Treaty, Tribunal and Notions of Partnership

Mindful of a discernible pakeha backlash, however, Labour was not by any means prepared to address the more radical of Maori demands. This is understandable in the sense that the autonomist and other platforms were varied and often inchoate. But one aspirational strand did stand out so much that the Crown had no choice but to try to come to terms with it: the demand made by urban radicals and NZMC conservatives alike for the Crown to honour the Treaty. Maori acknowledged, of course, that circumstances had changed much since 1840, but the ‘spirit’/wairua of the Treaty needed to be confirmed and respected. The words increasingly used by various parties to encapsulate this concept were ‘the principles of the Treaty’. While the term ‘principles’ had been used by Prime Minister George Forbes in 1932, and not long after, Labour leader Michael Joseph Savage had pledged ‘to give effect to the spirit as well as the letter of the treaty’, extensive debate on ‘the principles’ had not occurred until the Maori Renaissance. In 1975, the last year of the short-lived Labour government, the Waitangi Tribunal was established to investigate contemporary Maori grievances. The Treaty of Waitangi Act, by which the Tribunal was bound, made reference to the ‘principles of the Treaty’ and their ‘practical application’. While the principles were not defined in the legislation, and needed to be determined by the Tribunal, the focus on the Treaty and what it meant would prove to be of great significance for the legal and political advancement of Maori causes.¹⁸

Getting the Tribunal established had been far from easy. Rata had quickly gathered influential Maori advisers such as Pat Hohepa around him. Among other things, he had begun, early on in the life of the government, to listen to Maori claims for compensation for past wrongs. The new ministerial and official ethos gave Maori hope. So, too, did increasing pakeha awareness of the Maori past and the Crown’s coercive involvement in it. Information came in a variety of forms. In 1974, Michael King and Barry Barclay produced a highly successful television documentary with the self-explanatory titlepage 165 Tangata Whenua, The People of the Land. Books on Maori subjects were increasing, and Witi Ihimaera spearheaded a Maori literary renaissance that complemented the political one. Dick Scott’s account of Parihaka was expanded and rewritten. The ‘new book’, Scott later reminisced, ‘came out in a different country, Parihaka photos and headlines capturing all the newspapers, the Herald reporting that 2800 copies of a 3600 print run had sold within nine days of publication’.¹⁹

But despite such relatively favourable political circumstances, even a determined Rata could not get his ministerial colleagues to agree to the possibility of reparations for historical breaches of the Treaty. He attempted to persuade Cabinet that the proposed Waitangi Tribunal ought to have jurisdiction back to 1900, a compromise (based on spurious advice that historical material was lacking) from the ideal of retrospective jurisdiction back to1840. But even such a limited historical mandate – covering the years after the major resource and autonomy losses had occurred – was seen as being too threatening for the general pakeha constituency to accept. The Waitangi Tribunal, therefore, was given the authority to investigate only those grievances against the Crown which dated from the passing of the Treaty of Waitangi Act. Even then, as a standing commission of enquiry, it could only produce findings and make recommendations to the government. In line with Labour’s ‘equality’ principles, it was intended that the Tribunal focus on what later came to be called Article Three-based grievances, those relating to Maori being denied the rights that all citizens were supposed to enjoy. With no mandate to examine the past, let alone to assist the quest for Article Two-based rangatiratanga, the Tribunal was seen by many Maori as a gesture that did little either to compensate for past devastation or to institute a ‘partnership’ between Maori and the state.

Some notion of partnership between Maori authorities and the Crown – a concept arguably held by the chiefs in 1840 – had been evoked within Crown circles in earlier times. Lord Bledisloe, in gifting the Treaty house and grounds at Waitangi to the nation in 1934, for example, had hoped the site would come to symbolise the ‘unique relationship between the indigenous and colonising peoples’. In the early 1970s, the Maori Organisation on Human Rights criticised the government’s policies of ‘absorption rather than partnership’. It was not until the mid-1970s, however, that the concept of partnership acquired any great currency; from then, gradually, the notion evolved, eventually informing the emergence of modern Treaty principles. In 1976 Rata posited that from the ‘spirit embraced in the Treaty of Waitangi … a unique partnership was founded upon mutual respect and understanding’.²⁰

