An Imbalance of Powers: Maori Land Claims and an Unchecked Parliament

Aotearoa/New Zealand is not known for egregious breaches of indigenous peoples’ rights. Nonetheless, New Zealand’s legal system is ineffective at implementing international and domestic laws that protect the rights of Maori. This has been seen most starkly in the Foreshore and Seabed Act of 2004, which had the effect of extinguishing Maori aboriginal title to the foreshore and seabed areas and was passed despite almost universal Maori opposition.

The problem lies in the structure of the country’s legal system. One of the greatest impediments to the protection of human rights and indigenous peoples’ rights is the fact that the Aotearoa/New Zealand Parliament retains absolute sovereignty. Aotearoa/New Zealand is one of the only countries in the world where legislation cannot be overturned for inconsistency with human rights. This inherited colonial legal principle means that Parliament can, and does, override both domestic and international human rights and indigenous peoples’ rights, to Maori detriment.

This power of Parliament is coupled with a second unusual aspect of Aotearoa/New Zealand: It does not have a singular written constitution. The foundation of its law is instead contained in a number of sources, including, but not confined to, legislation (such as the Constitution Act of 1986 and the New Zealand Bill of Rights Act 1990, or BORA), constitutional conventions, international law, and the Treaty of Waitangi. The “constitution,” then, is fluid and can be changed easily.

Of particular relevance to Maori is the BORA, which partially incorporates the International Covenant on Civil and Political Rights, including minorities’ right to culture. The BORA, however, is explicitly secondary: Legislation inconsistent with BORA’s rights and freedoms always takes precedence (though it must be interpreted in a way consistent with BORA, if possible). Aotearoa/New Zealand courts have the explicit power to make declarations that legislation is inconsistent with the right to freedom from discrimination under the Human Rights Act 1993, but even these declarations of inconsistency are not binding on Parliament.

The Treaty of Waitangi is Aotearoa/New Zealand’s founding constitutional document. It was signed by representatives of the British Crown and some Maori in 1840, but the English and Maori texts of the treaty differ, which is a source of much controversy. The English text speaks explicitly of a cession of sovereignty to the Queen of England and the protection of Maori lands and properties. In contrast, the Maori text speaks of a transferral of, loosely translated, governor powers to the English Crown and the retention by Maori of their chieftainship over all their treasures.

Under Aotearoa/New Zealand law, the treaty is not enforceable unless it has been explicity incorporated into legislation, but there is some precedent for the argument that legislation, especially legislation that affects Maori, should be interpreted consistently with the treaty whether or not the treaty principles are incorporated into it. The treaty also has a political resonance that is difficult to explain: It is frequently the document around which Maori claims coalesce, and is referred to in Aotearoa/New Zealand policy.

The government and the Maori disagree on whether the treaty is a convention under international law. The treaty has been treated as a domestic instrument by government, but many Maori argue that because treaties are, by definition, international instruments signed by two equal and sovereign entities, it retains its international legal quality. On the basis of their view of the treaty, the Maori staged protests throughout the 1960s and 1970s against the loss of land and rangatiratanga (self-determination/chieftainship). In response to those protests, the Waitangi Tribunal—similar to a commission of inquiry—was established in 1975. It initially had the mandate to inquire only into contemporary Crown breaches of the treaty principles (not the text of the treaty itself), but was extended in 1985 to also cover historical Crown breaches.

The tribunal, consisting of up to 16 members and a chairperson, with roughly half Pakeha (of European descent) and half Maori, operates to some extent in accordance with tikanga Maori (Maori custom). It has considered numerous Maori claims since 1975, and its reports are comprehensive, especially given that it is common for claimants to present far-reaching historical evidence. However, the tribunal is under-funded, and hundreds of claims remain to be heard. Even if the tribunal’s mandate is not curtailed, it is expected to take decades for the tribunal to complete its analysis of historical claims. And, as with many other aspects of law relating to Maori, the Waitangi Tribunal findings are not automatically enforceable, but are only recommendations to the Crown. In recent years, the Crown has rejected a number of Waitangi Tribunal reports, including one that found that some tribes in the Taranaki region have a treaty interest in oil and gas in their territory. It also rejected most of the tribunal’s Foreshore and Seabed Report that was critical of the government’s policy on Maori property rights in the foreshore and seabed.

A regime has been established to address, and provide redress for, historical breaches of the treaty by the Crown. The problem is that the Crown imposes onerous conditions on the settlements; Maori claimants must accept that the settlement is fair and final and settles all of their historical claims. The Crown starts from the position that it is not possible to fully compensate claimants for their grievances. Redress instead focuses on providing recognition of the claimant group’s historical grievances, on restoring the relationship between the claimant group and the Crown, and on contributing to the claimant group’s economic development. Eighteen settlements have been reached thus far.

The situation is further exacerbated by the current political environment, which is less than sympathetic to Maori and treaty issues. The foreshore and seabed issue, sparked by a 2003 court decision, uncovered much resentment in mainstream Aotearoa/New Zealand against perceived advantages enjoyed by Maori. The leading opposition party, the National Party, capitalized on this resentment and in one speech alone, on “one law for all,” turned the party’s fortunes around, gaining considerably in the polls. Maori and treaty issues dominated the build-up to the September 2005 elections, with the National Party promising to remove treaty principles from legislation where they had been incorporated. The government has similarly illustrated some reluctance to accept critical comment on race issues.

