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Rt Hon Sir Douglas Graham, Minister in Charge of Treaty of Waitangi Negotiations
February 23, 1999
The NZ Maori Council has stated that it will lobby APEC countries to recognise Maori sovereignty based on the Declaration of Independence 1835. I suspect they will not be remotely interested. Not only is it nothing to do with them, but the Declaration has already been judicially considered by the Courts.
In 1993 Justice Temm stated "It's full significance is a matter of interest to historians but is no longer of any relevance to lawyers in NZ. It's effect, such as it was, was overtaken by the course of events when the Treaty of Waitangi was signed in 1840 when Governor Hobson issued his Proclamation of 21 May in that year, and when the Royal Proclamation ratifying the Treaty was published in the Gazette on 2 October 1840. From that year on the writ of English law began to run in NZ but it had not operated here before."
The Declaration was a document signed by 35 chiefs with the encouragement of well intentioned and concerned missionaries. It was recognised by London as evidence of the existence of a sovereign people which prompted London to negotiate the Treaty under which the right to pass laws was given to the British Crown. Once the Treaty had been confirmed, sovereignty, as it is commonly understood, passed from Maori to Britain. If Maori are still sovereign as some claim, then Maori have effectively terminated the Treaty and have no rights under it. They cannot have it both ways. In light of the claimed rights under the Treaty, and the settlement of Crown breaches of it, it would be surprising if Maori want to rescind it.
But what actually is the "sovereignty" being claimed by the Maori Council? Is it that Maori should have the sole right to pass laws binding on all New Zealanders or just on Maori? The first is simply fanciful and the second would depend on Maori support. Where is that support? Do all Maori wish to be subject somehow to Maori-generated laws but no others? How would it work? Would Maori living in Auckland be subject to laws that are different to those applying to the non-Maori living next door? New Zealand is quite different to Canada where Indians enjoy limited self-government on Indian reservations. Here Maori do not live on reservations - they are fully integrated.
So, not only does the Declaration of Independence of 1835 have no standing whatever, not only was "sovereignty" transferred by the Treaty, not only has Her Majesty's Government lawfully exercised that "sovereignty" for over 150 years in fact, but, from a practical view, any "Maori sovereignty" is totally inconsistent with today's world.
Neither the common law nor the Treaty permit "Maori sovereignty". The English common law could not and did not recognise a challenge to the authority of the Sovereign. The Treaty did not include any concept of "joint government" and continued reference to the Treaty as a "partnership" is misleading. Maori and the Crown were parties to the Treaty, and the Treaty created obligations on each similiar to those that partners have in a partnership. But it certainly did not create a partnership to govern the country. That function passed to the Crown. The Treaty guarantees to Maori may restrict the exercise of absolute sovereignty by the Crown but even that is debatable.
The Maori Council's assertion of Maori sovereignty has no legal basis. It would, if accepted, be a rejection of the Treaty itself. It is unlikely to be contemplated by the vast majority of New Zealanders, including many Maori. It could not be capable of being put in place anyway. In summary, it is a concept which requires a pretence that the last 200 years has not happened.
It would be much more constructive if those arguing the case devoted their time to working through the practical difficulties of blending two cultures which have much to offer each other. At the same time they should be prepared to accept the law as pronounced by the Courts. A great deal is still to be done to address the valid grievances of Maori from past breaches of the Crown's Treaty obligations. When that is done, Maori will have the chance to close the disparity gap and join the rest of us. We should all work towards a united, peaceful country rather than promote separatism and division.
PANZ commentary
This pronouncement from Sir Douglas, and the following view from the Governor-General, are long overdue. These 'official' viewpoints have regard to the simple words of the Treaty as held by the Courts, and to history, not to the many fanciful constructs the Treaty grievance industry has generated over the last decade. These have distorted and defied the actual terms of the Treaty beyond belief.
We sense frustration and exasperation on Sir Douglas' part. It seems that despite his best endeavours to settle Maori 'claims' they simply do not end. There are over 700 lodged with the Waitangi Tribunal and some claimants who have 'settled' are coming back for more. However there are more challenging political 'claims' being conducted outside of the Tribunal process. They appear to have no limits. Perhaps Sir Douglas has attempted to draw a line in the sand, however his Government is being held to ransom by 'independent' MPs who strongly subscribe to a 'sovereignty' view.
