“Company” in Kopiago 615

different kinds of grasses which are springing up in his area and in asking us if these indicated that the world is ending. Apparently long-standing ideas are also subject to continuous re-working, so that revised versions of rumours turn up over time. What is of further interest is the way in which these existing symbols co-exist, and even blend, with the new theme of development through the arrival of the company. Such an arrival would indeed mean the end of one world, geographically and economically, and the start of a new one. In seeing the company as the only desired form of development the people are essentially reflecting the paucity of other development opportunities open to them. From the 1960s onwards government patrol officers regularly put in recommendations that agricultural development on a small-holder basis be made the cornerstone for local economic progress. Yet few results have emerged over time. Coffee is grown in Aluni but not tended or often picked, largely because there is no practical way to sell it. There is a severe lack of introduced vegetables which could be used for sale. There is a chronic rate of anthrax and pneumonia in the pig population which is not counteracted by DPI injections. Further, the Christian churches do not seem to have taken the place of indigenous crisis cults to provide a means of combating ill health and environmental decline by ritual intercession with the deity. The people are thus left without much recourse against adversity and little that is tangible and material to point to by way of their own development, although almost all men below the age of 35 years have been out to other places in Papua New Guinea and are able to judge how marginal their own area is by comparison.

Given all the above, I suggest, it is not surprising that “company” has become synonymous with “development” in Kopiago and has in fact become a kind o f complex symbol drawing people away from material efforts with their own ground. The (largely male) ideology that the “ground is finishing” in fact tends to produce the same result, implying that agriculture cannot be the key to the future. Instead the apocalyptic alternative is opted for. The theme of development is thus turned into a mental expectation in which the people, while still maintaining their indigenous economic activities, do not consider that these can provide a viable way to obtain money, but that this can be secured only through a kind of deus ex m ach ina : the company, which in ending their world, will, they hope, create for them a new and more wealthy version.

NOTE

This belated piece is offered as a small contribution to the “work of memory” in this volume for Ralph Bulmer. I owe to Ralph a debt of gratitude for many things: for first showing me what a sweet potato plant looks like; for feeding me with hot soup after I had lived on taro for three days on a journey over from Hagen to Kaironk in order to visit him; and for encouraging me to succeed to him in his post at the UPNG. 1991 fieldwork in Lake Kopiago is being carried out under the auspices of the National Science Foundation, the Harry Frank Guggenheim and the Wenner-Gren Foundations, and the University of Pittsburgh, USA.

REFERENCES

FRANKEL, S.J., 1986. The H uli R esponse to Illness. Cambridge University Press.SCHIEFFELIN, E.L., and R. CRITTENDEN, eds. 1991. Like P eop le You See in a D ream :. F irst C ontact in

Six Papuan Societies. Stanford University Press.

THE GENESIS AND TRANSFORMATION OF THE WAITANGI TRIBUNAL

Ranginui J. Walker University of Auckland

The Treaty of Waitangi is a document of three simple clauses which purports to convey the sovereignty of the Maori people of New Zealand to the British Crown. The conveyance of sovereignty is made explicit in the English version of article 1 of the treaty which says that the chiefs of New Zealand “cede to her Majesty the Queen of England, absolutely and without reservation all the rights and powers of sovereignty”. The Maori translation of that article of cession does not accurately accomplish the transference of sovereignty, because the indigenous word for sovereignty was replaced by a transliteration of the word governor to kawana, and the

616 Ranginui J. Walker

addition of the suffix -tanga to create the neologism of kawanatanga, for governance. When the Maori version of article 1 is translated back into English it states the chiefs “cede absolutely to the Queen of England forever the governance of their lands” (see appendix for full Maori and English texts of the treaty). Ceding power to govern is not the same as surrendering sovereignty.

Reverend Henry Williams who was responsible for translating the treaty knew the Maori word for sovereignty was mana, since he used it in the 1835 Declaration of Independence of New Zealand signed by 35 chiefs of the Northland region of the country. The use of the word kaw anatanga, therefore, obscured the meaning of the treaty. This obfuscation is evident in the understanding of the chief Nopera Panakareao of Kaitaia who after signing the treaty remarked “the shadow of the land goes to the Queen but the substance remains with us” (Adams 1977:235). There are two probable reasons for this misleading translation. Firstly, Williams knew the chiefs would not willingly sign away their mana. Secondly, Williams along with other missionaries had a vested interest in getting the treaty signed because of their land holdings which ranged from 20 acres up to 50,000 acres in extent (Grace 1959:424). They held these vast estates at the pleasure of the chiefs. Annexation by Great Britain would secure them ownership under English laws.

