The World Justice Forum, Vienna, Austria, July 2-5, 2008 is a program of the World Justice Project (WJP), which is rooted in two complementary premises. First, the rule of law is the foundation for communities of opportunity and equity. Second, collaboration across disciplines is the most effective way to advance the rule of law.

“People perish, but land is permanent”

Seeking justice for the historical claims of indigenous people in New Zealand

A contribution to the American Bar Association’s Access to Justice project for presentation at the World Justice Forum

By

Dr David V Williams

Professor of Law

University of Auckland

Aotearoa New Zealand

“Whatu ngarongaro he tangata, Toitu te whenua.”

“People perish, but land is permanent”

Seeking justice for the historical claims of indigenous people in Aotearoa New Zealand

Introduction

  1. This paper is intended as a case study for the consideration of those who are gathering under the auspices of the American Bar Association at a World Justice Forum in Vienna for an inquiry into the role of the rule of law in providing communities with opportunity and equity. The notion of ‘rule of law’ is of course a contestable concept. It is not only peripheral applications of the concept but even the very core of its meaning or meanings that can be and indeed are contested.[1] Nevertheless, for the purposes of this Forum, I take it as given that eliminating impediments for citizens and communities to obtain access to justice is a critical component in enhancing compliance with rule of law principles in any legal system. Usually, though, ‘access to justice’ writings focus on contemporary issues and the barriers faced by individuals and communities seeking to obtain a fair hearing and due process. This case study concerns another aspect of ‘justice’: justice for communities of people who seek a contemporary forum for the consideration of historical injustices they have suffered and which arguably continue to impact negatively on members of those communities.
  1. There are a number of historical injustice issues that are now being considered and argued about in courts and other fora, and commented on by scholars in many parts of the world. The negative social and economic status in contemporary conditions of some communities, it is alleged, may be direct consequences of historical injustices. These injustices cannot be addressed in ordinary legal proceedings because legal systems have statutes of limitation and doctrines of laches preventing claims being litigated long after the events in question. Nevertheless, in some instances high profile political and legal strategies have been resorted to in campaigns for reparations. Reparations sought may range from governmental apologies to a community, to affirmative action programmes for members of the group, to monetary awards of one sort or another – though invariably monetary awards are set at a quantum of ‘redress’ that is considerably less generous that full and fair ‘compensation’ might require. Examples include the communities of Afro-American and Afro-Caribbean people descended from those subjected to trans-Atlantic transport and subjection as slaves; communities of Chinese descended from migrants subjected to poll tax regimes and other discriminatory practices; communities of Japanese Americans whose ancestors were forcibly relocated and confined in war-time.
  1. This paper is concerned with reparations sought for historical injustices committed against indigenous peoples whose countries were subjected to European colonialism. This is a topic of increasing importance given the adoption by the General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples on 13 September 2007.[2] It is also now the subject of great scholarly interest in many parts of the world.[3] In general terms, the paper is concerned with regions colonised and settled by European settlers to such a large extent that the indigenous communities were rendered a marginalised minority within what, for many centuries prior to the incursions of colonialism, had been their own lands under their own control. The political subordination and economic subsumption of the many indigenous peoples in the American continents (North and South) and in the Australasian colonies (now comprised in Australia and New Zealand) are the most obvious examples of European settler colonialism leading to the nearly total displacement of indigenous peoples from their lands. This case study, however, relates only to the indigenous Maori communities in the modern nation of New Zealand, now also commonly known by one of its Maori names: Aotearoa. There is some diversity in the social ordering of the various Maori communities, tribes and nations in Aotearoa, but there are also strong genealogical links between them and a common language. In many parts of the world there may be ambiguity or doubt as to the meaning of the term ‘indigenous peoples’, as for example in Malaysia where it may or may not be important for different purposes to distinguish between Malay Bumiputera and Orang Asli (in Peninsular Malaysia) and tribal peoples of Sabah and Sarawak (in East Malaysia).[4] In Aotearoa, however, there were only Maori communities who had ever populated these islands prior to the arrival of European traders and settlers and a few Chinese migrants in the years immediately before and after the establishment of the colony. Numbers of other migrant communities have contributed to the population mix in more recent years and it is now common to speak of multiculturalism in our nation. The origins of the nation, however, were bicultural – a meeting of indigenous Maori with British officials and settler Europeans.
