Skip to content

Separatism in New Zealand: Part Two; Cultural and traditional harvest of natural and exotic resources

May 11, 2022

Towards the end of more than forty years in front line journalism I became increasingly aware of the development of an informal duality of citizenship in New Zealand, the acceptance of that duality by community leaders and the long-term potential for dis-harmony and, in 1991, I wrote a rather long essay on my observations. This is the second part of that essay 

Cultural and traditional harvest of natural and exotic resources and Treaty of Waitangi issues.

There is a hard core of official advisors and lobbyists who have generated the myth that Maori have some distinctive or separate association with native flora and fauna not understood or shared by non-Maori native New Zealanders and that there was an archaic affinity between people and the natural world similar to modern day conservation. Archaeology however tells a different story and, like all hunter gatherer societies, Polynesians had a huge negative impact on New Zealand’s indigenous ecology as did the Europeans who followed them less than 1000 years later. 

The myth is well explained in the current campaign for a “Pest Free New Zealand,” which overlooks the fact that humans, beginning with the arrival of Polynesians and followed quite separately by Pakeha, were the first ‘introduced species’ to get here triggering massive environmental degradation and decline in New Zealand’s indigenous biodiversity which continues today. 

The myth has its roots in the indigenous people’s rights movement of North America and the mis-application of Article Two of the Treaty of Waitangi which was designed to protect tribal property rights including the right of tribes to own land and the right to harvest natural resources on those lands as they always had. It was never intended to give one group of native New Zealanders privileged access to natural resources over another.

It has also been suggested in the report to Te Puni Kokori, (He Puapua -2019) that Article Two of the Treaty of Waitangi included rights of co-governance of the country between Maori and the Crown including a dominant role in resource management for the nation.

That is a very liberal interpretation of an obscure, poorly written and ambiguous document. There is however nothing in the text of the treaty, in Maori or English, which suggests it was ever intended that there would an ongoing permanent partnership between Maori and the Crown in the sovereign governance of the country at all levels. 

Maori were promised the right to manage their own land and societal affairs as they had always done but that is far from taking a dominant role in all other matters governing the entire nation. The principles of British and New Zealand law suggest that those rights are shared by all native New Zealanders without distinction and within the constraints and boundaries of law.

Another unintentional consequence of Article Two of the Treaty of Waitangi is the uncertainty over the ownership of natural resources. By including the guarantees of continued ownership of almost everything in Article Two of the treaty, the Crown excluded itself, probably unintentionally, from the automatic presumption of underlying ownership of land and natural resources. 

Put simply the Crown does not own anything for which it cannot show legal and proper acquisition. This was clearly demonstrated when the New Zealand Government introduced the Individual Transferable Quota System for commercial fisheries in 1986. The Waitangi Tribunal found that the Crown could not generate a property right for un-caught fish in the sea as the Crown did not own the resource. In effect the fisheries in their entirety were, in 1840, owned wholly by Maori and the Crown had not properly acquired the resource in the intervening years. A negotiated settlement took a full decade to accomplish. 

The same principle was also applied in the Ngai Tahu Claims Settlement Act (1998) when all natural pounamu (New Zealand jade) became the property of the South Island tribe. The same general rule will no doubt be applied to other natural and mineral resources in the future. This will be particularly interesting if and when claims for fossil fuel resources are ever made. 

Once again, the Crown did not acquire the significant New Zealand coal fields from Maori but assumed ownership by statute in 1937 without negotiation or recognition of the previous owners. While this action may fit with Articles One and Three of the Treaty of Waitangi, which give the Crown the right to make laws for the good of all New Zealanders, it can also be seen as a breach of Article Two which guarantees Maori tribal property rights.  

When it comes to the so-called affinity with natural resources however other rules come in to play. The reality is that understanding of and association with native or exotic wildlife and natural surroundings has nothing whatever to do with ethnicity. This knowledge and understanding is entirely based on life experience. 

If it is the Treaty of Waitangi, rather than subsequent statutes, which protects the cultural non-commercial harvest and access rights of Maori, that same instrument also protects the cultural harvest and access rights of Pakeha to those same resources as both peoples are natives of New Zealand. 

If on the other hand we are forced to accept that Maori have some exclusive association with native resources not enjoyed or understood by other native New Zealanders and that it is only these species which have any certainty of legal protection, we are faced with a serious issue. Notwithstanding the need to protect the comparatively defenceless native New Zealand flora and fauna from exotic introductions, many exotic species now form the basis of the nation’s agricultural economy and recreational hunting and fishing resources. 

