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The Treaty of Waitangi inContemporary New Zealand PoliticsDominic O'Sullivan aa Charles Sturt University ,Published online: 21 Jul 2008.

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The Treaty of Waitangi in Contemporary

New Zealand Politics

DOMINIC O’SULLIVAN

Charles Sturt University

This paper identifies three discourses that are prominent in contemporaryTreaty of Waitangi policy debate, each with significantly different implicationsfor Maori political status within the modern nation-state. At one extreme theTreaty’s significance is exaggerated by overemphasis on partnership as animplicit Treaty principle. At another extreme the Treaty’s significance isunderstated by an assimilationist position that denies the Treaty’s relevance toIndigenous rights which, in turn, imposes serious constraint on the extent towhich partnership can actually develop into comprehensive policy practice.An alternative position is one that sees the Treaty, which is supported ininternational law, as affirming a twofold conception of citizenship as the basisof both individual and collective Maori rights.

Introduction

The Treaty of Waitangi, signed in 1840, is the agreement from which NewZealand’s constitutional government has developed. In 2007 it ‘dominates’ NewZealand’s ‘intellectual landscape’ (Sharp 2004, 201) to the extent that, in policyterms, ‘Treaty’ has become synonymous with ‘Maori’. Yet it was in 1922 thatApirana Ngata noted that the Treaty ‘is on the lips of the humble and the great,of the ignorant and of the thoughtful’ (Ngata as quoted in Hill 2004, 129). In2005 Trevor Mallard made the same point, the ‘Treaty is both bigger andsmaller than many people think’ (Mallard 2004). Although 83 years apart andfrom different political perspectives, both ministers identified the same tensionamong those who, from whatever position, understate or overstate thesignificance of the Treaty. This tension has created a political backlash thatattributes responsibility for perceived racial divisions to the Treaty itself, ratherthan to prejudices, or even legitimate disagreements, which limit Maorienjoyment of a twofold conception of citizenship implicit not just in the Treatybut in internationally authoritative recognition of Indigenous rights to self-determination through, for example, the United Nations’ Draft Declaration on

Dominic O’Sullivan has a PhD in Political Science from the University of Waikato, and iscurrently a lecturer in Indigeneous Studies at Charles Sturt University. He thanks the Journal’sreferees for their helpful comments on this paper.This paper develops arguments discussed in the author’s book Beyond Biculturalism: The Politicsof an Indigenous Minority. Wellington: Huia Publishers, 2007.

Australian Journal of Political Science,Vol. 43, No. 2, June 2008, pp. 317 – 331

ISSN 1036-1146 print; ISSN 1363-030X online/08/020317-15 � 2008 Australasian Political Studies Association

DOI: 10.1080/10361140802035804

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the Rights of Indigenous Peoples. The Draft Declaration’s working definition ofthe right to self-determination is that:

By virtue of this right, they [Indigenous peoples] freely determine theirrelationship with the states in which they live, in a spirit of co-existence withother citizens, and freely pursue their economic, social, cultural and spiritualdevelopment in conditions of freedom and dignity. (United Nations 1993)

In the New Zealand context, the Declaration’s principles have beendeveloped by Mason Durie into ‘broad aims of self-determination’, which are

. . . the advancement of Maori people as Maori and the protection of theenvironment for future generations. Economic self-sufficiency, social equity,cultural affirmation, and political power, stand alongside a firm Maoriidentity strengthened by access to whanau, hapu, and iwi and confirmationthat future generations of Maori will be able to enjoy their lands and forests,rivers and lakes, harbours and the sea and the air. These goals underlie thesignificance of Maori self-determination. (Durie 1998, 239)

Alongside individual citizenship of the nation-state Maori might also,therefore, claim tribal citizenship, giving rise to certain hereditary rightsthat, rather than being concerned with priority access to hospital care, forexample, as populist rhetoric might suggest, are concerned with being ableto live according to preferred cultural norms, to seek collective recompensefor land and cultural alienation, and to exercise collective developmentrights. In this view, collective rights are an expression of full and equalcitizenship.An alternative position offered by the former Leader of the Opposition

National Party, Don Brash, which remains influential even after his resignationin December 2006, is that Maori rights can be reduced to individual citizenshiprights, with the main public policy implication being that Maori have thesame right as anybody to state assistance in times of need. Maori werematerially poor individuals with needs, not a people with rights. Brashargued that:

Many things happened to the Maori people that should not have happened.There were injustices, and the Treaty process is an attempt to acknowledgethat, and to make a gesture at recompense. But it is only that. It can be nomore than that. (Brash 2004)

These arguments, together with the Foreshore and Seabed Act 2004(discussed later in this article), challenged Maori conceptions of citizenship.They highlighted why it is problematic to interpret the Treaty as establishinga partnership between Maori and the Crown, which ought to be the basis ofan ongoing bicultural public policy. This article argues that, although theTreaty is central to contemporary public policy thinking, its utility to Maori

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shifts with ‘the vagaries of political will’ (Maaka and Fleras 2005, 104)because:

Conceptions of justice are inherited by a political society and they change asthey are continually argued about and negotiated by persons – artificial aswell as natural – who hold them. (Sharp 1997, 318)

Maori interests are, therefore, better served by pursuing the broad andinclusive conception of citizenship that the Treaty implies, rather than byseeking political advancement through partnership, which is an overstatementof the Treaty’s contemporary value to Maori. Similarly, a re-crafted citizenshipoffers greater potential to meet contemporary Maori interests than does the‘one law for all’ assimilationist path proposed by Brash, which is a seriousunderstatement of the Treaty’s public policy relevance.

The Treaty Partnership

The Crown maintains that through the Treaty, Maori ceded sovereignty which,in a modern context, means Parliamentary sovereignty: ‘Neither the provisionsof the Treaty of Waitangi nor its principles are as a matter of law, a restraint onthe legislative supremacy of Parliament’ (Justice Somers in New Zealand MaoriCouncil v. Attorney General 1987, 641). At the same time, however, the Treaty’sguarantees to Maori impose certain obligations on the Crown becausepartnership is implicit in the agreement. Most recently, authoritatively andinfluentially, the partnership principle was explained in 1987 in the Court ofAppeal case New Zealand Maori Council v. Attorney General.

The Treaty signified a partnership between Pakeha and Maori requiring eachto act towards the other reasonably and with the utmost good faith. Therelationship between the Treaty partners creates responsibilities analogousto fiduciary duties. The duty of the Crown is not merely passive but extends toactive protection of Maori people and their use of their lands and waters tothe fullest extent practicable. (President Cooke, 642).

The partnership principle implies reciprocity and obligations that eachpartner has to the other (Kawharu 2005, 106), which becomes problematicwhen expectations between partners and among the disparate components ofeach are different. Principles, too, ‘have often found refuge in vagueness andambiguous generalisations’ (Kawharu 2005, 107).Partnership does not challenge a political order where ‘as long as dominant

groups keep a monopoly of defining the others, the decolonization of the mindand need for real economic, political, cultural, and linguistic decolonization isdifficult to achieve’ (Skutnabb-Kangas 1996, 130). The Treaty is, therefore,useful as a political framework for self-determination only to the extent thatgovernments are effective agents of change. Government agency is limited byeconomic, as well as political, considerations. It extends only to the boundariesset by the body politic at a domestic level, and by the wider internationaleconomic and political factors that limit domestic sovereignty.

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The state’s ability to function as a ‘partner’ is constrained by its ownbureaucratic institutions and the power relationships among the executive,legislative and judicial branches of government, and between ministers anddepartments. Treaty debates, too, often miss the implications of an increasinglydivided sovereignty, which means that power and opportunity are located inmultiple sites beyond the state. Beyond its own sphere, the state’s capacity as‘partner’ is influenced further and shaped by a multitude of non-state actors; forexample, political parties, lobby groups, sectional interests, international law,the international economy and global political factors.The Nationhood speech and Foreshore and Seabed Act 2004 are discussed

