Memorial portrait, Queen Victoria , , England, by Walery. Over 40 rangatira signed the Treaty at Waitangi, among them many who had signed the Declaration of Independence. Their agreement was important, but Hobson wanted a lot more signatures so he could confidently claim British sovereignty over New Zealand. To get those signatures, he took the Treaty on the road. Two parties, two understandings: What does the Treaty of Waitangi mean?
Signing over sovereignty? The benefits of signing The reasons why chiefs signed the Treaty varied from region to region. The British or the French? More than a Treaty The business of getting things moving comes first. The people of Rotorua are staring at their lake, which has turned a brilliant green as if it has just been painted with glaring enamel.
It was no surprise. During one particular storm, one creek was estimated to have dumped 50, tonnes of dirt, dung and dead animals into Lake Rotorua. All of which was causing the weeds and algae to flourish. But when such plants die, their rotting uses up huge amounts of oxygen. Continuing farm runoff and sewage discharges would turn the lake into a poisoned pond.
From the lake the waters of death would flow down the Ohau Channel into Lake Rotoiti, and from there to the Kaituna River and down to Maketu on the Bay of Plenty coast. Any sort of improvement would cost frightening amounts of money, but the government would pay part of the improvement as long as the Ministry of Works agreed with what was to be done. They depend on Maketu for seafood, and the Ngati Pikiao, an Arawa subtribe living alongside the Kaituna, also use the river for eels and freshwater crayfish.
There is one exception: the tribunal may make decisions about some government-owned land, and when it does, the government must obey. Bums, even dressed bums, do not mix with food. Water used for cleaning must not be allowed to get into water to be used for cooking.
So the argument from the Ngati Pikiao was that if purified effluent from a sewage-treatment plant were poured into the river, the Ngati Pikiao would not be able to fish in the river or even collect plants for basket weaving from its banks. And now, the complex part of the Kaituna finding. So they were on a bit of a legal scouting expedition, seeing how far their territory stretched and what their powers were worth. Prendergast had ruled that, instead, the British had won New Zealand by being the first civilised occupier of a territory thinly occupied by barbarians who lacked any form of law.
In other words, Prendergast said: Ignore the treaty, it is nothing. So the really basic function of the Kaituna hearing was not sewage or pipelines — that was only on the surface. The real purpose was to give the tribunal a chance to dig down into the law and discover whether the treaty was meaningless, or whether it still had in law the power and force which both sides must have believed it had on the first Waitangi Day. This was a very big question, and the answer to it is still shaking the whole country.
Also, it was limited in the sort of complaints it could listen to, and at that stage it had no authority to decide anything. It was very much aware that it had inferior powers to most other courts, but, because it had been told to act as guardian of the treaty, it had to determine what force still remained in the treaty promises.
Not so. The answer the tribunal came up with is now making some people frightened that their homes will be taken from them. It is tempting some politicians to spread fears about Maori activism. So the crucial witness at the Kai-tuna hearing gave no evidence about the purity of sewage effluent, nor about lakes, nor about viruses in mussels. Instead, he had pages of research into legal history and 26 pages of footnotes. He is listed in the official finding of the tribunal as P.
McHugh, fellow of Sidney Sussex College, Cambridge University, and his argument was that Prendergast got it all wrong by thinking of the treaty as a matter of international law. In fact, longer than two centuries. Easily said. But what authority could he quote to show this was not just a one-man theory?
The Privy Council judgement sounds quite snappish. This had been unwelcome news to a settler government, which later tried to get around the Privy Council ruling by writing the Native Land Act of in a way that virtually gave the government the right to seize customary Maori land.
McHugh put it this way: the land law was probably itself without power, simply because it was in conflict with the treaty. Property rights over fisheries, for example, were not challenged. Indeed, fishing rights had been specifically protected in the Fisheries Act of Here is a translation: Lawyers who help Parliament write new laws need to warn MPs that new laws will no longer stand up in court if they do not fit the ideas behind the treaty.
That recommendation remains the most powerful thing the tribunal has done. The government decision to accept the recommendation raises the treaty to the standing of a set of principles that must guide all future laws. Since the tribunal made its Kai-tuna finding, the power of the treaty has been buttressed and enshrined by two authorities, Professor Jock Brookfield, Dean of the Auckland Law School, and Sir Robin Cooke, president of the Court of Appeal.
When he became professor of public law at Auckland University, Brookfield had to perform a ritual duty and give an inaugural lecture before judges, fellow-professors and senior lawyers. He is a mild-looking man and he told his audience not to be deceived by his appearance.