Article 2 of the treaty guaranteed the chiefs “full, exclusive, and undisturbed possession of their Lands and Estates, Forests Fisheries, and other properties”. The Maori version on the other hand guaranteed chiefs the tino rangatiratanga, “absolute chieftainship of their lands, their homes, and all their treasured possessions”. The guarantee of chieftainship is in effect equivalent to a guarantee of sovereignty, because a chief was not a chief without m ana w henua, sovereignty over land. Accordingly, the chiefs who signed the Treaty of Waitangi on 6 February 1840, would have understood the treaty as a guarantee of sovereignty, and not a treaty of cession. Since a governor may be defined as a satrap, one who governs on behalf of an imperial power, or one who derives his power to govern from elsewhere, then the source of that authority to govern must be defined. In New Zealand, the first Governor, Captain Hobson, had no warships or soldiers to assert his dominion over the numerous well armed tribes of the country. Therefore, he governed only through the acquiescence of the chiefs who were in effect his sovereigns. However, once the treaty was signed it was recognised by other nation states as a treaty of cession and therefore beyond their power to annex the country for themselves.

What the Treaty of Waitangi conferred in practice, was notional sovereignty, that is, a beachhead from which absolute sovereignty was progressively extended by colonial spoliation. The well tried techniques for extending the hegemony of the Crown into native districts were applied gradually and with increasing force as the colonists got the upper hand. At first sovereignty was extended by massive land buying which extinguished native title by “fair purchase”. This technique was especially effective in the sparsely populated South Island which was substantially purchased by 1858. As the land was acquired, Maori dominance was neutralised by the transmigration of surplus population from the United Kingdom. By 1858 the European population of 59,000 surpassed the Maori population, of 56,000 (Miller 1966:221), and two years later a war of conquest was undertaken in the North Island where tribes were resisting land sales. Although only three million acres were confiscated in the North Island as a consequence of the war, it effectively established the Crown’s sovereignty over the whole country. But war as a means of acquiring land from tribes which proved formidable in battle was abandoned as too costly. In 1864 when the Waikato campaign ended, Maoris in the North Island still held 16 million acres against the 10 million acres acquired by the Crown. A more subtle technique for acquiring those lands was devised by the power of a colonial government in a Parliament dominated by Europeans to make laws inimical to Maori interests. The Native Land Act 1867 established the Native Land Court which transformed tribal lands into individual ownership thereby facilitating its alienation. The Court was obliged to name only ten persons on a certificate of title to tribal land. The law treated the ten named as having the power to alienate. They were easily suborned by land sharks, storekeepers and shyster lawyers into conveying the freehold with the result that other members of the tribe were dispossessed. By the turn of the century only 5 million acres of land remained in Maori ownership of the 66 million acres they once owned in toto.

Contradiction of clause 2 of the Treaty of Waitangi by invasion and confiscation of land, was matched by statutory provisions enacted by the Governor, and later the New Zealand Parliament, when the General Assembly came into being in 1854. As the colonial administration achieved political dominance, so the laws proliferated as expressions of that dominance. Some of those laws are cited here to illustrate their range and the time frame in which they were implemented. The 1841 Land Claims Ordinance for instance declared land not actually occupied by Maoris as “wasteland” and deemed to be property of the Crown. That ordinance was a statement of intent, that the colonising power recognised only land under occupation and cultivation as being “owned” by the tribes. The native title to the so called wastelands was to be “extinguished by fair purchase” and made available to colonists. The application of this policy to the South Island was exemplified by its complete purchase, including Stewart Island for £13,500 by 1863 (Evison 1987:8). Governor Grey’s

The Genesis and Transformation of the Waitangi Tribunal 617

promise to reserve “tenths” of each block purchased was not honoured. Instead, the tenths were under Grey’s instructions to his land purchase agents reduced to ten acres per head.