later in this article to show the nature and extent of contemporary domesticconstraints on partnership. The greatest difficulty with the idea that the Treatyestablished a ‘partnership’ between Maori and the Crown is, however, that theCrown includes Maori. By virtue of their citizenship Maori are part of thenational polity and, therefore, have as of right a share in the collective popularsovereignty quite apart from any political implications of first occupancy.There is roughly proportionate Maori membership of the Parliament andExecutive, for instance. If Pakeha is substituted for Crown then the Treaty is,in fact, nullified. McHugh accepts ‘the authority of the Crown withoutnecessarily making it synonymous with the Pakeha polity . . . [and seeks to]locate Maori inside that national sovereignty’ (McHugh 2005). Sovereigntydoes not belong to the post-settler population alone, which means that it isgrossly misleading and exclusionary to use interchangeably the words ‘Pakeha’and ‘Crown’, or to think about political relationships in terms of a specificPakeha polity, existing in partnership with a distinct Maori polity. It is,therefore, politically and constitutionally odd for the Maori Party to claimthat it is ‘the Treaty partner of the Crown in Parliament’ (Maori Party 2005).The Treaty was signed between the Crown and iwi and hapu, yet it isindividuals, not iwi and hapu, who comprise the Maori Party. As Bargh (2006)points out, in casting their votes, Maori voters represent themselves, not iwiand hapu. Furthermore, is the Maori Party suggesting that its members couldenter the Executive yet remain partners rather than members of a key Crowninstitution? It would be similarly odd if, as an opposition party, the MaoriParty was to claim partnership with the government. The Maori Party holdsfour of the seven Maori constituencies and came second to the New ZealandLabour Party in the Party Vote ballots in all seven Maori constituencies (NewZealand Electoral Commission 2005), which does not suggest a Maorimandate for its position. Most significantly, however, the Maori Partyposition privileges partnership over the Article 3 Treaty guarantee ofindividual Maori citizenship rights, meaning that there is no prospect of thetwofold conception of citizenship that the Treaty more obviously seemsto state.The Treaty is a ‘lawful basis for appeal against the acts of the legislative and

administrative branches of government’ (Sharp 2005, 313). It is a guard againstpolitical or administrative interference in the pursuit of self-determination, withthe proviso that it is always subject to the potentially more powerful sovereigntyof Parliament. It is a moral constraint but, against the weight of numbers, it isunlikely ever to be a sustainable political constraint. But the Treaty is also aparadoxical instrument of claim to the restoration of Maori authority.

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Although it was never the Maori understanding, governments inevitablyinterpret the Treaty as ceding sovereignty because, in the Westminster tradition,if Parliament is not sovereign, there is no basis for constitutional government.As the deputy Prime Minister Michael Cullen argued, ‘The power of Parliamentto change the law is central to the exercise of sovereignty and, therefore, thecontemporary exercise of Article One of the Treaty’ (Cullen 2004). Unlessinherent rights of Indigeneity are recognised this view can reinforce Maoriperceptions of junior partnership in an inevitably colonial bicultural relation-ship. For Maori the Treaty was a statement of mana (authority) and an attemptto preserve authority, so that change could be managed. If anything was cededto the British, it was sovereignty over its own settlers; not sovereignty overMaori that would displace their rangatiratanga: ‘only the shadow of the landgoes to the Queen but the substance remains with us’ (Nopera Panakareao, ascited in Orange 1987, 87). Like the treaties between the British Crown andnative Canadians, the Treaty of Waitangi ‘provided leeway to adapt, within theframework of their own traditions to the demands of a changing world’(Dickason 2000, 23). Treaties were a strategy to manage settlement so that self-determination could be secured, not surrendered.

Tino Rangatiratanga and Treaty Settlements

Maori more commonly stress the Treaty’s extant guarantee to tinorangatiratanga (chiefly authority) as the essential basis for self-determinationover their own affairs as a fundamental right of citizenship and as the basis ofWaitangi Tribunal claims against the Crown. Tino rangatiratanga assumesthat:

Maori are entitled to possess, manage and control all their own taonga[treasures] in accordance with their own cultural preferences and customs,including the right of Maori to have all other taonga expressly recognised andprotected by the Crown (Wihongi, as cited in Waitangi Tribunal 1998, 248).