It is with some satisfaction that PANZ reads that the Treaty "certainly did not create a partnership to govern the country". We said the same back in 1993 when we challenged the notion of 'partnership' as it was being applied to the conservation estate. We have received much 'stick' for our views, which runs against the prevailing orthodoxy . However we have always believed that public affairs should be run with less heat and passion and more regard to fact and reason. We hope that Sir Douglas' reassessed views signals a more 'judicial' approach hereonin.
We do not believe that Government
has ever believed that there was a 'partnership' and related concepts
of 'co-management' etc. derived from the Treaty. It has suited
political agendas to promote such. Just about every Government
agency now actively promotes 'partnership' with Maori, some, such
as DOC, with what we suspect is far greater enthusiasm than originally
intended. This is despite the effective disenfranchising of every
other citizen. It is about time this dangerous nonsense lost official
sponsorship.
Public Access No. 11. April 1999
Government House
New Zealand
18 March 1999
The Governor-General has asked me to reply to your letter...enquiring about the use of the word partnership in his Excellency's speeches concerning the Treaty of Waitangi....
The concept of partnership has been developed by the New Zealand courts in several important cases. But it has been made clear that the term is not used to equate the treaty relationship with the conventional legal understanding of partnership. This is clear from other references to, for example, "a relationship akin to partnership", or "in the nature of a partnership". These analogies have been used to describe and give emphasis to what is the overriding Treaty principle, namely the reciprocal obligations of the Crown and Maori to act towards each other reasonably and in the utmost good faith.
For a fuller discussion, I refer you particularly to the judgements of the Court of Appeal in New Zealand Maori Council v Attorney-General, a 1987 case reported in volume 1 of the New Zealand Law reports at that year at p651.
Yours sincerely
Hugo Judd, Official Secretary
Public Access No. 11. April 1999
Dave Witherow
David Round's recent book, "Truth or Treaty?" - by far the best and most authoritative treatment of the subject yet to appear - should be read by anyone concerned by current trends in the direction of our society.
Recreational and ecological priorities, as well as the wider issues of democracy, are now under threat from hitherto unexpected sources - and the menace is escalating. This is especially so since the conclusion of the Ngai Tahu "settlement". Mr Round's account of the shameful connivance of Ministers, Departments, and the Courts, in defrauding New Zealanders of their inheritance is impossible to read without growing anger. Anger too, is the only fitting response to a secretive and dubiously-legal process that is creating a de-facto apartheid in a once-decent society, and sowing the seeds of future disillusionment and eventual racial strife. Mr Round does not attempt to gloss over past injustices or present shortcomings, but demonstrates conclusively that the cure is immeasurably worse than the disease.
The grievance industry, together with its symbiotic alter ego, the Waitangi Tribunal, have become a permanent social cancer, mutating endlessly with the "evolution" of Treaty "principles", and the process, as Mr Round makes very clear, will never end until we find the guts to shrug off spurious accusations of racism and insist on open and honest debate.
To that end this book is a magnificent contribution. Fearless, at times scornful, witty, and passionate, it ranges easily from the enduring precepts of ancient civilisations to the solemn idiocies we now endure. Its central argument - that the Treaty has outlived its usefulness - is presented with a cultural, historical, legal, and philosophical elan that inevitably counterpoints the inadequacies of what now passes for education.
A warning, This book should be left strictly alone by the politically correct, in whom it will induce apoplexy (which may explain the widespread critical silence attending its publication). For the rest, however, as well as being a pleasure to read, "Truth or Treaty?" will furnish an essential arsenal for dealing with the racist subtext that animates the Treatyists.
'Truth or Treaty? Commonsense
questions about the Treaty of Waitangi'. David Round. 1998. 219
pages.
Canterbury University Press.
Press Release New Zealand Government 14/09/99 09:13:00
Conservation Minister Nick Smith is disappointed that Public Access New Zealand is to legally challenge the return of Mt Hikurangi to Ngati Porou and the new access agreement that has been negotiated for the mountain.
"The agreement reached in 1990 on the future of Mt Hikurangi makes good sense for all New Zealanders and actually gives greater security of public access than existed prior to the agreement. Sadly there are some people who refuse to acknowledge the role of Maori in conservation and think we can go on locking them out of an involvement with their ancestral lands."
"The Government walks a fine line between some Maori radicals who wish to deny the rights of other New Zealanders, and a few radicals like Mr Barr who wish to exclude Maori. The Mt Hikurangi arrangement has been criticised by both extremes - a good indication that it is a fair deal."
Prior to the agreement people could only climb Mt Hikurangi with the consent of the previous pakeha owner. All New Zealanders now have guaranteed access under the Walkways Act to the mountain whereas previously it was at the farmer's discretion. The Walkways Act covenant is exactly the same as hundreds of others around New Zealand. It does allow the owner to close the walkway on agreed days where it would interfere with farming operations.