The New Zealand Constitution Act 1852 formalised the negation of chieftainship, and the political dominance of the colonists, by basing the franchise on land or property held in individual ownership. Tribal land held in communal ownership was inadmissable as a qualification to vote (AJHR 1860:2-8 E No 7). This exclusion of Maoris from Parliament allowed the settler government to pass repressive legislation during the Land Wars without a dissenting voice being raised in the House. The New Zealand Settlements Act 1863 for instance provided for the confiscation of land from tribes deemed to be in rebellion. The Suppression of Rebellion Act 1863 suspended the right to habeas corpus for tribes who were defined as rebels while acting to defend their land against invasion by the Crown. In the next decade Maoris were admitted to Parliament by the Maori Representation Act 1867 but kept politically impotent by limiting them to four members when on a population basis they were entitled to twenty members in a House of seventy (Walker 1984:6). As Maori land available for European settlement dwindled, more was made accessible by the Native Land Act 1887 which allowed for the alienation of land designated as reserves. The process of stripping Maori people of their lands by statutory device continued well into the next century. The most modem example of the process was the 1967 Maori Affairs Amendment Act. This law had provision for the compulsory purchase of “uneconomic” shares in Maori land by the Maori Trustee. Furthermore, land with fewer than three owners lost its designation as Maori land. Both these provisions in the law effectively deprived many people of their tuurangaw aew ae, their standing in their tribal lands. The end consequence of this century-long process of separation of the Maori people from their land is alienation, loss of identity and marginalisation. With their land gone, 75% of Maori people migrated from their tribal areas to live in towns and cities.

Although they were politically dominated, Maori people responded creatively to the historic process of colonisation. Outside mainstream politics two authentic Maori political movements emerged as expressions of Maori nationalism (Walker 1985:255). These were the King Movement of the Tainui tribes which elected a Maori King in 1858, and kotahitanga, the unity movement for tribes outside the King Movement. After the Land Wars of the 1860’s both movements held numerous inter-tribal meetings to discuss their plight and to make representations to Parliament. They sought abolition of the Native Land Court, Maori control over their own land, return of unjustly confiscated lands, and an increase in Maori representation in Parliament. It was all to no avail, and so the chiefs decided to take the Treaty of Waitangi back to the source, the British Crown. In 1882 the chief Parore led a deputation to England to lay grievances arising out of infractions of the Treaty of Waitangi by the colonial government before the Crown and to seek a Royal Commission of inquiry into those grievances. Parore’s petition cited as infractions of the treaty the unlawful attack on Wiremu Kingi that started the Taranaki War in 1860, the invasion of Waikato in 1864, and the destruction of Parihaka village in 1881 (Rusden 1974:161). The petition was accepted by Lord Derby who promised to lay it before the Queen who would be “pleased to receive it”. But nothing more substantive came from that prevaricating reply. Two years later a similar deputation was led by King Tawhiao on behalf of the W aikato confederation of tribes. Tawhiao’s petition, in addition to citing the grievances listed in Parore’s petition, condemned the Native Land Court orders granting tribal lands to ten persons. He too called for a Royal Commission of inquiry into these matters. Lord Derby transmitted the petition back to the Governor of New Zealand who responded by blaming infractions of the treaty before 1865 on the Imperial Government. The following year, Lord Derby wrote to Tawhiao saying the British Parliament was sympathetic to the M aori’s petition and would intercede with the colonial government for consideration on their behalf (Rusden 1974:168). Despite these unsatisfactory outcomes, two further deputations went to England. In 1914 King Te Rata led one deputation seeking a Royal Commission, and again the Colonial Secretary responded by promising to refer Te Rata’s petition to the New Zealand Government. In 1924 the prophet leader Ratana led the last deputation to England. There, under instructions from the New Zealand Government, the High Commissioner Sir James Allen obstructed Ratana’s mission and prevented him from gaining an audience with the King or the Prime M inister (Henderson 1972:57).

Back in New Zealand, Ratana and his followers collected 30,128 signatures for a petition to have Parliament ratify the Treaty of Waitangi. It was tabled in the House by Eruera Tirikatene in 1932. The petition lay in the House for thirteen years before it was dealt with by the Maori Affairs Committee. The Committee recommended to Cabinet that the treaty be published and hung in the schools o f the nation as “a sacred reaffirmation” of the agreement (Henderson 1972:89).