The idea of reviving the concept of partnership gained increasing momentum as a potentially achievable goal that might satisfy both the state and Maori. The groundwork needed for this, the abandonment of the officialpage 166 policy of assimilation, had been laid by Labour in its brief period in office. That government, in responding to the Maori Renaissance, had often sought specialist Maori advice in its policy formation and implementation. Robert Mahuta, for example, had chaired a group which fed ideas into the education arena on how the country could become ‘truly bicultural and bilingual’. In 1973, Rata rejected ‘negative integration’, and the following year, Kirk declared New Zealand to be ‘one nation in which all have equal rights, but we are two peoples’. By the time of Labour’s exit from office in 1975, assimilation had, in effect, disappeared as Crown policy. The strength displayed by Maoridom, bolstered by a growing number of pakeha who saw value in biculturalism and partnership, was such that no successor government envisaged returning even to a policy of ‘integration’.

But a great many questions and difficulties remained. What, for example, did ‘partnership’ imply, and what bodies should constitute the Maori partners? A number of influential Maori were supplying answers which envisaged partnerships between the Crown and iwi institutions. To facilitate this, various tribes sought to build up stronger politico-economic bases, some operating independently of the Crown in doing so. From the mid-1970s, for example, Ngati Raukawa, Te Atiawa and Ngati Toa in the southern North Island implemented Whakatupuranga Rua Mano, a tribal development plan which looked towards a rebuilding of rangatiratanga in the twenty-first century, based on hapu-led development. Others utilised official channels; after being approached by Frank Winter and other tribal leaders, Tipene O’Regan agreed to join Ngai Tahu’s trust board with the aim of helping regenerate the major South Island iwi.

Some developments were not tribally based, including officially sanctioned projects with commercial foci such as Paraninihi ki Waitotara, established in 1976 to better administer, on behalf of multiple shareholders, Maori-owned leasehold lands on the western seaboard of the North Island. In urban areas, official and voluntary associations which were ‘groping towards the idea of a community’ set about boosting their resources with the assistance of a Crown now more willing to help. Ultimately, large ‘Maori urban authorities’ also emerged, independently of the state but often providing contractual services to it. There was widespread resistance from iwi- or hapu-based groups to Crown assistance for, or even dealing with, such urban organisations – assistance or contracts which, they believed, should best go to tribal authorities embodying continuity with the past. But the Waitangi Tribunal would eventually declare urban authorities to have a status similar to that of iwi. Maori socio-political reorganisation was, in short, continually flexible in seeking maximal results from collective endeavours and in negotiating arrangements of many and varied kinds with the state.²¹

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In time, Maori were encouraged in their pursuit of rangatiratanga by the Waitangi Tribunal’s strictures regarding the past behaviour of the Crown and its guidelines on how state authorities should behave henceforth. With hindsight, the creation of the Waitangi Tribunal has sometimes been viewed (in the words of a right-wing analyst) ‘merely as a response to the threat of disorder posed by longstanding Maori agitation. Essentially political responses are often cast in the moral idiom of a rectification of injustices’. Such a vision of the Tribunal, as a ‘touchstone for defusing’ protest, was (and is) shared in a number of Maori quarters and in some left-leaning pakeha circles. Even Matiu Rata is said to have ‘intended the Tribunal to be a social and cultural safety valve’. In the words of a later Tribunal head, the Tribunal represented a ‘shift from protest to process’. But, whatever Parliament’s motivations in establishing it, and despite the limitations of its mandate, the setting up of the Waitangi Tribunal was widely interpreted as a crucial step toward the Crown’s honouring of the Treaty. Rata had called the Treaty ‘an instrument of mutuality’, and after a lacklustre start, the Tribunal became given to exploring the appropriate configurations of the Crown–Maori relationship.

In 1975, however, the Labour government faced enormous challenge from Maori, a consequence of the exceedingly high hopes they (and liberal pakeha) had held at the prospects of what ‘their party’ might effect in addressing rangatiratanga. In the event, the government had not been prepared to push the parameters of its Maori policies too far beyond the views of its (mostly pakeha) support base. Disappointment at the pace and extent of reform was palpable, and many Maori perceived continuity with previous governments in Labour’s deflection of key demands. A political scientist noted that so great were Maori expectations, and so mixed the responses of a government cautiously feeling its way into post-assimilation policies, that ‘the result was bound to be confusion and disappointment’. In such a climate, Nga Tamatoa and other groupings gained increasing support for their protests, and conservative Maori too began to mobilise.²²