The core of his argument is that under the treaty the Crown gained a country, but since it has failed to pay in full the price it had agreed on. As an independent democracy we have all inherited the obligations and powers assumed by Queen Victoria when in spirit she presided over the first Waitangi Day. They confiscated Maori land. They even sent Maori into exile. And they passed a grossly unjust law which allowed the government to disregard customary land ownership.
Two years after he spoke, the power of the treaty faced the severest test that a court in New Zealand can apply. So the Maori Council asked for a court order that would delay Crown land transfers until Maori claims had been heard.
Otherwise, the land going to state-owned enterprises would cease to be Crown land and would become private land, and, because the Waitangi Tribunal has no powers — repeat, no powers — over private land, former Crown land that had originally been gained wrongfully would forever be beyond the powers of the tribunal.
What was really going on in the Court of Appeal was that the power of the Treaty of Waitangi itself was on trial. Sir Robin Cooke added pointedly that the Court of Appeal will insist that the duties which the treaty imposes must be honoured. It was the spirit that counted, said the court, and the spirit of the treaty was that each side should deal with the other with the utmost good faith.
Depending on how much the sewage has been treated and the size of the town, the sea will be heavily fouled or only slightly fouled, and as cities grow the fouling will get worse. Less obviously, the plant food in sewage is wasted — all that natural fertiliser is being thrown away. The tribunal heard that in other places — Melbourne is an example — sewage effluent goes on to the land, and members wondered whether we in New Zealand had ignored land-disposal methods only because most cities are on the coast.
Suddenly the answer seemed obvious. So this is the direction Rotorua is taking. If the idea works as well there as it does elsewhere, including America, nearly all the worrying stuff going into the lake will be turned into trees and then into money. As a back-up, strips of farmland around the lake are being planted in trees to trap the runoff.
It claimed that four reefs off the coast between New Plymouth and Waitara were in danger from all the muck being poured into the sea off Waitara. As places go, Waitara does not look much. It is on the northern Taranaki coast, north-north-west of Mt Taranaki, and you can drive through without noticing a great deal, except that the town has a lot of Maori people and a big freezing works which used to be owned by Borthwicks, but now wears the name Affco.
Pick up any book of New Zealand history, though. Look up Waitara in the index and be surprised at how often the place gets mentioned. The land wars started here in when Te Teira, one of the chiefs of the Atiawa people, who live along the north Taranaki coast, agreed to sell land to Governor Gore Browne.
Te Teira probably knew he had no personal right to sell, because the ownership of the land rested with other people as well, including his ariki, Wiremu Kingi. At a meeting called by Gore Browne, Kingi forbade the sale and walked out on the governor. One private died in the attack — and the land wars were rolling. For Wiremu Kingi it was to be a long campaign: he resisted for twelve years before acknowledging that he was beaten.
It was only fair that Borthwicks should pay most of the cost, because the freezing works produced as much effluent as a town of 80, people. The refuse that went into the sea was still in its raw state, just minced up and pumped out through a metre pipeline which had never worked properly. It had broken even while it was being laid on the seabed, and on the surface of the water you could see a revolting brown discharge roiling and rolling above breaks in the pipeline.
Others developed boils. Worse was to come. And the synthetic-fuels plant wanted to push a pipeline into the sea near the Motunui reef for its own factory wastes. Full, exclusive and undisturbed is a straight quote from the treaty, and it turned out that Te Atiawa people were really asking for a great deal less than the treaty guarantees them. They did not want exclusive use; anyone from anywhere could collect fish from the reefs. And they did not want the full use of the reefs; they accepted that Borthwicks and all of Waitara were going to dump gunk somewhere in the sea for a long time to come and, because of that, they had already lost the use of part of their fishery and were prepared to live with the loss.
And what they now wanted done with it was simply to find ways of not ruining all the four reefs between Waitara and New Plymouth. But each had worked separately and had looked at things either from a narrow point of view or within a limited authority.
All of them had cut up one big waste-disposal problem into little bits, and then gone away on their own and examined their own piece. Because the tribunal meets informally and listens to evidence that is allowed to wander all over the place, it provided a forum for north Taranaki people to decide what sort of sewage system they wanted.
And the methanol plant, although allowed to use the Waitara outfall temporarily, decided independently to build its own land-based disposal works. Nevertheless, they took comfort from the thought that although the treaty seemed to have doubtful standing in court, no one had so far come before the tribunal to claim that the treaty imposed no moral obligations on anyone at all. From this the tribunal argued that New Zealanders create difficulties for themselves by thinking of the treaty of Waitangi as unique.