In the meantime, the power of the Treaty to protect Maori rights had been probed constantly in the courts of the land. A selection of some of the key judgments spanning more than a century indicate the derogation of the treaty by judicial opinion. In the Crown versus Symonds (1847 NZ PCC:387), the Supreme Court ruled that the right of the Crown to land in New Zealand, as between the Crown and British subjects other than Maori, is not derived from the treaty. The only valid title to land emanated from Crown grant. The most telling blow against the Treaty of Waitangi as a guarantee of Maori rights was delivered by Justice Prendergast in the case

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of Wi Parata versus the Bishop of Wellington in 1877. Judge Prendergast declared the treaty to be a “simple nullity”. He ruled that the Crown’s right to sovereignty over New Zealand was based on discovery and priority of occupation, as the territory was inhabited “only by savages” (1877 3 NZ Jur (NS) SC 72).

In the case Tamihana Korokai versus the Solicitor General, (1912 N Z LR ) concerning native property right over the bed of Lake Rotorua, the Appeal Court ruled that it was the jurisdiction of the native Land Court to determine the owners of the Lake bed according to native custom. The case was suspended because of World War I until 1920. When the case was resumed, the Crown avoided possible embarrassment and the setting of a successful precedent based on the treaty, by settling out of court. The result was the Arawa lakes Agreement 1922 vesting the fee simple o f the lake in the Crown in exchange for an annuity of £6,000 and 40 fishing licences.

Another major blow to the mana of the treaty was delivered by Judge Myers (1912 N Z L R ) who declared that the treaty was not part of municipal law and therefore was outside the jurisdiction of the courts. Similarly Viscount Simon ruled in the Privy Council that rights conferred by the treaty could be enforced in the courts only if they had been incorporated into municipal law. These judgements effectively defined the treaty as a moral compact only and not a legal contract. But despite these adverse judgements on the treaty, Maori people continued struggling for recognition of what was promised under the treaty right up to the present time. In the Maori claim to the bed of the Wanganui River (NZLR 1962), the Appeal Court ruled that ownership of the bed of the river was vested in those who had court orders of ownership of land on the riverbank. Similarly in the Ninety Mile Beach claim (NZLR 1963), Judge North ruled that once Crown grants were made along the foreshore, the ownership of land between low water and high water was vested in the Crown.

Despite more than a century of political, statutory, and judicial derogation of the Treaty of Waitangi, New Zealand’s growing sense of nationhood sought symbolic expression through the treaty. In 1940 the centenary celebration of the signing of the treaty was marked by the opening of a carved meeting house at Waitangi. In 1954, on the occasion of the first visit of the reigning monarch Queen Elizabeth II, 6 February was marked by the celebration of the treaty in a manner that set the format for subsequent celebrations. The occasion was marked by the presence of a frigate in the Bay, a naval parade, and politicians making platitudinous speeches about the solemnity o f the treaty and its signing being the cornerstone of nationhood. Their words were endorsed by Maori leaders and sanctified by prayers from the churches. In subsequent years, with the advent of television, the Waitangi celebrations became a spectacular two-hour media event.

Reification o f the treaty as the foundation of nationhood was backed up by statutory enactments by governments of the day. The Waitangi Day Act 1960 declared 6 February a national day of thanksgiving in commemoration of the signing of the treaty. The New Zealand Day Act 1973 made Waitangi Day a national holiday. This Act also brought internal practice in line with the practice of New Zealand’s overseas embassies of observing 6 February as the country’s national day.

Statutory backing for pumped up ceremonial celebrations was a poor substitute for unresolved Maori grievances underlying the Treaty of Waitangi. This the Government soon learned much to its embarrassment. The year 1970 marked the beginning of contemporary Maori activism with the formation of Nga Tamatoa. The Waitangi celebration the following year provided them with an obvious target to launch their campaign of political activism. Tamatoa mounted a demonstration at Waitangi proclaiming it a day of mourning for the loss of 63 million acres of Maori land. Tamatoa condemned the treaty celebrations as a sham unless the treaty was ratified by Parliament to make it binding on the Crown. The Government sought guidance from the conservative leaders of the Maori Council on how to respond to the challenge by the “young warriors”. In spite of being the most conservative Maori organisation in the country, the Council presented the Government with an unequivocal submission. It cited 14 statutes in contravention of article 2 of the treaty, including the Public Works Act, Petroleum Act, Mining Act, Rating Act, and the Town and Country Planning Act (Te Maori Jnl NZMC January 1972) ( Ngata 1972:49). Maori activism and conservatism are two complementary ends of the political spectrum concerned with Maori rights under the Treaty of Waitangi. The two were essential to each other in winning middle-ground concessions from Parliament. The Government responded with the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal. The functions of the tribunal are to hear Maori grievances under the treaty, inquire into claims lodged with the tribunal, and to make recommendations to Parliament for the settlement of such claims. The tribunal was also expected to report on legislation referred to it by Parliament. The architect of the Waitangi Tribunal was the Hon Matiu Rata, Minister of Maori Affairs. His intent was to make the tribunal retrospective to 1900, but he was unable to get sufficient support from his own colleagues and so the tribunal was limited by Section 6 (c) of the Act to hearing claims after the Act came into force. The substantive grievances arising out of a century of colonial spoliation were left in the past, beyond the purview of the tribunal. Furthermore, the tribunal had no powers to make awards. The power of decision for settling grievances remained with Parliament.