As an example of tino rangatiratanga’s wider public policy significance, theRaukawa Trust Board claims that:

tino rangatiratanga means Raukawa descendants having the right todetermine what happens to its whanau, hapu and marae. This includes fullgovernance and management over Raukawa affairs, design and developmentof its own services and sustainable economic activity and enterprise.(Raukawa Trust Board, Undated)

The Maori Party Co-leader, Peter Sharples, suggests that tino rangatiratangameans that:

Maori communities would be entitled to continue to identify themselves, andto manage their own affairs, in accordance with Maori custom and values.(Sharples 2007)

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The Waitangi Tribunal accepts that:

The protection of tino rangatiratanga means that iwi and hapu must be ableto express their autonomy in the maintenance and development of theirlanguage and their culture. (Waitangi Tribunal 1990, 44)

The principal political implication of tino rangatiratanga is, then, that collectivecitizenship underpins the ways in which Maori claim and express the right toself-determination. It is especially significant that restoration, at least to thefullest extent possible, of collective economic, social and cultural bases throughTreaty settlements is among the foundations of contemporary Maori prosper-ity. Settlements do not, however, approach a true level of compensation for lostassets, lost opportunity and cultural disruption. They imply pragmaticacceptance by claimants that their opportunity for recompense is limited bygovernment policies of fiscal prudence and caution about alarming an alreadysuspicious non-Maori electorate. There is immediately, therefore, a constrainton partnership. ‘The difference between what was taken, and what can bereturned, represents a massive contribution by iwi to the national economy’(Flavell 2006). Indeed, settlements usually amount to less than 1% of the land’svalue, and over the past 10 years the approximately NZ$800 million spent onsettlements accounts for about 1.6% of annual government expenditure overeach of the 10 years (United Nations 2006). The Crown’s pursuit ofreconciliation is, indeed, eased by a remarkably concessionary approach byMaori. Concession, perhaps, reflects a political desire to be part of a commonnation but without the assimilationist overtones of the ‘one New Zealand’, ‘weare all New Zealanders’ solution to political arrangements.As Sharp points out, much of the public discussion about settlements has not

been concerned with the specifics of any one case but with the propriety ofreparation itself (Sharp 1997, 104), which undermines the possibility ofpartnership. There is a wider public ignorance of the significance of the tribein Maori life; it is not well understood that resources were not taken fromMaori, but from iwi and hapu. A general lack of interest in New Zealandhistory and ill-informed political debate are further barriers to the emergence ofa body politic that is willing to consider objectively Maori claims to reparation.Public discussion is often so ill informed that one might think that there are ‘notmany separate cases but one big case’, which partly explains public impatiencewith the Treaty settlement process (Sharp 1997, 104). If one cannot identify towhom a wrong was done because one sees one big claim rather than manyseparate claims, one may accept the justice of reparation but not appreciate itsnature. Treaty settlements are, therefore, a case study in power relationships,which often reflect Scott’s view that: ‘The public transcript, where it is notpositively misleading, is unlikely to tell the whole story about power relations’(Scott 1990, 2). When there are unequal power relations the dominant party canreconstruct history in its own terms by creating negative stereotypes of endlessgreed as popular mythology. The power of one group must be relative to that ofanother, which is why the return of land is spoken about in popular discourse as‘giving’. In this way justice is removed from the discussion and any sense of‘right’ in Maori claims is diminished. With it, the prospect for partnership as thebasis of political relationships is also diminished.

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Discussion of an individual case might, however, draw out the principles atstake, as well as provide an example of the nature of self-determination. Theclaim of the Northland iwi (tribe) Ngati Kahu is illustrative. Ngati Kahu waited19 years from the time its claim was lodged until it began settlement negotiationswith the Crown. The tribal aspiration was to ‘once again come to enjoy andprosper from their own ancestral lands and seas’ (Mutu 2005, 187). To that endNgati Kahu seeks the return of its tribal lands, rivers, foreshores and fisheries, aswell as restitution for the ‘innumerable breaches of the Treaty by the Crown’.Ngati Kahu’s land alienation was comprehensive and is the single mostimportant factor explaining its contemporary economic deprivation. Mutudescribes the main issues that were put before the Waitangi Tribunal:

. As a result of pre-1840 transactions, which Ngati Kahu understood to betemporary allocations of use rights, tuku whenua, and not permanentalienations, as claimed by Pakeha settlers and the Crown, Ngati Kahu lostcontrol of 22,707 hectares.

. Surplus lands were retained by the Crown after investigating the pre-Treatytransactions that should have been retained by Ngati Kahu. The Crownacquired more than 12,000 hectares of Ngati Kahu lands using thismechanism.