  1. The forum for justice considered in this case study is the Waitangi Tribunal, a permanent commission of inquiry established by an Act of the New Zealand Parliament - the Treaty of Waitangi Act 1975 - to inquire into and report on claims brought by Maori against the Crown. ‘The Crown’ is New Zealand law shorthand for the executive government of New Zealand as representative of the successive administrations – imperial, colonial and national - responsible for parliamentary law-making and for government policy in New Zealand since the proclamation of British colonial rule in 1840. The Treaty of Waitangi was a treaty document signed at the inception of colonial rule in 1840. Its ongoing guarantees to the Maori signatories and their communities from most (but not all) parts of the New Zealand islands are generally understood to in some way to qualify or modify the governance and sovereignty rights claimed by the Crown in right of New Zealand.[5] In almost all parts of the world the decolonisation processes of the second half of the twentieth century consigned colonial treaties with indigenous peoples into the dustbins of history. The colonised peoples, always the majority population in most territories colonised by European empires, have exercised their rights to self-determination and independence. Their governments are now members of the United Nations. Treaties from the colonial era remain important, however, for indigenous peoples – sometimes called the ‘Fourth World’ – for whom there has been no decolonisation.
  1. The opportunity for Maori claimants to seek some form of justice or equity in respect of their many historical grievances against the Crown was first created when the Waitangi Tribunal was granted a retrospective jurisdiction by the Treaty of Waitangi Amendment Act 1985. This mechanism permitted inquiries into matters from long ago excluded from litigation by limitation statutes. The Tribunal does not possess powers of adjudication, but in 1985 it was empowered to make findings of historical facts and to make recommendations as to how the historical prejudice suffered by successful claimants might be redressed. A large proportion of nearly 100 report issued by the Tribunal relate to historical claims.[6] The Tribunal was established before the Truth and Reconciliation Commission in South Africa popularised such commissions as a means to inquire into painful and politically charged episodes from the past in various countries. Yet the Tribunal’s work does encourage some elements of the cathartic healing for historic injustices that might emerge in truth and reconciliation proceedings elsewhere. Indeed most Maori are fully aware of the somewhat derisory financial or economic redress that is available to large Maori groupings under the government’s current Office Treaty Settlements policies as set out in Healing the past, building a future.[7]Hence, whilst seeking such economic redress as is available, they nevertheless place great store in obtaining the satisfaction of published findings by the Waitangi Tribunal
  2. that the Crown acted dishonourably in the past;
  3. that the unsuccessful attempts of their ancestors to protect their community against Crown policies have been vindicated; and
  4. that the Crown now owes them an apology for past breaches of the Treaty of Waitangi.
  1. This paper, however, is not focussed on the outcomes of Waitangi Tribunal proceedings. Rather, it is concerned first to note that ‘justice’ can and should include retrospective inquiry into the historical injustices suffered by indigenous peoples marginalised by colonialist laws and policies designed to benefit the European-origin settlers. Secondly, that ‘access to justice’ in this context must include access to historical information collected into convincing reports by competent historians and access to skilled legal representation to advance convincing arguments for claimants. Thirdly, that sometimes a justice process needs to be reminded that the processes have been put in place to seek ‘justice’ for the communities who have suffered from past injustices. The intention must be actually to resolve grievances, rather than to keep a sense of grievance alive. The processes are not there merely to enrich the indigenous elite, lawyers and experts who play roles in the Tribunal and Office of Treaty Settlement processes that may occupy many years of litigation and negotiation.
  1. I turn now to the importance of land in the self-identification of Maori communities, to the near total loss of ancestral land under the laws and policies of colonialism, and to reasons for establishing the Waitangi Tribunal in order to address these historical issues in a contemporary context.