Maori people were not mollified by a tribunal which was as substantial a response to their claim for justice as the affirmation of hanging the treaty in the schools of the nation. Political consciousness aroused by

The Genesis and Transformation of the Waitangi Tribunal 619

Tamatoa coalesced into a powerful Maori land rights movement which took the initiative for the Maori Land March 1975. The movement which was named Matakite marched the length of the North Island under the slogan of “not one more acre of Maori land” to be alienated. On the steps of Parliament Buildings, the marchers presented the Prime Minister with a Memorial of Right seeking entrenchment of the remnants of Maori land, repeal of laws that have power to alienate Maori land, and Maori control over the management and retention of their own lands. The land march was a spectacular media event beamed into the living rooms of the nation as it crossed the Auckland Harbour Bridge and when at the end it converged on Parliament. Pakeha New Zealanders were bemused at this public display of division and social unrest in a society which the prevailing political ideology characterised as a nation of “one people”. Maoris on the other hand were thoroughly politicised by the march as it stopped overnight en route at marae down the centre of the Island. The march was followed by the 507 day occupation of disputed Crown land at Bastion Point and subsequent occupations of land at Raglan and Awhitu.

The foment of Maori activism in the seventies took some time to focus on testing the veracity of legitimate channels such as the Waitangi Tribunal for the adjudication of their grievances. One of the land marchers, Joseph Hawke, precipitated the first hearing of the tribunal on 7 June 1977. The case, which involved a breach of the fishing regulations, was heard in the ball-room of the Intercontinental Hotel. Hawke claimed a traditional right to take shellfish under article 2 of the Treaty of Waitangi. He argued that the method of taking, namely by the use of SCUBA gear, though prohibited by law, was irrelevant. The tribunal concluded the case was not well founded and declined to make a recommendation to Parliament. The second case brought by the late Mr T.E. Kirkwood objecting to the proposed siting of Auckland Thermal Number One power station at Waiau Pa on the Manukau Harbour was heard at the same venue. Kirkwood objected to the taking of hundreds of hectares of mudflats for cooling ponds as a derogation o f the traditional fisheries of the Tainui tribes who regard themselves as the owners and custodians of the harbour. The tribunal was relieved of having to make a decision when the New Zealand Electricity Department decided not to proceed with the project.

Neither o f the first two cases tested the mettle of the tribunal because it did not have to forward recommendations to Parliament showing existing law conflicting with the treaty. However, the hearings of the fledgling tribunal were not entirely devoid of profit. Mr D.V. Williams of Auckland University Law School sent a critical memorandum of the first sitting of the tribunal to the Minister of Maori Affairs. Williams argued that the chairman’s adoption of court procedures and its adversary style o f conflict resolution was not obligatory. The tribunal was at liberty to adopt informal hearings in a manner that was more culturally appropriate for Maori claimants. Williams also criticised the venue of the Intercontinental Hotel as culturally alienating to Maori people and therefore inappropriate. He recommended that future sittings should be held on marae and marae protocol of mihi (welcome), whaikorero (speech in reply) and karakia adopted.

Williams also criticised the Registrar and two members of the tribunal for their mispronunciation of Waitangi. These criticisms had considerable bearing on how the tribunal subsequently conducted its business.

The inconclusive nature of the first two hearings of the tribunal gave credence to Maori suspicion that the tribunal as a means of settling their long-standing grievances was irrelevant. Protest activity continued unabated, culminating at the end of the decade in the resignation of the Hon Matiu Rata from Parliament. Rata launched the Mana Motuhake Maori party in 1980 to capitalise on Maori disaffection in a bid to wrest the four Maori seats from the Labour party’s forty year hold on them. However, one man, Aila Taylor of the Atiawa tribes did not give up on the Waitangi Tribunal. In 1981 he lodged a claim that the proposed Motunui synthetic fuel plant outfall to discharge effluent into the sea would pollute traditional fishing grounds of the Taranaki people.