. Crown purchases of Maori land between 1840 and 1865 were, like the pre-Treaty transactions, tuku whenua and not permanent alienations. NgatiKahu lost control of a further 51,576 hectares to Crown purchases.

. The Consolidation and Land Development schemes, which were adminis-tered through the Department of Maori Affairs and the Maori Land Court,involved the consolidation of large numbers of shares over several blocks indifferent areas into shares in one block, effectively disinheriting the owners ofmultiple ancestral rights.

. The operations of the Native/Maori Land Court, which commenced in 1865,in transferring as much land as possible from Maori control to Pakehacontrol . . .

. Crown denial of article three [Treaty] rights has resulted in a lack of properand adequate education, health services, road infrastructure, housing,employment, and the myriad other entitlements delivered to non-Maori inthe district.

Ngati Kahu remains in settlement negotiations with the Crown because:

The Tribunal considers the . . . claimants have been prejudiced by the lack ofbasic protective measure as that of requiring the Government to prove itsacquisitions and to document how it came by Maori land. . . . It is consideredthat other Maori may have been adversely affected in the same way and may besimilarly prejudiced in future. The Tribunal foreshadows a recommendation tothe effect that for all Crown land there should be a title, and that the source ofthe Crown’s right to the land should be clearly enrolled in an instrumentlodged with the District Land Registrar. . . Any such recommendation, in theTribunal’s view, should not relieve the Government from establishing the basisfor its claim to any particular land, or how the native title thereover wasextinguished, in appropriate historical cases. (Mutu 2005, 197)

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The national settlement of fisheries claims, which was extensively debatedand litigated during the 1990s, demonstrated the injustices that can arise from aone big case approach to the settlement of a multitude of smaller grievances,with the smaller parties excluded from any suggestion of partnership. Afteraccepting the Waitangi Tribunal findings that restitution was due for Crowndisruptions to Maori fishing, it considered philosophical questions about whoexactly should receive reparation. Should it be all Maori or should it be justthose with sufficiently well-established connections to an iwi who couldestablish and quantify a grievance? The question was decided in the former andthe Treaty of Waitangi Fisheries Commission Te Ohu Kaimoana (TOKM) wasestablished under the Maori Fisheries Act 2004 to design an allocation model,and to hold the assets in trust until they could be distributed. The settlementprovoked a clash between ethnicity and tribalism. Iwi agency was underminedby creating a competitive environment in which iwi and hapu would challengeone another for the greatest share of the asset. The dispute was a case study inthe ‘politics of entitlement’ (Maaka and Fleras 2005, 90). It showed how thebicultural framework ignores inter- and intra-iwi and hapu (subtribes)relationships, while at the same time the settlement made these relationshipscritical to development. The redistribution model, which was ultimatelyimposed, did not actually provide compensation on the strength of aquantifiable tribal grievance. The model was an exception to the general policyrule of privileging iwi as the unit of engagement with government. It furtherundermined iwi authority by taking entitlement from where the Treaty wouldsuggest it belongs, and giving it to a national body to redistribute. So, althoughthe Treaty is usually held to be the protector and upholder of traditional rights,it has, on occasion, been in the Treaty’s name, through exclusionarysettlements, that the self-identified rights and claims to justice of small iwiand hapu have been usurped.

The Nationhood Speech

The protracted arguments over settlements, the one big case misconceptions,and over statements of the Treaty’s role in public life, have added to popularsuspicion of Maori claims, especially the claim that, by virtue of the Treaty,Maori are owed specific rights that may not be owed to others. Indeed, thereason that Maori have consistently seen more value in the Treaty than thegeneral public is that it has been the predominant moral, political and legalframework for Maori discussion of ‘rights’ since the first Crown breaches of theagreement in 1840. In contemporary politics the most significant challenge tothe rights discourse was made by the National Party Leader, Don Brash, in hisNationhood speech at Orewa in 2004. Although Brash resigned as leader inDecember 2006, his speech was agenda-setting, and its ideas continue toinfluence Maori policy debate. Brash raised the question of whether Maori arepeoples with rights or individuals with needs. It also oversimplified complicatedpolicy initiatives intended to reduce social and economic disparities betweenMaori and non-Maori. Brash did not oppose the proposition that suchdisparities are the proper concern of public policy, but he saw that objective in avery narrow context, separated from the cultural imperatives that informbroader Maori aspirations.

