By Jay Robinson,2014-11-28 06:06
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     1Mark Barrett

    Policy Advisor, Ministry of Justice 2Kim Connolly-Stone

    Senior Policy Analyst

    Te Puni Kokiri (Ministry of Māori Development)

New Zealand Government policy toward the Māori population in the 1990s has been

    characterised by an emphasis on the settlement of historic grievances, largely concerning traditional property rights. The registration of claims and the settlement of claims have consumed much time and expense on the part of both Government and Māori. This

    process has, however, been essentially historical in its focus and there are many issues ' around the health of Māori-Crown and Māori-non-Māori relationships in the present and

    in the future that have yet to be addressed. In particular, the Crown's obligations toward Māori in the social policy area are emerging as an area of debate. This is also an area in which the Crown's stance on the Treaty, we will argue, lacks consistency. For this reason it is likely to be an area in which much debate will be focused in the next few years.

    This paper discusses the Treaty of Waitangi as it has been interpreted and applied in key areas of New Zealand Government social policy, in particular, the health sector and iwi social services. By no means is it intended to be a complete history .of the New Zealand Government's social policies as they have impacted on Māori. Neither does the paper

    attempt a detailed history of Treaty jurisprudence in New Zealand (the reader is referred to McHugh (1991) for this). However, some basic knowledge of this history is necessary to understanding the application of the Treaty to social policy, and for this reason, and for the benefit of international readers, the paper begins with a general introduction to Treaty issues. The paper proceeds with an overview of the Treaty's legal status and its appearance in relevant pieces of legislation. This is followed by a discussion of the major Treaty debates as they relate to social policy.

    Much of the source material for this paper, particularly regarding the various perspectives on Treaty issues, comes from spoken communication or other unpublished sources, and we have not referenced this material. (All published sources are referenced, of course). The views we express are entirely our own. Furthermore, we make no claim that these views are generally representative of the views of other Māori, or of Pākehā with an interest in these issues.


     1 Mark has a background in Social Work and Social Policy. He is of Tainui descent. 2 Kim has a background in Law.

Representatives of the British Crown and New Zealand's Māori chiefs (rangatira) signed 3the Treaty of Waitangi in 1840. Two versions of the Treaty exist, an English version and

    a Māori version. Most rangatira signed the Māori version. The two versions of the Treaty are not exact translations of each other and this has been the source of considerable ambiguity and conflict in Treaty interpretation. The Treaty contains a preamble and three clauses or articles. The paragraphs below discusses the articles' contents.

     4Article 1 in the English version states:

    The Chiefs of the Confederation of the United Tribes of New Zealand and the

    separate and independent Chiefs who have not become members of the

    Confederation cede to Her Majesty the Queen of England absolutely and without

    reservation all the rights and powers of Sovereignty which the said Confederation or

    Individual Chiefs respectively exercise or possess, or may be supposed to exercise

    or possess over their respective Territories as the sale Sovereigns thereof.

    While in the English version Māori cede "sovereignty" to the Crown, the Māori version uses the term kawanatanga, which translates as "governance". It is an issue of some debate as to what exactly rangatira intended when they ceded kawanatanga. One point of view is that rangatira agreed to delegate authority for administering the country to the Crown - the important point being that this delegated authority was ultimately subject to the overarching authority of rangatira. (Orthodox commentators reject this constraint on kawanatanga.) Another perspective is that rangatira agreed to the Crown having authority over Europeans living in New Zealand, while chiefly authority over Māori was

    unaffected. While there is debate about the exact intent of rangatira when they signed the Treaty, very few Māori commentators believe that rangatira intended to cede absolute authority over Māori to the Crown.

Article 2 in the English version states:

    Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes

    of New Zealand and to the respective families and individuals thereof the full

    exclusive and undisturbed possession of their Lands and Estates Forests Fisheries

    and other properties which they may collectively or individually possess so long as it

    is their wish and desire to retain the same in their possession; but the Chiefs of the

    United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of

    Preemption over such lands as the proprietors thereof may be disposed to alienate

    at such prices as may be agreed upon between the respective Proprietors and

    persons appointed by Her Majesty to treat with them in that behalf.

    Article 2 has been interpreted by orthodox Western jurists as a re-statement of indigenous common-law rights (indigenous common-law rights are discussed further below). Their emphasis in interpreting this clause of the Treaty has therefore been on protection of Māori property rights. This approach to Article 2 has contributed to a recent raft of Crown/Māori Treaty settlements around property issues. As with Article 1, however, the Māori version of Article 2 conveys a somewhat different meaning to the English version.