Taylor had opposed the outfall at planning hearings of the local authority and the Planning Tribunal, but to no avail. There was too much inertia in vested interests, “fast track” legislation, and government commitment to “think big” projects aimed at providing employment and securing the country’s energy needs for tribal concerns to prevail. In keeping with the recommendations of the Williams memorandum, the Atiawa claim was heard in 1982 on Manukorihi Marae at W aitara where proceedings were commenced under Maori protocol. But a more fundamental change had taken place within the tribunal with the appointment of Judge Edward Durie as chairman. The tribunal now consisted o f two Maori and one Pakeha, a composition conducive to setting witnesses at ease in the presentation of their evidence. Tribal elders cited their traditional fishery reefs by name and their locations within sub-tribal boundaries. The hearing elicited values pertaining to kaim oana, seafood, as the the essential expression of hospitality in feeding guests on the marae, and the customary usages in the conservation of kaim oana while it was being harvested. Even the most private and delicate customs pertaining to prohibition of women from gathering shellfish during menstruation was disclosed to the tribunal by the kuia, the female elders of Atiawa. Witnesses made it quite clear to the tribunal that even “purified” effluent discharged into waters where kaim oana was harvested for human consumption was spiritually unacceptable. In March 1983, the tribunal reported to Parliament the outcome of its

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deliberations. The tribunal found that the traditional fishing grounds of the Atiawa would be prejudicially affected by the proposed Motunui ocean outfall. While this finding is self evident, given the facts adduced by witnesses before the tribunal, its main finding marked a watershed in the recognition of the Treaty of Waitangi, and the rights it guaranteed. The tribunal ruled:

That the Treaty of Waitangi obliges the Crown to protect Maori people in the use of their fishing groundsand to protect them from the consequences of the settlement and development of the land (WaitangiTribunal Report March 1983:5).

Furthermore, the tribunal ruled that the Treaty of Waitangi obliged the Crown to give priority to the Maori interest in its fishing grounds, but a similar priority could not be given to departments of state. These findings vindicated Maori faith in the treaty as being something more than a “simple nullity”, that it was indeed a solemn compact which meant what it said. But the significance of the ruling was lost on the Prime Minister Mr Muldoon who responded by overriding the tribunal (NZ H era ld 30:3:1983). The Atiawa immediately called a hui (assembly) at Manukorihi Marae. The meeting advocated resorting to activist tactics including disbandment of Maori councils, boycotting the Royal Tour, calling on the Maori Members of Parliament to resign, and appealing to the Federation of Labour to take industrial action. A subsequent hui at Parihaka ruled out militant action in favour of negotiation through “proper channels” ( Auckland S tar 18:4:83). Three days later an Atiawa deputation met with the Prime Minister. During these negotiations it became clear that public sympathy had swung in favour of Atiawa. The findings of the tribunal had been widely reported in the media. The militancy and depth of feeling over the issue displayed at the Manukorihi meeting had been televised to the nation. Local authorities, and environmental groups, were in sympathy with Atiawa. Publicity given to the work of the tribunal on the effects of the Motunui outfall raised the level of public consciousness so that a patently just cause could not be denied. An editorial in the N ew Z ea lan d H era ld (30:3:83) on the Prime M inister’s rebuff to the tribunal commented that the Government had made itself appear inflexible thereby failing a key test on its concern for the moral basis by which two races share one country. In response to the shift in public opinion and the moral force of the treaty, the Prime M inister modified his position. He introduced the Synthetic Fuels Plant (Water Right) Bill to use the Waitara outfall as an interim measure, as had been recommended by the tribunal. This recognition of the moral force of the treaty gave the tribunal a power that was not at all envisaged by its architects. They thought they had depowered the tribunal by making it non­retrospective to 1840. They had not anticipated the capability of the treaty to move events outside the century in which it was framed.