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Brash asserted that ‘Maori New Zealanders who are in need are as entitled toassistance as any other New Zealanders who are in need’. He placed thisargument in ideological contrast with an alleged government recognition of aMaori ‘birthright to the upperhand’ (Brash 2004). If, however, Maori are alsoas entitled as anybody else to assistance in moving from welfare dependency tomaterial independence, what justification, pragmatic or theoretical, is there forinsisting that assistance take the same administrative form without regard tocultural context? The assumption that need and its addressing are consistentacross cultures is demonstrably invalid, and liberal democracy struggles toexpress its underlying principle of equality when it views individuals, Maori orother, as devoid of cultural being. An exclusive focus on immediate materialneed also removes attention from the right to address the causes of relativepoverty and the right to be part of solutions to deprivation. Instead, Maoriclaim a birthright to live as Maori, participate as citizens of the world, andenjoy good health and high standards of living (Durie 2001). The claims toreceive health care and education services in preferred cultural contexts, and theright to possess land and resources without fear of expropriation bygovernment, are not claims to ‘extra rights’ but claims to the rights ofcitizenship. The purpose of those rights is for Maori to exercise self-responsibility; that is, the opportunity for Maori communities to makedecisions for themselves against their own criteria and in pursuit of self-definedgoals. Furthermore, it is the opportunity to take responsibility for one’ssuccesses and failures, and to avoid passive reception of what is determined byoutsiders as best for Maori communities. Self-determination is a different butequal expression of the citizenship rights claimed by all. It is a right that manywish to pursue collectively and in their own cultural and political context.In similar vain to Brash, Birch argues that it is better to speak of a democratic

obligation on governments to help the disadvantaged rather than to speak ofminority rights (Birch 1999, 64). This position does not consider that it isprecisely because of their Indigeneity that colonisation has marginalised Maoriculture and economic independence. A liberal democratic obligation to help thedisadvantaged is not philosophically rooted in the same notion of justice thatlegitimises the Maori reclamation of culture and identity. Rights are not anyeasier to translate into practical public policy, but they are just, and avoid thepossibility of Maori being viewed for policy purposes as simply anotherdisadvantaged minority, without substantive implication of Indigeneity. Thedistinction between rights and needs is important because Maori who arewealthy have exactly the same right to language and culture as Maori who arepoor. Social status is irrelevant to one’s right to live as Maori. The distinctionbetween needs and rights is also important because there are different moralprinciples underlying each.Like Indigenous Australians and native Canadians, Maori seek recognition

of collective rights in the nation-state not on the basis of need or disadvantage,nor even on the grounds of compensation, but on the basis of ‘ancestraloccupation’ (Fleras 2000, 129). In New Zealand, original occupation issufficient moral foundation for particular recognition beyond biculturalpartnerships’ ‘commitment to accommodate by grafting bits of Indigenousculture around a monocultural core’ (Maaka and Fleras 2005, 54). At the sametime, the Treaty means and, indeed, requires that Maori are part of the

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New Zealand nation-state, not partners with it. Inclusion seeks to redress‘colonial injustices that undermine cohesiveness’ (Maaka and Fleras 2005, 249),so its potential is unifying.

The politicisation of [I]ndigeneity draws the Crown into the most contentiousof all relations; namely, a politicised minefield involving a shifting and openlycontested relationship between relatively autonomous, independently sourcedpolitical communities, with each claiming intrinsic authority over respectivejurisdiction related to rights, resources and recognition. Not surprisingly, theprospect of re-formulating foundational principles for ‘sharing the land’cannot possibly proceed without challenging the underlying constitutionalorder. (Maaka and Fleras 2005, 255)

Maori claims can be understood as part of a politics of Indigeneity, whichemphasises the right to be different in some senses and the same in others – theopportunity to live in the modern world while at the same time preserving anancient cultural heritage (Fleras and Elliot 1996, 191). Indigeneity assumes atransformative function, allowing Indigenous peoples to think about the termsof their ‘belonging’ to a wider polity, but also about their political status asautonomous peoples belonging not just to a national jurisdiction but to theirown communities with independent political status in their own right. TheTreaty does not imply a superior form of citizenship, although its dualconception of citizenship does, however, make citizenship itself a ‘site ofstruggle’ (Maaka and Fleras 2005, 43) for Maori when critics use it as atheoretical justification for denying authority and identity.For Maori, an overriding principle is that rights are not ‘delegated by the

magnanimous coloniser, but inherent because of prior Maori occupancy andthe Crown’s failure to explicitly extinguish these rights’ (Maaka and Fleras2005, 144). This was the point of contention in the arguments that surroundedthe foreshore and seabed legislation in 2004.