The cosmological importance of land for Maori people

  1. The Maori proverb quoted in the title of this paper reflects the special significance of land in Maori cultural knowledge systems and the social, economic and spiritual connectedness of Maori as the indigenous people of Aotearoa New Zealand with their ancestral lands. Patu Hohepa, a Professor of Maori Studies and former chair of the Maori Language Commission, writes about whenua – the Maori word for land – in this way:[8]

For Maori, whenua has an added meaning, being the human placenta or afterbirth. Through various birth ceremonies the placenta is returned to the land, and that results in each Maori person having personal, spiritual, symbolic and sacred links to the land where their whenua (placenta) is part of the whenua (land). The words “nooku teenei whenua” (This is my land) is given a much stronger meaning because of the above extensions. Having ancestral and birth connections the above is also translated as “I belong to this land, so do my ancestors, and when I die I join them so I too will be totally part of this land.”

Maori Marsden, a reknowned expert in the old teachings of Maori cultural knowledge systems, has written of the personification by Maori of whenua as Papatuanuku, the “Primordial Mother”, in these words:[9]

Papatuanuku is our mother and deserves our love and respect. She is a living organism with her own biological systems and functions creating and supplying a web of support systems for all her children whether man, animal, bird, tree, grass, microbes or insects.

Papatuanuku’s children live and function in a symbiotic relationship. From unicellular through to more complex multicellular organisms each species depends on other species as well as its own, to provide the basic biological needs for existence. The different species contribute to the welfare of other species and together they help to sustain the biological functions of their primeval mother, herself a living organism.

Wiremu Parker, a Maori educationalist who staunchly maintained the importance of Maori cultural knowledge systems even during the height of governmental policies in favour of integration during the 1950s and 1960s, cited ancient aphorisms of Maori social identity as follows:[10]

The source of his physical sustenance, of his very blood from time immemorial, the object of deep emotional attachment in song, poetry and oratory, the prized heritage of tribe and family, land lay at the very core of a people’s mana. Land was for ever.

He rarangi maunga tu te ao, tu te po! He rarangi tangata ka ngaro, ka ngaro!

(A row of hills and mountains can be seen by day and night! A row of people disappears, disappears!)

Whatu ngarongaro he tangata, Toitu te whenua!

(Man perishes, But land is permanent!)

