HISTORY OF THE WAITANGI TRIBUNAL

but pollution had resulted, and there were further plans that the Motunui synthetic petrol plant would discharge waste in the same area. The reefs and fishing grounds belonged to particular marae and hapū, who were thus denied the fishing rights guaranteed under the Treaty.

In March 1983 – just over 40 years ago – the Waitangi Tribunal issued its report on a claim by Te Āti Awa regarding the Waitara fishing grounds. The report was a landmark, being the first one in which it seemed that the Tribunal might have real influence and be prepared to use that influence. Over the next few years, the Tribunal reshaped the discussion around the Treaty of Waitangi.

The Tribunal was established by the Treaty of Waitangi Act 1975 in the final weeks of the third Labour government’s term. The Act was taken through Parliament by Northern Māori MP Matiu Rata, the first Māori to hold the Māori Affairs portfolio in 40 years.

The 1975 legislation was cautious. It provided for a Tribunal of three. The Chief Judge of the Māori Land Court would chair the Tribunal; of the other two members, one was to be Māori. The Tribunal’s jurisdiction was limited to Crown policy and action after the Act came into effect. The Act recognised that the Treaty texts were in English and in Māori and gave the Tribunal “exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them”.

Given its limitation to 1975 onwards and the narrow way in which it interpreted its powers, the Tribunal initially had minimal impact. The first claim was brought, in 1977, by Joe Hawke, who had been prosecuted for breaching fisheries regulations. Hawke had taken shellfish from the traditional Ngāti Whātua fishing grounds; he maintained that the Treaty guaranteed customary fishing rights and that, therefore, the fisheries regulations under which he had been prosecuted were in breach of the Treaty. The Tribunal held that Hawke had suffered no prejudice because he had been discharged without conviction.

What changed things was the appointment, in 1980, of Edward Taihakurei Durie as the first Māori Chief Judge of the Māori Land Court. In June 1981, Aila Taylor filed the claim on behalf of Te Āti Awa. There were two issues: local authorities had allowed the discharge of treated sewage over or near certain fishing reefs,

The Tribunal decided to hear the case on a Te Āti Awa marae, which would, as the report noted, mean Māori “would be better able to express their feelings and make their concerns known”, and the Tribunal itself would be “able to reach the real heart of the matter”. The Tribunal upheld the claim, recommended that the Motunui outfall not proceed, and found that the Treaty obliged the Crown to protect Māori use of their fishing grounds, and “to confer upon the hapū most closely associated there with certain rights of control”.

Over the next four years, the Tribunal would hear other landmark cases in which it developed its approach to the Treaty. The Tribunal emphasised the “surrounding circumstances” and the declared intention. Thus, the protection of Māori interests was emphasised by the Colonial Office, by the governor and his agents, and by Māori signatories themselves.

On the language issue, the Tribunal used orthodox principles whereby ambiguity between languages is resolved against the interests of the party that wrote the Treaty, as well as United States jurisprudence that treaties with indigenous peoples were to be understood in the sense that the indigenous people themselves understood them.

Thus, the Māori version, te Tiriti, was accorded significant weight. In the Manukau report (1985), the Tribunal stated that Article 1’s kāwanatanga was something less than sovereignty, and Article 2’s tino rangatiratanga was something more than a simple property right. It followed, too, that Māori were not just one minority among others.

Notably, the Tribunal maintained that the Treaty “was not intended to merely fossilise a status quo, but to provide direction for future growth and development”. One consequence of this was that in the 1980s, the Crown was obliged to protect te reo Māori, even though its endangerment had not been foreseen in 1840 (and that taonga were intangible as well as tangible).

In 1985 the fourth Labour government gave the Tribunal power to inquire into grievances extending back to 6 February 1840. Matiu Rata left Labour in 1980 and established a new Mana Motuhake party, and although it had little electoral success, it posed a challenge to Rata’s old party. More widely, the climate of protest continued. Apart from anything else, Geoffrey Palmer and Koro Wetere – Minister of Justice and Māori Affairs, respectively – believed the amendment was essential to resolve historical grievances.

and excluded iwi and hapū. The Tribunal found that Māori had never handed over control of the fishery and that the Treaty guarantee is of fisheries as a tribal property – it is not enough to say that individual Māori may fish commercially –and that fisheries included the right to develop the fishery.

In Ngāi Tahu, the claim was that in the ‘purchases’ between 1844 and 1864, the Crown had not kept its side of the bargain. It had not provided the reserves on the scale Ngāi Tahu had expected, instead imposing small areas that allowed a bare subsistence. The cash prices were derisory. Ngāi Tahu were progressively denied access to natural resources, mahinga kai. Again, the claim was upheld and, as was becoming usual, iwi and Crown negotiated a settlement.

None of the negotiations between iwi and Crown were straightforward, and some since the 1990s have taken an inordinately long time. Tribunal reports since the 1990s have opened up an understanding of historical and contemporary issues, as well as extending the analyses of those earlier reports. Although there is a long road ahead, the Tribunal has ensured that the Treaty is no longer regarded as a relic or mere symbol.

Orākei – the site of the long Bastion Point occupation in 1977-78 – was the first historic case. The state had failed to protect Ngāti Whātua ownership of the lands they had wanted to keep and had indeed done things calculated to undermine that ownership. Orākei was quickly followed by Muriwhenua Fishing and by Ngāi Tahu.

Muriwhenua – five iwi of the far north – claimed that the Crown had presumed to manage and regulate the fishery. The new Quota Management System effectively created property rights in the fishery

Tribunal reports featured this cover design by Cliff Whiting, “invoking the signing of the Treaty of Waitangi and the consequent development of Māori-Pākehā history interwoven in Aotearoa, in a pattern not yet completely known, still unfolding. Reproduced by courtesy of the Waitangi Tribunal.