Celebrating the differences

There are many stories, some real, some myth, about the activities of early education authorities who tried, and failed, to turn young Maori into adult Pakeha. They were not the first to make the attempt and New Zealand is not the only country where such attempts were made. Australia made similar attempts with tragic results as recently as the 1960s. 

Early Christian missionaries made immense inroads into traditional Maori philosophies and lifestyle, unravelling the very fabric of Maori society and attempting to mend the holes with their own archaic and largely failed religious beliefs. While educationalists have turned away from such arrogance, and in the opinion of some, have swung the pendulum too far by introducing an artificial Maori cultural component into schools, many churches still follow the steps of their forebears, often with terrible results. 

Even more bizarre is the recent adoption by a growing number of central and local government bodies that there must be a Maori cultural component included in almost every event or official gathering. A few badly pronounced phrases, learned by rote with minimal understanding and the repetition of Christian missionary prayers of the 1850s poorly translated into Maori pass as Maori culture. This sycophantic attempt at appeasement can be both demeaning to Maori and offensive to Pakeha, although few will admit it. 

These policies failed in the past because Pakeha and Maori New Zealanders, for all their commonality, are separate people in their own right and should be left alone to be as separate as they choose. They most certainly should not be coerced or persuaded to live like each other or mimic each other. They live in peaceful harmony and happy co-existence, intermingling at their own comfort level and separating where and when they choose to. This more recent development will eventually attract open derision and contempt. They can only ever be equals in all things regardless of attempts to legislate otherwise. 

What is The Treaty of Waitangi? 

The Treaty of Waitangi was drawn up at the invitation of some Maori tribal leaders in the far north so that British authorities could control British subjects living there. The alternative was for Maori to control them which would have been terminal for offenders and also terminal to the valuable access to European agricultural technology as well literacy. 

They had also been encouraged Anglican missionaries to oppose Roman Catholic missionaries from France and wanted them kept out. Maori at that time were in fact not much interested in Christianity, in spite of latter claims by missionaries, but saw learning, and repeating scriptures by rote as an easy way to ensure access to nails, shovels, axes ploughs, horses, pigs, wheat potatoes, pumpkins and muskets. 

After more than a year of discussion they asked for British law to be applied here and accepted that they would also be bound by it and would apply it to their own people in their own way. Initially about 35 leaders signed the treaty which was then taken around the country for the next year to get more signatures. 

More important was the Kohimarama Conference twenty years later of July 10, 1860.  At that conference of about 200 tribal leaders from throughout the North Island the Governor, Thomas Gore Browne, asked them to consider a number of serious matters which included the Taranaki Land War, which had erupted in March that year, and Maori King, set up two years earlier in 1858. The first Maori King, Potatau Te Whero Whero had died a month earlier to be succeeded by his son Tawhiao. 

The governor then left the conference leaving the leaders to their deliberations. It was a pivotal moment for New Zealand as there were suggestions in Britain that the colony should be abandoned.

After long and detailed debate over several days, recorded by bilingual journalists and published in the Maori Newspaper The Messenger (Te Karere issues 13 to 18), the tribal leaders declined to condemn the tribes of Taranaki in their fight against the British or vote against the Maori King. They did however vote unanimously for the continuation of British presence and law in New Zealand. Most interestingly they saw the Treaty of Waitangi as an exclusively Nga Puhi matter and of little interest to them. They simply wanted one law for all and the freedom to manage their own affairs according to that law.      

The treaty is in three parts with the second part having two clauses. The first part cedes sovereignty from Maori to Britain but there was in fact no sovereignty to cede to anyone. 

In spite of a failed attempt by missionaries to set up the United Tribes of New Zealand with a written constitution, there was no umbrella pan Maori authority and still isn’t. The constitution was signed by about 20 far north leaders but the thousands of other, fiercely independent tribes, knew nothing of it. 

The word sovereignty has no equivalent in Maori so kawanatanga was invented by missionaries which translates loosely as governance; a very different concept. Tinorangatiratanga translates as both chieftainship and individual self-determination which applies, within the constraints of law, to everyone today.      

The second part promises, in the first clause, that Maori can keep all that they own and will not be forced to part unwillingly with anything. The clause did not define in any detail exactly what Maori owned and it can therefore be said to cover anything and everything and known and unknown in 1840. Today that has come to mean things such as radio frequencies as well as water. In agreeing to this, British agents, probably inadvertently, denied the Crown the automatic underlying ownership of land and natural resources as in England and throughout the rest of the British Empire.