The foreshore and seabed issue started with Aotearoa/New Zealand Court of Appeal decision in Ngati Apa v. Attorney General (Ngati Apa). This case concerned the jurisdiction of the Maori Land Court, which was established in 1865 to investigate who owned defined areas of tribal land according to tribal custom and then grant those owners freehold titles—essentially giving them the right to control access to the land and, subject to Maori Land Court confirmation, the right to sell the land. Most Maori dry-land fell out of Maori ownership by 1900, in part because of the conversion of Maori tribal land into freehold titles. In Ngati Apa the principal legal question was whether the Maori Land Court had the authority to exercise that jurisdiction in relation to the foreshore and seabed.

Applying well-established principles of native title law, the Court of Appeal held that Maori native title had survived the Crown’s assertion of sovereignty in 1840 (the date of the signing of the treaty), and that it had not been extinguished by general legislation. The Court of Appeal then determined that the Maori Land Court had jurisdiction to inquire whether defined areas of foreshore and seabed had the status of “Maori customary land.” As in the past, Maori tribes, if successful, could then apply for that land to be converted from “Maori customary land” into “Maori freehold land.” The court’s finding also meant that Maori could claim common-law native title before the High Court.

Parliament overturned the findings of the court by enacting the Foreshore and Seabed Act 2004, which, among other things, gives the Crown absolute ownership of all foreshore and seabed land that is not held in fee simple, thereby extinguishing existing Maori common law aboriginal title. The act also removes the Maori Land Court’s jurisdiction to determine foreshore and seabed Maori customary land.

The Taranaki Maori Trust Board, Te Runanga o Ngai Tahu, and the Treaty Tribes Coalition (the claimants) lobbied the United Nations Committee on the Elimination of Racial Discrimination for a decision that the Foreshore and Seabed Act discriminated against Maori. They argued that the Foreshore and Seabed Act unjustifiably treated Maori property rights differently from non-Maori property rights. The committee found that the act was discriminatory and recommended to the government that it resume a dialogue with Maori “to seek ways of lessening its discriminatory effects, including where necessary through legislative enactment.”

The Prime Minister’s response to the decision shows that New Zealand’s international legal obligations in relation to indigenous peoples are not taken seriously. The Prime Minister denigrated the committee by saying that it is “on the outer edges of the U.N. system” and implied that the claimants did not know what they were doing in seeking United Nations censure of the Foreshore and Seabed Act. She stated, “I think I have a somewhat better understanding of the U.N. system than they do.”

There are mechanisms within Aotearoa/New Zealand’s parliamentary process that function to provide incentives for Parliament to abide by its human rights obligations, but in the case of the Foreshore and Seabed Act, those mechanisms failed to have any effect. For example, the Legislation Advisory Committee Guidelines recommend that all relevant governmental departments and agencies be properly consulted before the cabinet approves a policy. It also recommends systematic public consultation, with particular emphasis on “understanding of Maori perspectives and issues” and sufficient time for public opinions to be heard. The government did not consult with Maori during its initial development of its foreshore and seabed policy. In fact, it announced its decision to assert Crown ownership over the foreshore and seabed within days of the Ngati Apa decision being handed down, and did not change course despite clear Maori objection.

Further, Parliamentary select committees usually call for written submissions on proposed legislation from the public, allowing the public time to consider a bill and respond to it. Select committees then hear oral submissions. Unfortunately, the advantages of the select committee process can be lost to politics. The select committee reviewing the foreshore and seabed bill received just fewer than 4,000 submissions, of which over 94 percent opposed the bill. However, the select committee considering the bill could not agree to recommend any amendments to it. Members from parties supporting the bill refused an extension of time to hear comments, and the committee only heard approximately 200 of the submitters who requested oral submissions, thus defeating some of the democratic benefits of the process.

These examples illustrate a fundamental constitutional problem in New Zealand—that an absolutely sovereign Parliament can ignore minorities’ rights. The only way to address that problem is to change the constitution. However, the chances of constitutional reform to provide better protection of Maori rights seem slim at the moment. The August 2005 report of a parliamentary committee set up to consider it simply recommended greater public understanding of Aoteaora/New Zealand’s constitutional arrangements. Given Aotearoa/New Zealand’s deputy prime minister’s support of Parliamentary sovereignty, it also seems unlikely that there will be governmental support for a watering down of Parliament’s supreme power in New Zealand. Unfortunately, this means it will remain difficult for Maori to legally protect their rights against majority whim into the foreseeable future.

But Maori are far from helpless. They now have their own political party, which gained 5 percent of the vote in the September 2005 elections, and which has proved to be an excellent vehicle for expressing Maori views. There are allocated Maori seats in Parliament, too (of which the Maori party won four). Protest is common, as well. In response to the government’s foreshore and seabed policies, Maori protested by marching the length of the North Island, finishing outside Parliament. That protest failed to change he policy, but it did not go unnoticed. News organizations throughout the Pacific region covered the protests. And while Maori’s political presence is still small, it is growing. Undoubtedly that trend will continue, perhaps one day even prompting a new constitution.

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