The Foreshore and Seabed Act 2004

The Foreshore and Seabed Act 2004 responded to the 2003 court case Ngati Apav. Attorney-General during which the Court of Appeal was asked the simplequestion: Does the Maori Land Court have jurisdiction to consider title to theforeshore and seabed? The Court’s answer was ‘yes’, but with the caution thatthe test for such consideration resulting in fee simple title was high and likely tobe granted only rarely. The Court held that the High Court and Maori LandCourt have jurisdiction, when appropriate legal criteria are met, ‘to declare theforeshore and seabed to be customary land and award it in fee simple. Wherecustomary rights of Maori are found to subsist, those rights will burden theCrown title or, where the rights are sufficiently ample, override or replace it’(Waitangi Tribunal 2004).Prior to the decision, the Crown and non-Maori public had generally assumed

that the foreshore and seabed was owned by the Crown. The realisation that thisassumption was not in fact clear in law was used by political parties to create afear among non-Maori New Zealanders that their access to the foreshore forrecreational purposes would be obstructed. At no stage in the ensuing public

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debate did Ngati Apa or any other Maori group suggest that this was theobjective. Indeed, remarks to the contrary were made by Te Ope Mana a Tai, anational representative body of iwi with interest in the coastal marine area: ‘Wewill continue to allow public access to the beach for private recreational use’ (TeOpe Mana a Tai 2003, 20). In a model provided for iwi members to makesubmissions to the Parliamentary Select Committee considering the Foreshoreand Seabed Bill 2003, the Northland iwi Te Rarawa suggested that the Bill bewithdrawn and, instead, ‘the option of legislating to confirm public access . . . beexplored’ (Te Runanga o Te Rarawa 2004). Rather than wanting to excludeoutsiders from the beaches, Solomon correctly points out that the Maoriaccommodation of other people’s interests in post-settlement times is ‘beyondreproach’. But, as he continues, ‘Perception, especially when it promotes yourown political agenda, is more potent than reality’ (Solomon 2005, 215).The right to use land for economic and cultural purposes was the principle

Ngati Apa tried to secure. Prior to the foreshore and seabed case, courts hadrecognised that Maori interests in natural resources are proprietary, whichmeans that there is an interest in resource development rather than just the‘perpetuation of customary practices’ (Durie 1998). There were also WaitangiTribunal precedents; for example, the Te Ika Whenua Energy Assets Report, theMuriwhenua Fishing Report, the Ngai Tahu Sea Fisheries Report, the MohakaRiver Report, the Kiwifruit Marketing Report, and the Ngawha and Te Arawageothermal reports (Edmunds 2004, 118) were all concerned with developmentof traditional resources as a right of first occupancy. Indeed, the WaitangiTribunal has taken the view that a right to development is ‘inherent in theTreaty’ and that ‘. . . [a]ccess to new technology and markets was part of thequid pro quo for settlement’ (Waitangi Tribunal 1992, 10.2.1). This view issupported in international law by the United Nations’ Declaration on the Rightto Development’s assertion that the

. . . right to development is an inalienable human right by virtue of whichevery human person and all peoples are entitled to participate in, contributeto, and enjoy economic, social, cultural and political development, in whichall human rights and fundamental freedoms can be fully realized. (UnitedNations 1986, 1.1)

Property is, however, central to power and wealth, and the Ngati Apaobjective was to regain authority, inevitably at the expense of privatecommercial interests. Although not, as it was claimed by others, at the expenseof individual recreational interests. The primary significance of the foreshoreissue was that it ‘telescoped into a single burning controversy the issues that hadsurrounded aboriginal rights-recognition and integration through the previousdecade’ (McHugh 2005, 300).The Government’s response was that ‘full legal and beneficial ownership of

the public foreshore and seabed will be vested in the Crown, to preserve itfor the people of New Zealand’ (Foreshore and Seabed Bill 2004). At the sametime, the Government argued that Maori rights would be protected by