     3 The reader is referred to Orange (1987) for a detailed account of the signing of the Treaty. 4 The full text of the Māori version of the Treaty is given in the appendix.

    In place of the expression "undisturbed possession of their Lands and Estates Forests Fisheries and other properties", the Māori version of the Treaty uses the expression "te tino rangatiratanga o ratou wenua o ratou kainga me o ratou taonga katoa". This can be loosely translated as "chiefly authority over lands, villages and all things precious". The term tino rangatiratanga, which can be translated as "chiefly authority", is a term that to Māori more closely corresponds to the term" sovereignty" in Article 1 of the English

    version. Furthermore, in using the term taonga, or "things highly prized", the Treaty goes beyond Western concepts of property, since the term can be applied to children, language or culture and other things that would not normally be considered property by Europeans.

From the Crown perspective, the Treaty has been perceived as Māori submission to

    British sovereignty (Article 1) in exchange for British Citizenship (Article 3) with traditional property rights to be protected (Article 2). A contemporary Māori perspective is that the Treaty conceded to the Crown a right to administer the country in the interests of all inhabitants, Māori and Pākehā, but that an absolute guarantee of Māori control over all matters Māori applied. Thus, debate revolves around the extent to which the Crown's powers under Article 1 are limited by the guarantees in Article 2. The Waitangi Tribunal has held that the Crown's right to govern must be balanced against the obligation to protect rangatiratanga.

Article 3 of the English version states:

    In consideration thereof Her Majesty the Queen of England extends to the Natives of

    New Zealand Her royal protection and imparts to them all the Rights and Privileges

    of British Subjects.

    Interpretation of Article 3 and its Application to Social Policy

    There has been comparatively little debate about the meaning of Article 3 of the Treaty. This may be because Māori and the Crown are largely agreed about what the Article means, or that priority has been given to the settlement of grievances based on the breach of Article 2 rights. The debate about the meaning of Article 3 has centred around what are rights of citizenship, and whether Article 3 guarantees to Māori equal opportunities or


     5There is some argument as to whether citizenship guarantees social rights. In fact social

    rights were not expressed in New Zealand law until the late nineteenth and early twentieth centuries with the rise of social theory and the development of the welfare state and human rights norms. However, modem theories of citizenship, international human rights instruments, codification of certain social rights legislation and the general

     5 The term social rights in this context refers to those rights in the international Covenant on Economic, Social and Cultural Rights (1976) and includes education, physical and mental health, social security, standard of living, employment, and protection of children and family. Social rights are contrasted to civil and political rights, such as the right to life, liberty and security of the person; protection against discrimination; equality before the law and democracy. Civil and political rights, which arose much earlier than social rights, are generally considered to be inalienable and are more widely recognised internationally.

    acceptance by Western citizens of the right to welfare, leads to the conclusion that there is a link between social rights and citizenship rights (Walghan Partners 1996).

    Many argue that the rights and privileges of citizenship that are guaranteed to Māori under the Treaty are limited to the civil and political rights that existed in 1840. This view is discounted by the prevalent view amongst commentators that the Treaty is a living document and its guarantees are not limited to the circumstances that existed at the time it was signed.

    If one accepts that citizenship rights include social rights, the debate turns to the meaning of the phrase "the same rights of citizenship", and the meaning of "equality". One view is that Article 3 concerns the actual enjoyment of social benefits, and guarantees "equality of outcome". Others argue that Article 3 guarantees equality of opportunity, or equality under the law. Under this view it is claimed that equal rights of citizenship are achieved where the law makes no distinctions between Māori and non-Māori. The debate between

    equality of opportunity and outcome does not get us particularly far as equality in reality can never be achieved - it is just an objective or ideal to work towards.

    Another approach is that is that Article 3 guaranteed more than the right to be treated equally under the law. Such a right is of little use unless there is equitable access to all of society's goods, including health, education and all the necessities of a good standard of living. Disparities between Māori and non-Māori in income, health status, educational

    attainment, labour force participation and a host of other variables, indicate that individual Māori have not enjoyed the reciprocal benefits guaranteed to all citizens under the Treaty. Neither signatory to the Treaty envisaged Māori becoming an underclass in

    their own lands, but had in mind the opportunity for positive development and strengthening of communities. Therefore, to close the gap, policies should be developed which target assistance to Māori.

    Targeted assistance may require that Māori perspectives and preferences be recognised, and that policies, approaches and methods be employed which target Māori specifically in order to reduce disparities. It is generally accepted by the social policy sector that one policy for all does not deliver equitable access to everyone. Under this analysis, Article 3 requires the Crown to recognise where disparities exist between Māori and non-Māori,

    and to attempt to address them to the best of its current capability. This view takes into account the Crown's other responsibilities as the Government, fiscal restraints and the responsibility that Māori must take for their own health and welfare.