Mr Smith said the Government would be vigorously defending the legal action.
ENDS
The attack on Hugh Barr is nasty and completely unwarranted.
Hugh has NEVER advocated the exclusion of Maori. He has been a steadfast supporter of equality of opportunity for everyone to the outdoors for recreation and in its management. Smith's claim is completely untrue and, in best "Secrets and Lies" PR tradition*, is designed to marginalise Hugh as an extremist, so that Dr Smith's Hikurangi deal appears reasonable (appearance rather than actual content being all important). Hugh has made an extraordinary contribution to conservation and the outdoors at the national level over the last 20 or more years. This has been recognised by several national organisations. He has done more for protecting and improving public recreational opportunities than 15 Smiths could achieve in their lifetimes.
There had been encouraging signs that Dr Smith, from his energetic pursuit of his conservation portfolio, was made of better stuff, but he now appears not to be adverse to the tactics of the gutter practiced by many of his colleagues. MORE
Dr Smith's claims about the nature of restrictions on the proposed Walkway are incorrect because they are incomplete (see the full extent of closures in the PANZ news release).
His claim that "prior to the agreement people could only climb Mt Hikurangi with the consent of the previous pakeha owner" was true prior to 1990, but has also applied subsequently because of Ngati Porou's failure to honour the access provisions of the 1990 agreement.
"All New Zealanders now have guaranteed access under the Walkways Act to the mountain" is simply untrue. While under the 1990 agreement the public were supposed to enjoy "full, free, uninterrupted and unrestricted access", in perpetuity, now, because of Dr Smith rewriting the agreement on 29 April 1999, we now have closures for 50 and possibly more days per year for ill-defined reasons with no recourse open to the public against unwarranted restrictions and prohibitions. He has also created an ability to extinguish these 'rights' at any time by secret agreement between the Crown and Ngai Porou. This hardly qualifies as "guaranteed access".
Within the present conservation/summit area, public use is now to be confined to rights to "pass and repass". All general rights of recreational USE (as distinct from 'access') and enjoyment associated with a public park, such as camping, have been extinguished. Visitors may be treated as trespassers if Ngati Porou believes a person to be in breach of their rights of use. If you sit on the summit too long you may be moved along or prosecuted, in the latter case on conviction ending up with a criminal record!
Making Maori 'involvement' synonymous with gaining ownership over public lands is very dangerous and ignores all the other means of Maori "involvement" open to the Minister under the various Acts he is responsible for.
The 1990 agreement was intended to create a "practical working partnership" between the Crown and Ngati Porou, overseen by a joint management committee. There is no talk of such a committee or of 'partnership' now. Government is handing over full ownership rights to Ngati Porou constrained only by very limited provision for public benefit that can be terminated at any time. For this, Government has even agreed to pay Ngati Porou's rate bill.
The 'Gisborne Herald' on 14 September ran the contents of our press release on its front page, this being used by the NZPA for wider distribution. No comment from the Government was included.
On 'Mana News' on 15 September (Radio New Zealand) a garbled account of our legal challenge was presented ("PANZ is opposed to the deal because of the risk to access"). There was no attempt to contact PANZ for comment. Most of the item consisted of Dr Smith attacking Hugh Barr, claiming that he and PANZ "want to exclude Maori". We were painted as extremists. Smith claimed that Hugh "is very isolated".
Smith went on to say that Ngati Porou and the Crown will be "sitting side by side" in their rebuttal of our legal challenge. So much for the impartially of the Crown! He sounded flustered and angry - not being the clearest of minds to be applied to the onerous duties of the state.
'The Press' on 15 September ran an NZPA article largely running the contents of our press release with a comment at the end that "Dr Smith said he was disappointed with the legal challenge, which the Government would defend. The agreement made good sense for all New Zealanders, giving more security of public access".
*"Secrets and Lies", the anatomy of an anti-environmental PR campaign, by Nicky Hager & Bob Burton. Craig Potton Publishing, 1999 (highly recommended reading).
Further public comment on this case is now 'subjudice' as our legal papers have been filed with the High Court and also served on the Defendants - the Ministers of Conservation and Lands, Te Runanga o Ngati Porou, and the Maori Land Court. Therefore this is our last substantive public comment we can make except to advise that the case was first heard on 27th September 1999 at the High Court in Wellington, with a further proceedural hearing on 13 October.
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