The second part of clause two prohibits the sale of land to anyone other than the Crown. Maori had no concept of exclusive individual land ownership in the European sense so this was to stop land sharking which was already well underway in and around Wellington and Nelson by the Wakefield family’s New Zealand Land Company. The Crown would buy land at a fair price and on-sell to approved settlers as the British Government initially had no intention of owning land here or even encouraging or allowing large scale British settlement. That was undertaken by private enterprise with tragic results for Maori.

The third part made everyone in New Zealand a British subject with all the rights, obligations and protection that goes with it. That included everyone including non-Maori who had, by 1840, been in New Zealand for fifty years or more and who were accepted by Maori as equals. 

Much has been written and said about the 1840 Treaty of Waitangi and its influence on New Zealand today. Without going over too much more of that issue it can reasonably be assumed that the treaty opened the way for the establishment of British law and the Westminster parliamentary style of executive rule in New Zealand. From that system has evolved the New Zealand legal system and statutes, which govern the country today; a system that, in theory, is supposed to treat all people equally and reflect the cornerstones of British law. 

There is a body of Maori opinion that says the treaty was only ever intended to bring the rule of British law to New Zealand to control British subjects living here, leaving Maori to take care of their own people under their own rules. Although that argument may have some genuine validity, that all people in New Zealand became British subjects, and subject therefore to British law, whether they wanted to be or not, understood it or even cared one way or the other, is without question.

The treaty signed at Waitangi in 1840 was not unique or even an original document. It was almost identical to a standard format treaty used throughout the British colonies and was almost identical to the British-Sherbo agreement of 1825, one of several negotiated with tribal rulers of the Gambia around that time. (Dr M.P.K. Sorrenson; Ko Te Whenua Te Utu/ Land is the Price. Auckland University Press 2014, Pg 42.)

Similar treaties were also agreed between Britain and several North American native peoples prior the American War of Independence (1775-1783) which the new nation of The United States of America adopted. The results of separatism, or self-determination, to use the most recent interpretation, were native Americans living in poverty on reservations and native South Africans subjected to apartheid.  

In New Zealand, also without question, was the systematic, deliberate and cynical dishonesty with which Maori people were denied their rights as British subjects by officials and authorities for most of the century and half which followed. Unimaginably huge tracts of land were simply stolen under a range of official but illegal and morally wrong instruments including armed invasion. As various governments attempted to address these very real issues over the years a number of flawed concepts have been generated. 

The first was that the treaty was a mere nullity which was of course simply incorrect. The most recent, and incidentally one of the few without any basis in logic or history are the so-called Principles of the Treaty of Waitangi. 

They were established in 1989 by the Government, under Labour Prime Minister David Lange, in collaboration with the Waitangi Tribunal and the New Zealand Maori Council.

They were:

  1. The government has the right to govern and to make laws
  2. Iwi have the right to organise as iwi and, under the law, to control the resources they own.
  3. All New Zealanders are equal under the law
  4. Both the government and the Iwi are obliged to accord each other reasonablecooperation on major issues of common concern.
  5. The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

These principles have never been written into law. Although more than 40 of our laws now require them be observed, no government has attempted to define them in any detail or give clear instructions on how that observation will be applied in practical terms.

While they are an honest attempt to interpret the treaty for modern day New Zealand, unless well understood or correctly applied they will introduce a whole range of new concepts, rights and obligations never envisaged or intended by the original parties to the treaty. There is a very real danger also that attempts to apply these unwritten principles without honest context and analysis will create a whole new set of injustices for non-Maori New Zealanders. 

In reality two of the most important principles of the Treaty of Waitangi are, number two, the right to own property either collectively or privately free from interference of the State, with exceptions in national emergency or war and, number three, the right for all people to be treated equally under the law. Those principles were established by the Magna Carter in 1215, encapsulated in British law in 1582, and simply repeated in Article Two of the Treaty of Waitangi of 1840; they should apply to all New Zealanders equally.  

The right of Maori to own land and resources is in fact a common law right, established in New Zealand by the Treaty of Waitangi when British law was introduced, as well as a “treaty right” which was simply the vehicle by which British law was established. A right they have been denied many times. Many traditions were outlawed and many unjust restrictions were placed on a free-living people. Some of these are still applied to Maori tribal land and activities today. It is important for lawmakers to understand that Pakeha native New Zealanders have not inherited culpability for those atrocities. 

Next week Treaty Partnership