Peter Luke, of our political staff, considers recent action on Maori rights Courts force new look at issues raised by Treaty

Press, 21 November 1987, Page 22

Peter Luke, of our political staff, considers recent action on Maori rights Courts force new look at issues raised by Treaty

Governments are not normally given to masochism, but Labour’s reaction to recent court decisions dealing with the Treaty of Waitangi could be an exception.

Both the Court of Apeal and the High Court have this year upheld claims by the New Zealand Maori Council against the Crown, dealing with land and fisheries respectively. But the Court of Appeal decision — which frustrated the transfer of assets to State-owned Enterprises — appeared not to faze the Government And when the High Court in Wellington issued its fisheries injunction, the Attorney-General, Mr Palmer, indicated that the parties might be able to resolve the dispute without a full hearing. Leaving aside the ability of politicians to make the best of adverse events, there is a very real reason why the Government should not be displeased by its losses. At a time of rising racial tension, the courts have forced both the Government, and society generally, to confront treaty issues. The Court of Appeal decision, given in June, forbade the transfer of Crown assets to S.O.E.s, until a system had been devised to protect Maori land claims. The Crown had said that this would mean many of the new corporations would only be able to act “in a withered and crippled way.” The Crown vigorously opposed the Maori Council case in court, but appeared singularly underwhelmed by the decision. The court gave the Crown three weeks to work out a way of protecting Maori claims to any land transferred to the S.O.E.s; and three weeks were then to be given to the Maori Council to accept or modify Crown proposals. Mr Justice Cooke thought six weeks should be ample time to carry out the court orders. That expired more than three months ago and the deadline had to be extended.

At present the Maori Council has a Crown proposal before it, and it is likely the two parties will soon return to the court to have an agreement approved.

Neither party has disclosed the substance of the offer, although the Minister of State-Owned Enterprises, Mr Prebble, said that the cost to the Crown would be “high.”

The benefit to the Crown, as expressed many times by Mr Palmer, is that finally the “treaty partners” are confronting the issues and grievances arising from the treaty. The Cgurt of Appeal forced this by converting the treaty from a somewhat nebulous colonial document, to a set of principles with contemporary teeth.

Mr Palmer described the legal recognition of the treaty in the S.O.E. case as a breakthrough in parliamentary and legal history. In this respect, 1987 is the pivotal year,in the treaty’s history. The court has opened the way to dealing with almost 150 years of accumulated grievance. Many of these grievances had been sympathised with, or dealt with piecemeal, but were clearly too awesome in their implications to confront full on.

Mr Justice Cooke prefaced his S.O.E. case decision by suggesting that the case was as important as any in New Zealand’s legal history. But it was Mr Prebble — whose new S.O.E. portfolio has been most affected — who summed up the Government’s new realism. “New Zealand Governments have only paid lip service to the Treaty of Waitangi. The real truth is even worse. New Zealand Governments have broken treaty undertakings.” Until the S.O.E. judgment, New Zealanders had known of treaty abuse, but had refused to face up to it While the cost of complying with the court would be high, the alternatives would be even more expensive. Treasury has shown signs of a similar realism. The department’s post-election briefing papers for the Minister included a largely overlooked chapter on the policy implications of the

treaty. The briefing papers discussed the land and fishing issues, and raised the prospect that mineral rights could become another battleground. They also appearedto accept that the land issue could require significant financial settlements, and canvassed ways of achieving this. The novelty of this realism has been shown in the first comprehensive history of the treaty, appropriately pußlished this year. Its author, Dr Claudia Orange, submitted an affidavit to the Court of Appeal on the historical background of the treaty.

Dr Orange has herself experienced the indifferent attitude to the treaty which has predominated through much of its pakeha history. She was advised she was wasting her time researching the treaty because there was nothing left to be written.

But she found untapped sources that showed the importance placed on the treaty by Maori since 1840, and a wide gap in perceptions about the treaty between the two peoples. Dr Orange is adamant that Maoris were unaware they were signing their sovereignty away in 1840, and she believes there was a masking of British intentions. Throughout the nineteenth century, Maoris used the treaty as a basis of their rights. New Zealanders today would find it hard to accept the degree to which New Zealand and British Governments refused to take these rights seriously, she says.

Legislation, such as the 1877 Fisheries Act, did include a provision protecting treaty rights. But this in practice meant very little, as no fishing rights could rest secure on the provisions of the treaty alone.

The S.O.E. Act was itself a product of this heritage. The two clauses dealing with the treaty and Maori land were added to the bill after the Waitangi ' Tribunal, and others, pointed out

the need for land protection. Clause nine said that nothing in the bill was to be inconsistent with treaty principles; while clause 27 sought to ensure that claims lodged with the tribunal before December 18 last year werir not compromised by the asset transfer.

The Opposition tried to amend clause 27 by removing the December 18 deadline, but the Government believed there was already sufficient protection. A key problem with this deadline, however, was that the tribunal was only last year given the power to make recommendations on claims before 1975 — the year it was set up. Mr Justice Cooke pointed out that considerable time and money went into preparing claims.

He noted that of the 88 claims before the tribunal, 32 had been lodged since December 18 last year. The court held that clause nine — one of the "principles” of the act — demanded more protection than was provided for in Clause 27.

As an historian, Dr Orange is cautious about predicting what will follow from this decision. In her book, she notes that Labour first promised a Royal commission to examine land claims in 1925. It took half a century and three Labour Governments before the Waitangi Tribunal was

set up. i One reason for this tardiness was the inability of Governments to step too far ahead of public opinion. The present Government faces the same problem. ■ There is already some suspicion, and a little hostility, to the Government's Maori-lan-guage promotion as the treaty's Inclusion in the proposed Bill of Rights. '• For many New Zealanders the treaty has become associated with the protests at Waitangi. The Maori conspiracy theory has its adherents, as was shown by the support, received by the member of Parliament for Hobson, Mr Ross Meurant, in his maiden speech. Such a backlash must intensify if the Government now proceeds to honour broken promises over land or fisheries. The treaty will be a focal point of New Zealand’s 150th anniversary celebrations in 1990. By then the real significance of this year’s court cases will be known, and there could finally be something tangible for many Maoris to celebrate. But if that is the case, unless there is a change in attitude by some members of the public, the chant that “the treaty is a fraud” < could by then be coming from a different quarter.

The Court of Appeal converted the treaty from a colonial document to a set of principles with teeth