This page last modified 18 September 1998
Treaty of Waitangi & Maori claims
To
full text of 'Principle of 'Partnership'
A review of the
validity of a principle of 'partnership' under the Treaty of Waitangi,
and its application to the ownership and control of New Zealand's
public conservation and recreation estate
By Bruce Mason. Publisher: Public Access New Zealand Inc. December
1993
The Treaty of Waitangi is widely
regarded as the founding document for New Zealand. Many also regard
it as a 'sacred compact', whose words and interpretation are not
as important as the spirit that rises therefrom. Others view the
Treaty as a 'historical artifact'--a 'modest little document'
that has been adorned with sentiment and well-intentioned rhetoric.
Today it is hard to escape from talk of the Treaty, and related
grievances and claims over land and other resources. For instance
there is now greatly increased pressure on government assets,
and public lands such as national parks, for settlement of claims.
Claimants generally seek the return of land. Some also seek shared
management responsibility with the Crown.
The Government has taken upon itself the role of sole arbitrator
as to its liabilities under the Treaty and the assets it may use
in fulfilment of its perceived obligations. Many of those assets
include lands held in trust for the benefit of present and future
generations. Under the mantle of the Treaty and 'Treaty principles',
Government considers it is empowered to do as it alone sees fit
with the public estate.
As a consequence there is growing public apprehension that there
are profound changes in store to the nature of 'public' lands,
how they are managed, and for whose benefit.
Government and claimants are increasingly by-passing the Waitangi
Tribunal by direct negotiation of unproven claims. The Department
of Conservation is actively instigating the vesting of ownership
or control over public lands to Maori interests. This is occurring
under a justification of a duty under the Conservation Act "to
give effect to the principles of the Treaty of Waitangi".
The authorities assume that a principle of 'partnership' exists
between Maori and the Crown.
'Partnership' is commonly interpreted as meaning that a 50:50
entitlement exists between the Crown and Maori to ownership and
control of all natural resources.
Government has given impetus to high, but ill-founded, expectations
by stating that Maori are an equal partner with the Crown and
by implication entitled to half of every Crown-owned resource.
The prevalence of well-meaning rhetoric on the subject, mixed
with a residue of guilt, means that it is politically dangerous
and 'incorrect' to question the current orthodoxy. However the
implications for society of unquestioning application of currently
popular political perceptions are too grave to leave unexamined
and undebated.
The 'principles' of the Treaty
now have greater status under statute than the text of the Treaty
itself. Definitions of the principles of the Treaty have been
expressed by the Waitangi Tribunal, the Court of Appeal, and the
1988 Royal Commission on Social Policy.
The major development in the concept of 'partnership' under the
Treaty has been at the Court of Appeal. The 1987 New Zealand Maori
Council (SOE lands case) provides the starting point for legal
significance being attached to the concept of 'partnership' under
the Treaty.
In the 1987 case the Court held that the Treaty signified a partnership
between Pakeha and Maori requiring each to act towards the other
reasonably and with the utmost good faith.
The body of the Court's decision contains no definition of what
is meant by 'partnership'.
Notions of 'sharing' and 'equality' that have inevitably risen,
make the Court's use of an analogy of 'partnership' surprising.
The Chairman of the Court later elaborated on the meaning of a
Treaty 'partnership' when he indicated that the concept of partnership
does not mean that every asset or resource in which Maori have
some justifiable claim to share should be divided equally.
Another principle derived from the Treaty, that of 'equality',
is of major significance. The dichotomy between a 'partnership'
rather than 'equal citizenship' view of the Treaty underlies the
conflict that has emerged over the Department of Conservation's
interpretations of their duty to "give effect to the principles
of the Treaty of Waitangi" by way of a 'partnership' with
Maori.
DOC sees continued ownership of public lands and waters as incidental
to its role as a 'steward', and the tangata whenua and its interests
as indivisible. 'Higher authority' for management will come from
iwi rather than from the purposes set out in administering statutes.
Consequently the public will not be able to call to account either
the department or Minister of Conservation.
It appears that DOC has taken no notice of subsequent developments
to the 'partnership' model at the Court of Appeal but has chosen
to pursue its own vision, latterly reinforced by ill-founded utterances
from the Minister, that Maori and Pakeha are "equal treaty
partners".
The 'partnership' model is now well installed in the department,
and receiving uncritical, mechanical application through all policy
and operational areas.
The concept of a 'Treaty partnership'
arises from a perceived need for the sharing and re-distribution
of power and resources with Maori, rather than from the words
of the Treaty itself.
In common parlance, 'Treaty partnership' is ill-defined, confused,
and misleading--dangerously so in regard to the Crown's obligations
to all citizens and the potential for detriment to the majority
of New Zealanders. There is an inherent and inescapable connotation
of equality between the 'partners' that make the use of the term
inappropriate in the full context of the Treaty.
As a metaphor, 'partnership' raises impossible, and unfair, expectations.
In relation to the Treaty, 'partnership' between races, or between
the Crown and Maori, is no less than a myth--more so is the notion
of 'equal partnership'.
The Court of Appeal has spelt out on three occasions that there
is no equality in the 'partnership'. However the driving engines
of 'partnership' within and outside Government either haven't
heard or don't care to know.
There is an irreconcilable conflict between 'partnership' and
'equal citizenship' views of the Treaty. The former has no basis
in the Treaty--it is a creature of social engineers, the judiciary,
and a bureaucracy captured by a 'politically correct' Treaty orthodoxy.
The latter has direct expression in the usually preferentially
quoted Maori version of the Treaty--all New Zealanders have the
same rights and duties of citizenship.
There is a major gulf between the legislative 'preservation' purposes
of national parks and other protected areas and the variously
expressed 'conservation-for-utilisation' preferences of many iwi.
Also tribal authority over public access to and use of natural
areas contrasts markedly with existing rights of access, conveyed
equally on everyone. This conflict of objectives should be fully
debated before any consideration is given to handing ownership
or control of public lands to private interests.
The 'partnership' course is to change the essential character
of public lands and who the intended beneficiaries are, by a confused
and undemocratic application of the Treaty.