The success of the Atiawa claim revived Maori interest in the tribunal. Over the next two years the tribunal heard claims on the Manukau Harbour, the Kaituna River, Waiheke Island, Orakei and the Maori language before it was dissolved at the end of 1985. The Manukau claim brought by Mrs Nganeko Minhinnick on behalf of the Huakina Development Trust was the most comprehensive claim to come before the tribunal. It encompassed a number of issues including degradation of the harbour by pollution from freezing works, New Zealand Steel, run-off from farms, effluent from the Mangere Sewage Treatment Plant, discharge of Water from the Waikato River into the harbour by New Zealand Steel, confiscation of tribal lands, and mining of iron sands at Maioro, an ancient urupaa (sacred burial ground). Although many of the issues raised in evidence were outside the time-frame and jurisdiction of the tribunal, the hearings served to place them on record. The tribunal laid bare for public scrutiny the history of injustice and colonial spoliation visited on the Tainui tribes around the perimeter of the Manukau. Despite being unable to remedy many of the matters brought before it, the hearing enabled the tribunal to lay down a number of fundamental principles in its report. The tribunal argued it was bound by the Treaty of Waitangi Act to provide for the practical application of the treaty which can no longer be treated as a “simple nullity”. Furthermore, the tribunal was bound by the Act to have regard for both the Maori and English texts of the treaty. Although there are discrepancies between the Maori and English texts, the tribunal followed M cNair’s ruling in The Law of Treaties that the two texts should help one to interpret the other. The tribunal also followed precedents in the United States Supreme Court that treaties should be construed in the sense that they would be naturally understood by the indigenous people. By taking this direction, the tribunal was not only mediating between the Maori people and the state, but it was also assuming the role of correcting the imbalance of power that had hitherto allowed the state to define unilaterally how it should respond to Maori claims under the treaty.

While the Motunui decision of the Waitangi Tribunal marked the turning point in how the state responded to Maori claims under the treaty, Maori protest activity against the Waitangi celebrations continued. In 1984 the two major tribal political coalitions founded in the last century, Kotahitanga and the King Movement, combined in the hikoi, a peaceful march of 3,000 people to stop the celebrations. Although police stopped the hikoi from reaching its objective, it achieved a major political breakthrough when the Governor-General Sir David Beattie agreed to meet a deputation from the hikoi against the advice of the Prime Miniister. That the

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meeting did not occur was due to disagreement over the size of the deputation, and police and intervention. The hi koi was followed in September by a national assembly of tribes at Tuurangawaewae Marae, seat of the Maori Queen, to discuss the Treaty of Waitangi. The assembly passed a resolution that the Waitangi Tribunal be given retrospective powers to 1840 to hear grievances and that adequate resources be made available to the tribunal to ensure that grievances are fully researched. This resolution was taken on board immediately by the Labour Government which had come to power in a July snap election. Before the House rose at the end of the year, the government introduced a bill to amend the Treaty of Waitangi Act 1975. That the Government moved with such alacrity was due to its desire to keep faith with its Maori voters, and to prevent them deserting the fold to support the Mana Motuhake Party that was threatening its hold on the four Maori seats.

Considering its potential to uncover the past, the Treaty of Waitangi Amendment Act 1985 was passed in December, a year after the bill was introduced, without a ripple of public comment. Section 3 (1) (a) amended section 6 of the principal Act to extend the jurisdiction of the tribunal to hear claims retrospective to 1840. The legislation also increased the membership of the tribunal to seven. In the light of the Manukau claim, the significance of the tribunal becoming retrospective means that the serious issues raised concerning unjust confiscation of Waikato lands in the last century must now be addressed by the Crown. Within months, huge land claims against the Crown were lodged by the Ngai Tahu, Tainui and Atiawa tribes. As the claims increased rapidly to over 120, it became clear to the Government that at a clearance rate of four or five cases a year, it would take the tribunal thirty years to clear the backlog. Accordingly the tribunal’s two research officers were supplemented in 1987 by the appointment of a senior research officer and four researchers. A year later when the number of claims had risen to 150, the tribunal was strengthened again by an increase of its membership from seven to sixteen (NZ H era ld 23: 3: 88). The tribunal was also given greater flexibility by empowerment of the chairman to appoint alternative chairmen and by allowing small claims to be heard by a minimum of three members, with up to a maximum of seven for other cases.