The difficulty is this: If the treaty has force, which versions do you obey? Part of the difficulty is eased by the Treaty of Waitangi Act under which the tribunal is established. First, the side that writes the treaty and then gets other people to sign it is presumed to understand what it has written better than the other side. So if there is a dispute because part of a treaty has two meanings, the meaning that most hurts the side that wrote the treaty wins.
One extra problem exists when treaties are written in two languages. One rule is that neither version is superior, but the Vienna Convention on the Law of Treaties, to which New Zealand is a party, seems to make the Maori version superior because it was this version that was taken around the country for the chiefs to sign: these were the words that the chiefs used when they gave the Crown the right to make laws here, so these are the words to be followed.
The reason for having to consider the relative status of the treaty texts was that the tribunal could act on the Atiawa complaint only if the fouling of the reef at Waitara was a breach of the treaty guarantee of fishing rights. What treaty guarantee of fishing rights? But the Maori version does not. The Maori version guarantees lands, habitations and treasured other things.
The tribunal had no trouble in finding that the use of the Waitara reef had been lost. It had been made revolting both to people and to fish. Mussels had been made so sick that people who risked gathering them found that the shells often crumbled in their hands. But what did the Maori version mean by treasured things? It took six years for the underlying meaning of the Waitara finding on Maori fisheries to reach down into the general understanding, and even then it took another tribunal finding to spell out the full force of the Waitara recommendations.
They are now helping to define how much of the modern fishing grounds must be returned to Maori control. Although the Waitangi Tribunal has, in fact, been a peacemaker at Waitara and in the Rotorua district, its objective is not to calm and soothe but to put right, where it can, some of the results of old injustices.
History cannot be unpicked; some injustices cannot be undone. One example of how the tribunal treats this instruction cropped up in the Manukau claim, when the people of Makaurau marae complained that engineering works had destroyed a creek that they used to use for pipi and mullet, and that their scallop and oyster beds had been concreted over.
The engineering works they were complaining about cover over hectares, and the marae people did not want compensation; they just wanted everything restored to the state it used to be. The reason, then, for the tribunal, is that, as with other countries, our present society is at least partly built on injustices. With us they were committed after solemn promises of fair dealing. But is anything to be gained today from feelings of guilt? Probably not. Then again, if correctable injustices are denied or ignored they can never be put right, and both treaty partners will be doomed to rising levels of tension.
And this was the greater part of all their land. But Waikato people did not want to sell, and by the tribes in the Maori King movement were united in their resolve to resist land sales to British settlers. It was doubly their right to resist.
They blew up all but one, and wrecked villages. It was therefore resolved to drive these poor men and women from their homes and confiscate their lands. There was no difficulty in finding a pretext. They were Maori and relatives of Potatau [the Maori king].
The first native to whom this cruel decree was made known was Tamati Ngapora, the uncle of the Maori king … Tamati and other Mangere Natives quite understood their alternatives. They all thanked the Pakeha for this last act of kindness in giving them timely warning of the evil that was to come upon Waikato and an opportunity of themselves escaping; but they could not forget that they were part of the Waikato and they must go and die with their fathers and friends.
What remained behind was looted by the colonial forces and the neighbouring settlers. At the same time, the French were seeking to establish a colony in the South Island. Such uncontrolled trends, they surmised, would be a disaster for the indigenous inhabitants. To solve these problems, in July of , William Hobson was dispatched from London with instructions to take the steps needed to claim this land for Britain. The decision-makers desired a clear process with integrity so that there would be no doubt under international law about the validity of the annexation, and the colonial competitors the French with similar interests in the same space would accept the conclusion.
The obvious difficulty was that the land was already settled with indigenous peoples, who were non-nomadic, and some had already made claims to independence which the British had, in part, accepted in the mids. This meant that if the British wanted to achieve their goal they had to persuade the leaders of these peoples to voluntarily give their assent to the imposition of colonial rule.
Despite the enormity of the task he was given, Hobson was not given a template drafted by the Home Office in London for a treaty and didn't have skilled lawyers in the area to help him either.
After having a national gathering of chiefs arranged at Waitangi in early February, Hobson had to create his own treaty with the assistance of his secretary James Freeman and James Busby, who was in essence the British ambassador in the country before Accordingly, the English preamble recorded that the Queen had sent a representative to acquire 'sovereign authority over the whole or any part of those islands'.
The English version of the First article of the Treaty related to the ultimate control and power of the country. This article recorded the chiefs ceding to the Crown "absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.
This is not a surprise, because the idea of national sovereignty would have been difficult to comprehend. Chiefs had authority over their own areas but there was no central ruler over the country. Although this may have been correct in one sense, in another, the depth of the national sovereignty the British were claiming was probably not what the chiefs thought they were agreeing to.
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