    With the exception of language, the Crown's responsibility under the Treaty to ensure Māori well-being has not been examined by the Courts. While a number of Treaty claims concern social policy issues, for example the Labour Relations Act, adoption of children, and education, Te Whanau o Waipareira is the first Waitangi Tribunal Report to consider

    Social Policy and the Treaty of Waitangi (the report is discussed below).


    Under international law , treaties, warfare and diplomacy are acts carried out by executive governments of sovereign peoples and relate to interactions with other sovereign peoples. As such, they are outside the domain of domestic (called municipal) law. Municipal law is concerned with the internal governance of nation states, an area over which international law has no jurisdiction except where nation states voluntarily adhere to international law. If the Treaty is a treaty of cession, then it is an international treaty. This makes it relevant to New Zealand municipal law only to the extent that municipal law formally recognises it.

    The Treaty has never been formally incorporated in New Zealand's Constitution, so its status as a constitutional document is at best ambiguous. It is, however, generally regarded as New Zealand's founding document. The Treaty is only legally enforceable domestically to the extent to which it has been incorporated in various pieces of legislation. The legislation in which the Treaty has been incorporated is surveyed below.

Before considering the Treaty in legislation it is perhaps important to note that Māori also

    derive rights from common law. Common law is that body of law that has grown gradually over centuries through successive court decisions. Commonwealth countries that adopted the British legal system have inherited this body of law. The common law contains a range of guarantees of aboriginal rights, including rights over land and traditional food sources. The common law has not been widely used in New Zealand as a basis for litigation of traditional Māori rights. It has, however, been important in

    Australia and Canada.

    The Treaty of Waitangi Act (1975)

    The Treaty of Waitangi Act (1975) was the first legislation in modern times to recognise the Treaty and arguably remains the most important. The Act, which was passed by the third Labour Government, established the Waitangi Tribunal. While the Act does not incorporate the Treaty into municipal law, it gives the Tribunal power to investigate 6whether legislation or actions of the Executive contravene the principles of the Treaty.

    The most notable exercise of the Tribunal's functions to date has been the investigation of historical land claims. Government is not bound by the Tribunal's recommendations - nevertheless, Tribunal findings carry considerable weight. The Act initially restricted the Tribunal's powers to the investigation of Treaty breaches dating from 1975. However, the Act was amended in 1985, under the fourth Labour Government, to extend the Tribunal's powers to the investigation of breaches dating from 1840.

    The State Owned Enterprises Act (1986)

    Perhaps the second most important piece of legislation from a Treaty perspective is the State Owned Enterprises Act (1986) which states, "Nothing in this Act shall permit the

     6 The principles of the Treaty of Waitangi are considered below.

    Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi." The New Zealand Māori Council successfully brought action against the 7Crown in 1987 under this Act. Its objective was to prevent the transfer to State Owned

    Enterprises of Crown-owned land subject to Treaty claims.

    This particular case has been a landmark in Treaty jurisprudence. The Court of Appeal confirmed previous judgments that the Treaty has no status in law except where it has been incorporated in statute. However, in interpreting the Treaty the Court declared that the Treaty must be treated as a living document capable of adapting to new circumstances and that the principles underlying the Treaty were of greater importance than its actual words. The practice of referring to the principles resolves the difficulties of interpretation resulting from the Māori and English language versions.

    Treaty Principles.

    The concept of Treaty principles first appeared in the Treaty of Waitangi Act 1975, but the Act did not define the principles. While the Lands case was the first opportunity for the Court of Appeal to consider the principles, the Waitangi Tribunal had been making findings on the principles since 1978. The principles are constantly evolving, and should be viewed in the context of the issue at hand. What follows is list of the most basic Treaty principles developed by the courts and the Waitangi Tribunal. The overriding principle which guides the Crown's relationship with Māori is the notion of reciprocity - the

    exchange of the right to govern for the right of Māori to retain rangatiratanga and control over their lands, possessions, affairs and things important to them. From this overarching principle several other principles are derived, including:

     The Treaty established a partnership, and the Treaty partners are under a duty to act

    reasonably and in good faith with one another. The needs of both cultures must be

    respected, and compromises may be needed in some cases;

     The Treaty guaranteed to Māori, full authority, status and prestige with regard to

    their possessions and interests. The Treaty guaranteed not only that possessions

    would be protected, but also the "mana to control them in accordance with their own 8customs and having regard to their own cultural preferences";

     The Crown must make informed decisions by having regard to the Treaty when

    exercising its discretions and powers. While good faith does not always require

    consultation, it is an obvious way of demonstrating its existence; and The Crown has a duty to take positive action to protect the rights of Māori, including

    rangatiratanga over taonga.

