs

haka posture dance

hapu sub-tribe or kin-group

hikoi march (literally: step)

“He iwi tahi tato” “We are one people”

Hui formal gathering in the marae

iwi tribe

kaumatua elsders

kawanatanga governance, trusteeship

kingitanga kingship

Kotahitanga Unity movement, unification

mana spiritual potency; also prestige, power and authority

maoritanga Maoridom

marae village courtyard, meeting place, the spiritual andsymbolic centre of tribal affairs

Pakeha Maori expression for New Zealanders of predominantlyEuropean (British, Scottish, Irish) ancestry

rangatira active heads of each extended family

rangatiratanga full and complete chieftainship or authority

runanga council

ta moko tattoo

taha Maori The “Maori way”

tangata whenua Maori, People of the Land, indigenous people of NewZealand

taonga treasures, cultural heritage

tapu under spiritual restrictions, sacred (relates to personsand objects)

Te reo Maori Maori language

Te Wananga o Aotearoa Maori University in Aotearoa / New Zealand

tikanga Maori Maori custom

utu revenge

wahi tapu sacred places

whanau extended family

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