. . . a new jurisdiction for the Maori Land Court to enable it to recogniseancestral connection of Maori groups with particular areas of the public

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foreshore and seabed through a customary rights order. This order recognisesan activity, use, or practice, but does not grant an estate or interest in land.(Foreshore and Seabed Bill 2004)

This assertion of government authority diminished the extent to which Maorimay exercise self-determination with regard to management and use of theforeshore and seabed. It was the perceived diminishing of customary authoritythat explained the widespread Maori opposition to the Government’sproposals. It was the view of the Waitangi Tribunal that the proposals did,indeed, diminish authority, breached the Treaty of Waitangi and demonstratedracial prejudice. The Tribunal observed that the policy

. . . removes the ability of Maori to go to the High Court and the Maori LandCourt for definition and declaration of their legal rights in the foreshore andseabed. . . In removing the means by which the rights would be declared, iteffectively removes the rights themselves, whatever their number and quality.It removes property rights. . . taking them away amounts to expropriation.(Waitangi Tribunal 2004)

The Foreshore and Seabed Act 2004 removed the right to ask a Court todetermine whether or not a property right exists, which clearly limits access todue legal process. This, in contrast to conceptions inspiring the populistrhetorical cry of ‘one law for all’, created a lesser law for Maori communitiesthan was available to individuals. It did this by abolishing private propertyrights held only by Maori. Article Two of the Treaty was breached because theAct overrode the guarantee of Maori to ‘full exclusive and undisturbedpossession of their Lands and Estates, Forests, Fisheries and such otherProperties as they may collectively or individually possess, so long as it is theirwish and desire to retain the same in their posession’ (Orange 1987). Theforeshore and seabed debate showed that it is equal rights not special rights thatare needed to secure self-determination. The United Nations’ SpecialRapporteur’s conclusion that the ‘latent crisis’ broke against the backgroundof Maori having ‘to accept sporadic and insufficient redress’ for other Treatygrievances ‘only to be faced with accusations that they were receiving undueprivileges’ gave international endorsement to the Tribunal’s findings. Thiscongruence of international with domestic legal arguments against theForeshore and Seabed Act was important at a time in New Zealand’s politicalhistory when reactions to Brash’s Nationhood speech were demonstrating, asFleras and Elliot suggest for Canada, the truth of predictions that it was onlyever going to be a matter of time before policy developments towardsIndigeneity would be interrupted by ‘public apathy or political backlash’(Fleras 1999, 397). Indeed, the backlash had become so strong and the debateso emotively and rhetorically charged that the Special Rapporteur recom-mended that participants ‘refrain from using language that may incite racial orethnic intolerance’ (United Nations 2006). The United Nations’ Committee onthe Elimination of Racial Discrimination Decision on Foreshore and SeabedAct 2004 also expressed concern ‘about the political atmosphere’ that emergedas the implications of the Ngati Apa decision were considered (United Nations

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2005). The atmosphere ensured that there could not be any foundation forpartnership to replace, or even complement, tino rangatiratanga as a politicalbasis for Maori to secure inherent rights of first occupancy confirmed by theTreaty.

Conclusion

The Treaty is both bigger and smaller than many people think. It is, however,these differences in perspective, not the Treaty itself, that explain perceivedracial divisions in modern New Zealand politics. Neither partnership norassimilation is required by the Treaty which, instead, assumes political space forMaori to exercise citizenship both collectively and individually, with different,but not inevitably, superior rights to other citizens. Although the partnershipprinciple does have strong legal authority, it does not enjoy the political supportto make its realisation possible. Public support for the Nationhood speech andthe Foreshore and Seabed Act 2004 provide compelling evidence. They alsoreflect the depth of pubic antipathy towards collective citizenship rights. Theserights, however, have been the basis of successful Waitangi Tribunal claims,provide a source of development rights and are expressed more easily inconcrete form than vague notions of partnership make possible. The Treaty,therefore, has a significant role in supporting Maori legal and political claims,which means that it is always likely to assume a central position in New Zealandpolitics.

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