    The Māori Language Act

In 1984 a claim in respect of Te Reo Māori (Māori Language) was lodged with the

    Tribunal, it argued for official recognition of Te Reo, and for Government action to

     7 New Zealand Māori Council v Attomey-General [1987] 1 NZLR641 (the Lands case). 8 Motonui-Waitara Report, p51.

    protect and promote it. The Tribunal ruled that Te Reo is a taonga protected by the Treaty under Article 2 and that the Crown had breached its obligation to actively protect it. In reaching this conclusion the Tribunal referred to the Māori version of the Treaty and determined that the phrase "O ratou taonga katoa" covers both tangible and intangible things and could be best translated as "all their valued customs and possessions". The Tribunal described the language as an essential part of Māori culture and therefore it "must be regarded as a valued possession".

    Government's response to the Tribunal's ruling was to introduce the Māori Language Act (1987) which recognises Māori as an official language and establishes Te Taura Whiri I

    Te Reo Māori (the Māori Language Commission). Importantly for the purposes of this

    paper, the Act provides statutory recognition that te reo Māori is a taonga protected by 9Article This challenges the conventional approach that Article 2 is restricted to tangible property rights. Subsequent Tribunal claims concerning Te Reo (e.g., the Radio Frequencies Claim), and Government responses to them, have rested on this recognition. The Courts have also considered this issue and held, for instance in the Broadcasting 10Assets case, that the protection of Māori language (an essential element of Māori culture)

    is a fundamental Treaty commitment on the part of the Crown.

    Rights over other intangible things have not been acknowledged in the same way as they have for language, and have consequently not been litigated in the same manner. Successful cases in other areas of social policy are required to establish a body of social policy Treaty jurisprudence.


    The Education Act (1989)

The Education Act (1989) requires school boards to take "all reasonable steps…to

    discover and consider the views and concerns of Māori communities living in the

    geographical area" served by the school. School charters must recognise the importance 11of Māori culture, and instruction must be provided in Te Reo and tikanga for those

    pupils whose parents request it. The Act also allows the Minister to designate any school a kura kaupapa Māori where parents request it. A kura kaupapa Māori is a school that observes Māori cultural practices and as far as possible teaches all of its curriculum in Māori.

While the Education Act provides important recognition of Māori needs and aspirations

    in the education sector it does not specifically mention the Treaty. It thereby avoids establishing Treaty-based rights in the education sector that could serve as a basis for litigation.

     9 See preamble of Act. 10 New Zealand Māori Council v Attorney-General [1992] NZLR 557. 11 Custom.

    The Children, Young Persons and their Families Act (1989)

    The Children, Young Persons and their Families Act also lacks reference to the Treaty. However, the Act does make reference to the special needs of Māori. This occurs in section 7(c), which instructs the Director-General of Social Welfare to "have particular regard for the values, culture, and beliefs of the Māori people." More important for Māori are the provisions of the Act that relate to Iwi Social Services (section 396). These are

    discussed below.

    The Health and Disability Services Act (1993)

    The Health and Disability Services Act contains two references to Māori interests, these occur in sections 2 and 8. Section 2 provides that the good employer provisions of the Act shall apply to the employment needs of Māori. Section 8 relates to the objectives of

    the Crown which, it is stated, include "the special needs of Māori and other particular communities or people." There are no other references to Māori needs, and the Treaty is not mentioned anywhere in the Act.


    A total of 41 statutes enacted since 1975 incorporate references to the Treaty, and many others refer to Māori interests. Amongst these, only the Māori Language Act, the Education Act, the Children, Young Persons and their Families Act and the Health and Disability Services Act could be characterised as social policy legislation. A range of other Acts allows for equal opportunities or cultural differences, but we do not propose to discuss these here.

    It is generally thought that the inclusion of Treaty clauses in social policy legislation poses too great a risk to the Crown. It is for this reason that legislation such as the Children and Young Persons Act contain "Māori interest" clauses. It is thought that Treaty clauses would open up Ministerial, administrative or clinical decisions for review against Treaty principles, thereby creating an element of uncertainty in the application of legislation. It is argued that litigation of decisions made under social policy legislation, against Treaty principles, would encourage the courts to make decisions about what is reasonable for the Crown to do in order to meet its Treaty obligations, and usurp the role of the legislature.