The political and economic importance of land to colonisers

  1. The paradigms of land tenure written by the British Colonial Office in instructions to the first Governor of New Zealand, as implemented by the Land Claims Ordinance 1841, were very different to the Maori understandings quoted above. The 1841 Ordinance enacted that “all unappropriated lands within the said Colony of New Zealand, subject however to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said Colony, are and remain Crown or Domain Lands of Her Majesty”. This was a legislative assertion of the radical title of the Crown to all land, subject only to extinguishable use-rights for Maori in what later came to be known in imperial and colonial law as the ‘common law doctrine of aboriginal title’. In modern times the Waitangi Tribunal has commented on the adverse consequences of the radical title doctrine for Maori.[11] Eddie Taihakurei Durie, the first Maori lawyer to be appointed Chief Judge of the Maori Land Court (and later a High Court judge) and the Tribunal’s long-serving chairperson, in extra-judicial remarks queried the basis for ‘some legal magic from England’ being applied in the circumstances of the colony of New Zealand.[12] Durie pointed to the fact that by the English Laws Act 1858, section 1: ‘The laws of England as existing on the 14th day of January 1840, shall, so far as applicable to the circumstances of the said Colony of New Zealand, be deemed and taken to have been in force therein on and after that day’. To what extent, queried Durie in the 1990s, might English doctrines of law give way to Maori conceptions that the common law presumptions and the doctrines of tenure were inapplicable to the circumstances of New Zealand?
  1. British officials in the 1840s did not even ask, let alone answer, the sort of questions Durie posed with regard to the Crown’s radical title. Rather they pondered whether, prior to the issuance of Crown grants to land, Maori customary rights had first to be extinguished in respect of all land desired by the government and settlers, or only in respect of land actually occupied and cultivated by Maori tribes in 1840. There were some inconsistent views expressed within the Colonial Office and in the imperial and colonial legislatures on “waste lands”, on the nature and extent of Maori rights over uncultivated areas of land, and on the proper means to extinguish Maori rights (in respect of both ‘cultivated’ and ‘uncultivated’ lands) as rapidly as possible.[13] The official imperial line explicitly followed the private property theories of John Locke:[14] [So] much does the right of property go along with labour, that civilized nations have never scrupled to take possession of countries inhabited only by tribes of savages – countries which have been hunted over but never subdued or cultivated.
  1. There were a number of mechanisms by which Maori were lawfullydispossessed (so far as the colonial state was concerned) of their ancestral lands. All of these mechanisms have now been the subject of powerful critiques by the Waitangi Tribunal. These included:
  2. the validation of ‘Old Land Claims’ whereby speculating land sharks, traders and missionaries received Crown titles for portions of land allegedly ‘sold’ by Maori prior to 1840, and the Crown assumed for itself (without payment) any ‘surplus lands’ arising from such transactions;[15]
  3. the acquisition by ‘Deeds of Purchase’ of immense blocks of territory in those parts of the islands (especially the South Island and the lower North Island) that were least densely populated by Maori, in return for promises (often unfulfilled) to provide reserves, schools, hospitals, etc;[16]
  4. the confiscation of large areas of land in more populated districts where Maori communities fought military campaigns in defence of their lands against non-consensual colonial intrusions, and found their self-defence defined as ‘rebellion’ and ‘treason’ - thus justifying punitive confiscations;[17]
  5. the establishment of a Native Land Court – better described in my own view as Te Kooti tango whenua [‘The Land Taking Court’][18] - designed to promote the sale of land to the Crown or private settlers by undermining ‘native communism’ and replacing it with a chaotic system of quasi-individualised fractional interests in land (beyond the control of customary Maori decision-making procedures).[19]
  1. Maori were by no means hapless victims of these colonial depredations. The outmoded version of history that expected indigenous peoples to succumb to the ‘fatal impact’ of colonization was most certainly never relevant to what happened in New Zealand. On the contrary, by thousands of letters, petitions to Parliament, and journeys to meet the monarch in London; by scores of superior court cases and thousands of Native Land Court applications for re-hearings; by military campaigns against British imperial forces and colonial militia, and by guerrilla warfare; by non-violent passive resistance to surveying and to unwelcome taxes; by religious prophetic movements to oppose oppression and by political movements to try to foster Maori unity, to influence governments, and to elect Maori Members of Parliament – by all means at their disposal, and in every decade of New Zealand history, Maori did seek to retain their ancestral land and to oppose settler incursions.[20] Their efforts were to little avail. The various Crown mechanisms described above to relieve Maori of their land interests combined together to transfer about 50% of the land area of New Zealand to Crown and settlers within 15 years of colonial rule commencing, 75% of it had gone in 1890 after 50 years of colonialism, and 90% by about 1910. Maps cannot tell an indigenous people’s stories of pain and dispossession, but they can disclose the bare facts of that dispossession.[21] As of 2008, only 1.3 million hectares, just under five percent of the total 26.4 million hectares in the country, remains in a qualified form of collective Maori control, subject to the jurisdiction of the Maori Land Court, that is known as ‘Maori freehold land’. That court, quite unlike its original pro-alienation purposes as the Native Land Court, now has a statutory duty facilitate and promote the retention, use, development and control of Maori land by Maori owners.[22] It is but a tiny remnant of land that remains to Maori for their own use and development. The vast majority of Maori, even though many of them retain strong links to ancestral lands in a number of ways, are now by necessity urban-dwelling people.[23] Indeed, the extraordinary achievement of Maori communities is that they have flourished and grown over the years in spite of all the many decades of efforts to eliminate or undermine Maori cultural knowledge systems. As is obvious from the tenor of this paper, the loss of ancestral lands by colonial spoliations remained a sore grievance within Maori communities, mostly passed on by oral traditions, and it emerged again as a critical issue in New Zealand society in the 1970s.

The Waitangi Tribunal’s own vision of its purposes