Tribunal recommendations

Tu Tangata, Issue 12, 1 June 1983, Page 4

Tribunal recommendations

There never has been a Treaty of Waitangi.

Historians know of five versions drafted in English, all of them different.

One English version was translated into Maori, but that English version was lost.

One copy of the Treaty in English was certified. One copy of the Treaty in Maori was certified. Some Maoris signed the English version, most signed the Maori. The English version is not an accurate translation of the Maori version.

Since 1847 the Maori people have used the Treaty as evidence in court cases, but never successfully. In law the Treaty is not ratified, it has no force.

To the Pakeha legal brain that means you can wriggle out of anything because the treaty has no status and is confusing. To the Maori legal brain the differences are immaterial and the status of the treaty is strong.

Thus the Treaty of Waitangi tribunal states in its report: “for over a century the Maori people have placed a significance on the Treaty far in excess of that given by the general public”.

In a crucial section of the tribunal’s report the meaning of the Treaty to New Zealanders is strongly argued. While the Treaty's status in law may be arguable, “no argument has been adduced to question the existence of the Treaty as such or to deny the moral obligation it imposed”. New Zealand Governments and the courts have a poor record compared to other countries in this matter. In North America, for example, the original Indian populations have been recognised and their rights protected whether they have a Treaty or not. In Canada, native hunting, Trapping and fishing rights took priority during the building of a major oil pipeline across the country. “The overseas experience must cause us to re-think our perception of the Treaty of Waitangi and of its significance,” the tribunal states. The words of the Treaty should be a guide only. Again overseas, the rights of native populations can extend beyond the actual words of a Treaty to include customary rights still exercised. The lesson in New Zealand is clear. “The spirit of the Treaty transcends the sum total of its component written words and puts narrow or literal interpretations out of place”. Since the Treaty’s whole purpose was the protection of Maori rights, the

Maori version and the Maori understanding of what that version means in practical terms, should prevail where there is any quarrel. Applying this approach, the Tribunal comes to some clear conclusions. These can be summarised as:- □ The reefs involved in Te Atiawa’s grievance and the river are significant and traditional fishing grounds still used. □ Those at the mouth of the Waitara River are badly polluted and will get worse. □ A Synthetic fuels plant outfall at Motunui would probably pollute clean reefs. □ The Treaty obliges the Crown to protect Maori fishing grounds from pollution or destruction wherever practicable. □ The mana of the Maori people to be able to control their own fishing grounds ought to be upheld. □ The Te Atiawa people concerned are not getting the protection guaranteed under the Treaty, and their grievances are not even given priority over other considerations in development planning. □ The Government’s laws, regulations, policies and practices in this regard are actually contrary to the principles of the Treaty. It was this attitude towards the Trea-

ty in relation to Te Atiawa’s claim that led logically to the tribunal’s recommendations. which are designed to rectify the injustices. In the wider arena, the Tribunal has, for the first time, set out clearly the way it considers the Treaty should be applied in grievances before it. The approach must give encouragement to Maoris considering use of the Tribunal in airing grievances under the Treaty, because the principles contained have much wider application than merely to Te Atiawa’s case. But the Tribunal goes even further. It states that the Treaty was not merely designed to ensure existing rights were upheld, but was also intended as a blue print to provide direction for future growth and development in New Zealand. “The Treaty was an acknowledgement of Maori existence, of their prior occupation of the land and of an intent that the Maori presence would remain and be respected. It made us one country, but acknowledged that we were two people. It established the regime not for uni-culturalism, but for bi-cul-turalism. We do not consider that we need feel threatened by that, but rather that we should be proud of it, and learn to capitalise on this diversity as a positive way of improving our individual and collective performance.’’