New Bill fails to satisfy

Tu Tangata, Issue 26, 1 October 1985, Page 12

New Bill fails to satisfy

by Sherill Tapsell

To satisfy his appetite for power the shark suggested to the kahawai that they unite and become one. The small kahawai asked how this might be done.

“It’s simple” replied the shark, “all you must do is let me swallow you and we will be one forever.” Like the kahawai, the Treaty of Waitangi could be swallowed up by the proposed ‘Bill of Rights’, decided a hui of Maori lawyers in Auckland. At Te Tutahi Tonu marae about 50 lawyers, law students and Maori church representatives from the north island met to explore the implications of including the treaty in the Bill of Rights. The Treaty of Waitangi was signed by Maori people with the British in 1840. Although it has status in international law, it has little legal status in New Zealand law. If included in the proposed bill of rights, the treaty would receive legal backing for the first time. Speakers at the hui included Chief Judge Eddie Durie, chairman of the Waitangi Tribunal, Ripeka Evans and Shane Jones who all presented papers at a legal seminar on the bill the following day at the University of Auckland.

Dame Whina Cooper also spoke to the hui. In workshops they discussed how the bill would affect Maori people and whether the treaty should be included in the proposed bill. The proposed bill of rights has this to say about the Treaty of Waitangi. 1) “The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed. 2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent. 3) The Treaty of Waitangi means the Treaty as set out in English and Maori in the Schedule to this Bill of Rights.

The second clause is seen as applying to disputes that arise from the time of the implementation of the Bill of Rights, with the Waitangi Tribunal being seen as looking after disputes from the signing of the Treaty to the present day.

When he visited the hui in the afternoon Justice Minister Mr Geoffrey Palmer was told Maori people consider the treaty is their right and to include it

in the bill of rights would take away its mana. The treaty and the bill were two separate issues he was told and the treaty should not be swallowed up into the bill. “The treaty must stand on its own and not be subject to someone elses ideas,” said Annette Sykes, a lawyer from Te Arawa, Rotorua. She told Mr Palmer that the bill of rights as it stands is unacceptable because it destroyed the concept of Maori collective rights. Maori rights involve group rights and the legislative and judiciary system are not set up except for the Waitangi Tribunal to handle group rights,” said Annette Sykes. If included in the bill as it stands, the treaty is subject to interpretation by the courts.

“This means the treaty will be judged according to the values of judges, at present predominantly non-maori males over 50 years,” said Annette Sykes. The courts are inadequate to deal with the Maori perspective at the moment she said.

Until there is a true understanding of Maori things it’s not good enough to have the treaty subject to anyone elses ideas or rights, she said. This would in effect be setting up a new New Zealand culture based on individual rights and Maori people would get absorbed into this and move away from the collective nature of Maori culture she said. A successful vehicle to hear Maori claims has been based on the treaty and is called the Waitangi tribunal. Under the bill, however, both the treaty and the tribunal will be separated. The treaty will cater for Maori claims in the future, and the Waitangi tribunal will handle claims re-

lating to the treaty from 1840 to the present. “The bill will have a detrimental effect on the Waitangi tribunal” said Maori law student Gina Rudland who presented a paper to the hui. And the suspicion of the Maori people towards the courts is born out that “the courts of law have never upheld a decision regarding the Treaty of Waitangi in the Maori people’s favour," said Gina Rowland. Recommendations like those the tribunal made on the recent Tainui people’s claims over the Manukau harbour might not occur but would go through the court system. The Waitangi tribunal is quite unique for a tribunal. It can hear any evidence on marae of tangata whenua and in Maori. It is now winning the confidence of Maori people because of its chairmanship and its interpretation of the treaty in accordance with a Maori perception of the treaty said Gina Rudland.

“However the tribunal only has power to make recommendations from on its findings,” she said and Mr Palmer was asked that the tribunal be given more power to implement these changes in this area. In the proposed ‘Bill of Rights’ the Treaty of Waitangi will stand alone and claims by Maori people will be interpreted by the courts. How will the courts of law interpret it? Under article 2 of the treaty, Maori were guaranteed full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties.

“This guarantee has never been kept and a lot of legislation offends against this,” said Maori law student Shane Solomon who presented a paper to the hui. Acts such as Public Works and Mining acts allow for the taking of Maori owned land therefore it’s clear that Maori people have no turangawaewae since the land can be taken from them he said. “Many acts recognise the existence of Maori land but ignore its status” he said. “Under the bill there is no guarantee of full and exclusive and undisturbed possession since it is still in the courts' discretion to interpret whether an act contravenes the treaty or not." he said. Mr Palmer said he would look to the Maori people for direction and accept what they have to say.

Annette Sykes said “He doesn’t say which Maori people he will listen to however, and to ignore our sentiments is to ignore the endorsements of the Waitangi hui, Turangawaewae hui, Education hui, Waitangi Action Committee and other Maori opinion.’’

"As tangata whenua we want the Treaty to be entrenched as the constitution of Aotearoa to which all legislation must confirm before being passed into law,’’ said Annette Sykes to Mr Palmer.

We want Parliament to dissolve itself and reconstitute itself under the Treaty of Waitangi with legislation flowing on from this.

Mr Palmer said the idea interested him and he would like to see it developed. However he pointed out a probable challenge in the courts. “More research into the effect of legislation on Maori society is needed”, says Chief Judge Eddie Durie of the Maori Land Court. He told Maori lawyers it was important to have a group of lawyers in the Maori Affairs Department who could research and comment on proposed laws. He said there was no Maori perspective on many law changes. The Fisheries Act, Foresty Act, Harbour Act and Public Works Act were examples of legislation which could affect Maori communities. “In North America indigenous lawyers vet everything to see how it affects their people; I don't see that happening in Maori Affairs here,” he said. Judge Durie said research had to be done at an early stage. He said Maori people had tended to attack proposed changes after the select committee stage, and as it got closer to Cabinet approval it became difficult to change.

“Checking mortgages, leases or rents may not have been very stimulating to Maori Affairs lawyers in the past but I think there is a mood to focus on research, he said. Lack of funding for legal action often deterred Maori people from pursuing cases he said, or they go to a Maori lawyer in the hope of a “free job". “That's not fair on a person trying to establish themselves," he said. Judge Durie hopes a network of expertise in Maori law might be established through contracting work to private practice lawyers. If Department lawyers, after researching proposed legislation found grounds for action, the claimants would then be passed on to private practice lawyers. The Department of Maori Affairs should attract law graduates from the universities, he said. “We should look not only for Maori lawyers but anyone interested in Maori law," he said.