Dialogue: Trampling on Maori land rights at heart of claims

The Treaty of Waitangi was envisaged by the signatories as the basis of a partnership, not a font of racist separatism, writes DAVID ARMSTRONG*.

On another Waitangi Day, attended with the usual controversy, it is appropriate to remind ourselves what Governor Hobson and the chiefs sought to achieve in February 1840.

Several speeches and articles, notably by the Act MP Stephen Franks, have asserted that the Treaty of Waitangi did no more than import British law and sovereignty and that Article II, which guaranteed Maori property rights, was entirely consistent with this notion.

Mr Franks went on to bemoan recent "myth-making" which was antithetical to what the signatories envisaged in 1840. He said these "myths" imported into the treaty concepts of partnership and shared sovereignty which had resulted in a form of racist separatism akin to apartheid.

Having thus reduced the treaty to a mere guarantee of Maori property rights, Mr Franks even doubted that this was valid today, noting that "property rights classically recognise limitation periods and adverse possession, both of which mean effective occupancy can defeat ancient rights".

What was envisaged in February 1840? For Maori the events at Waitangi represented the first phase of a sustained attempt to engage with modernity and its undoubted benefits.

A series of further localised arrangements with separate iwi and hapu during the next two decades then gave shape and substance to the broad outlines of the treaty. These arrangements involved the transfer of large tracts of land to the Crown for settlement, but they were much more than mere land sales as we would understand the term today.

Maori expected that they would share land and resources with the settlers, and in return they would use their remaining land as a springboard to participate in the new European economy and gain access to sought-after technology, education, health and other services.

For this reason they initially parted with large tracts of land for virtually no cash payment. They were neither duped nor careless of the future.

Rather, the real reward, in their view, would come later in the form of long-term economic and other advantages which they would garner through their participation in the economy - in other words, through an ongoing and mutually advantageous social and economic partnership with the Crown and settlers. In this way the welfare of succeeding generations would be protected and maintained.

When Governor Hobson told Maori at Waitangi that "we are now one people" ("he iwi tahi tatou"), it did not mean that Maori would abandon overnight 1000 years of culture and custom and become brown Englishmen. Rather, it pointed to the promise of this partnership.

During the 1840s and 1850s the chiefs often used a marriage metaphor when speaking of their relationship with the Crown - embodied in the person of Queen Victoria - since this best defined and described the partnership they were attempting to create in a way well understood by both cultures.

For example, a chief of the Far North, Nopera Panakareao, told the Governor, when criticising a local European magistrate, that despite his misgivings about certain aspects of Crown administration, the "marriage ring" (representing his relationship with the Queen) had not "fallen from his finger".

In another notable case, Hokianga Maori were told that their land was "as a fat ox" which was useless to them unless they were supplied with the tools to butcher and cook it. This the Crown would make available in exchange for a share of the carcass.

Maori expectations of long-term advantage and partnership were actively encouraged by Crown agents, who were invariably directed to emphasise longer-term collateral benefits, rather than nominal cash payments, when negotiating for land.

For example, Donald McLean, the most determined and successful Crown land purchase agent, told the people of Ahuriri (Hawkes Bay) in 1852 that although the sum he proposed to pay for a part of their extensive and rich pastoral lands was nominal, a hospital would soon be built and a town would spring up, providing a market for their produce. The idea of partnership was implicit and explicit in virtually every case.

Mr Franks is quite correct in identifying property rights as a central issue. However, the rights that were guaranteed (in Article II of the treaty) were those of the Maori iwi and hapu. They were not individual rights because all land and resources were in 1840 controlled collectively by the tribes. That is why the Crown was at first compelled to negotiate the purchase of land from tribes after 1840, not individuals.

But by the mid-1850s many iwi and hapu, becoming fearful of their prospects, sought a halt to large-scale land sales. Their preference in most cases was to lease, not sell. Nevertheless the Crown continued to press for the outright sale of land, which, in turn, resulted in the rise of the King movement and war in Taranaki and elsewhere.

In 1865 the Crown instituted a more expedient method of acquiring territory. It abandoned its pre-emptive (sole purchase) rights and set up the Native Land Court. This judicial body was overtly designed to smash tribal control of land by awarding titles to individuals. Thus the main bulwark against land sales - tribal or collective control - would be removed.

By the turn of the 20th century, despite large-scale Maori opposition, the fabric of tribal society had, indeed, been largely destroyed. Maori had become virtually landless and were economically and socially marginalised.

While on the face of it the Land Court system might seem less onerous than confiscation at the point of a bayonet, the effect on Maori society and culture was no less severe. Hence, even if we accept Mr Franks' argument that the treaty guaranteed only land rights as they existed in 1840, a vast breach has clearly occurred.

But more fundamentally, the events which occurred after 1865 not only overturned property guarantees contained in the treaty but also sundered the partnership entered into by both sides in 1840 and thereafter. The promise of partnership cannot be fulfilled when one side is rendered landless and reduced to penury.

This trampling on collective property rights and a breakdown of the partnership envisaged in 1840 is the central aspect of most claims before the Waitangi Tribunal. It is well not to lose sight of this.

Nor is it wise to forget that the vast majority of claimants seek no more than the re-establishment of this partnership and the economic independence it promised. No one should be threatened by that.

It is perhaps fortunate for all New Zealanders that the marriage ring is still worn by so many Maori. If we are to build the New Zealand envisaged by the treaty signatories, a generous acknowledgment of how and why the partnership foundered, and the lamentable consequences for Maori, is a necessary first step. This process is not assisted by repeated reference to the treaty as a font of racist separatism.

* David Armstrong, a Wellington historian, has been involved in researching treaty claims for the Crown and claimants since 1989.