    Government has long understood its social policy responsibilities toward Māori in terms of Article 3. By guaranteeing citizenship rights to Māori, Article 3 prohibits discrimination and arguably requires Government to be pro-active in reducing social and economic disparities between Māori and non-Māori (the debate on the interpretation of

    Article 3 is considered above). This is not to say that Māori have always supported Government's social policies, but debates have not revolved around matters of Treaty

    interpretation. If Article 3 has been mentioned it is in connection with the vigour with which Government has applied it.

    The key Treaty debates in the social policy arena increasingly relate to the interpretation and application of Article 2. Demands by Māori in the social policy arena are for greater

    self-determination or tino rangatiratanga. These demands are based on Article 2. To date Government has, not accepted the applicability of Article 2 to social policy and Māori demands for self-determination have been rejected. This section explores the application of Article 2 to social policy in greater detail by focusing on two areas of social policy: the health sector and the Department of Social Welfare's Iwi Social Services policy.

    Health Sector

    An important distinction needs to be made between Māori health needs and Māori health rights. To date the dominant discourse in Māori health has been about how to address the special health needs of Māori. The application of Article 2 to health would change the discourse from one of needs, to one of Māori rights to health, thereby creating a legal obligation and fiscal risk for Government.

In reporting on the Te Reo Claim, the Waitangi Tribunal ruled that the phrase o ra-tou

    taonga katoa, all things highly prized, (from Article 2) covers both tangible and intangible -things. It could be argued that health and well-being fit this definition. In fact, few would debate that health is precious. However, the more important health sector issue relating to Article 2, is the extent of Māori rights to self-determination in healthcare

    provision. It is one thing to acknowledge that health is taonga within the meaning of Article 2 - it is an entirely different thing to acknowledge that Māori have the right to manage and control their own healthcare provision.

Government's key statement on the Treaty of Waitangi, as it applies to health, is Whaia

    Te Ora Mo Te Iwi 1992. In it Government states:

    Any discussion about Māori issues in the health sector must begin with an

    acknowledgement of the relationship between the Crown, this legislation and the

    Treaty of Waitangi. ...The Government regards the Treaty of Waitangi as the

    founding document of New Zealand, and intends to address land and health issues

    through consultation and discussion. (p.22)

However, Whaia Te Ora Mo Te Iwi goes on to say:

    The claim that the protection of the health of Māori has (through Article 2) a special

    claim on New Zealanders as a whole, over and above the responsibility of the Crown

    to secure the health of all citizens is, however, not one the Government accepts.


    This is a clear example of Government using Treaty-based language and concepts while denying that it has specific Treaty obligations. This leads to inconsistency between Government's official statements on the Treaty and the application of Treaty principles at an operational level.

    Developments have been occurring at an operational level, however, that have enhanced Māori control over health services. In particular, two of the Regional Health Authorities developed partnership arrangements with Māori that enabled Māori communities to have considerable input into health service purchasing decisions. These partnership arrangements are continuing under the new Health Funding Authority. The growth of coordinated care is also increasing opportunities for Māori to manage their own service purchasing.

    These developments raise the interesting phenomenon of Government's purchasing and delivery agencies taking a more open approach to Treaty issues than the central policy- making agencies. The centre has allowed greater liberalism in Treaty interpretation as long as specific obligations for Government are not created.

    Iwi Social Services

    The discussion in this section explores the Department of Social Welfare's Iwi Social Services policy from a Treaty perspective. It does not comment more generally on the effectiveness of Iwi Social Services as social policy.

    Iwi Social services are provided for by section 396 of the Children, Young Persons and Their Families Act 1989, which states:

    The Director-General may, from time to time, on application made to the ; Director-

    General, approve any incorporated body (being a body established , by an iwi) as an

    Iwi Social Service for the purposes of this Act.


    The Director-General may grant an approval under this section subject to such conditions as the Director-General thinks fit.

    The powers of Iwi Social Services are specified in section 402 of the' Act, which states:

    Where, pursuant to any provision of this Act, a child or young person is placed in the

    care or custody or under the guardianship of an Iwi Social Service or a Cultural

    Social Service, the Convenor of that Social Service shall have and may exercise or

    carry out, on behalf of the Social Service, all rights, powers, and duties in respect of

    the child or young person that are conferred or imposed on the Social Service by

    virtue of this Act.

    In other words, the Director-General of Social Welfare may delegate various powers in relation to the care and supervision of children and young persons to Iwi Social Services under the Act. The Act stipulates that Iwi Social Services must be established by Iwi Authorities, ie., they must have tribal support. The Act neither prescribes nor proscribes the specific powers to be delegated to Iwi Social Services. Neither does the Act articulate the key principles underlying the Iwi Social Services policy.

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