The transformation of the tribunal into a more effective institution for dealing with Maori grievances was matched by an increase in its status vis-a-vis the judiciary of the High Court. In the injunction brought by the the Maori Council against the transfer of Crown land subject to potential claims before the tribunal to State Owned Enterprises, Justice Cooke ruled that nothing in the State Owned Enterprises Act permitted the Crown to act inconsistently with the principles of the Treaty of Waitangi (C A 54/87 Page 27). Since the principles alluded to are not defined by Parliament or the treaty itself, the tribunal carries out a basic function of defining those principles by extrapolating them from the cases it hears and incorporating them in its reports. In the Motunui case, the tribunal unequivocally laid down the principle that the Crown had an obligation under the treaty to protect the Maori interest in its fisheries from the consequences of development on the land. In the Manukau Report, the tribunal laid down a number of principles. The tribunal stated it was bound by both the English and Maori versions of the treaty, despite discrepancies between them. Furthermore, both versions should be construed in the sense that they would be naturally understood by the Maori. The tribunal also argued that m ana is equivalent to sovereignty. Since m ana and rangatira tanga are inseparable, under the guarantee of rangatiratanga “the Maori retained his mana without denying that of the Queen” (p. 91). In this case the tribunal also defined taon ga, treasured possession, in its broadest sense to include the Manukau harbour or even a river. This definition of taonga had a bearing on the Te Reo Maori claim in which the Maori language was also defined as a taonga that the Government was obliged to protect. In the Kaituna Report the tribunal cited section 6 of its own Act “whereby any Bill, proposed regulation, order in Council or policy must be measured against the principles of the treaty”. The tribunal then expatiated on that proposition by stating

far from being a simple nullity the Treaty of Waitangi has become a document of importance approaching the status of a constitutional instrument. . . and not something to be taken lightly by those responsible for introducing new legislation or enforcing legislation that already exists (p. 26).

That opinion was endorsed by Justice Cooke’s conclusion in the High Court in 1987 that the Treaty of Waitangi overrode everything else in the State Owned Enterprises Act.

The mana of the Waitangi Tribunal, and its esteem in the High Court, was manifested in the case brought by the Maori Council and the Muriwhenua Incorporation seeking an injunction to stop the implementation of the Government’s Individual Transferable Quota fisheries management regime. The Court sought the views of the tribunal which gave an interim opinion on the Muriwhenua fisheries claim which it had just heard. The tribunal ruled that waters encompassed by the tribal boundaries of the Muriwhenua people were owned, it was property in the same way that land was. Therefore it was not the right of the Crown to license the traditional user but rather that the Crown had to acquire the right of commercial user by the general public. On the basis of this opinion and Section 88 (2) of the Fisheries Act which states “nothing in this Act shall affect any Maori fishing rights”, Justice Greig made an immediate order on 30 September 1987 suspending the Quota Management System. The Government responded by establishing a Working Party of four government and

622 Ranginui J. Walker

four Maori representatives to report on how the Maori interest in fisheries could be implemented. The result is the Maori Fisheries Bill tabled in Parliament on 22 September 1988. Should the basic provisions established in this bill become law, then the Maori right to 50% of New Zealand’s fisheries will be implemented at the rate of 2. 5% per annum over a twenty-year period.

Although this formula was acceptable to Maori leaders, they objected to sections 17 and 21 of the bill which put a twenty-year moratorium on Maoris taking fishing claims before the courts and the Waitangi Tribunal respectively. As a fall-back position from which to negotiate removal of the objectionable clauses in the bill, 38 tribes filed their claim back with the High Court. The Government responded by dropping the bill, offering 10% of the fishery over a four year period and leaving the High Court to settle the issue of ownership over the remaining 90% of the fisheries.

In conclusion, it is clear that the Waitangi Tribunal was originally a symbolic gesture towards the recognition of Maori grievances arising out of the historic process of European expansionism and colonisation. But Maori activism and the advent of a Labour Government in 1984 with a more liberal philosophy than its predecessors’, led to the transformation of the tribunal into an effective instrument for hearing Maori claims against the Crown. The hearings of the tribunal are in effect a socio-drama in uncovering the past, and is enacted before a national audience per medium of newspapers, radio and television. The consequence of the drama is the elevation of the Treaty of Waitangi in the national consciousness. This in turn brings the moral force of the treaty to bear on the Government to honour its obligations, for the integrity of the Crown itself is at stake. In respect of their treaty rights, the Maori, like indigenous people the world over, occupy what Justice Tom Berger describes as “the moral high ground” (Berger 1985: 180). From that position, per medium of the Waitangi Tribunal the Maori people are today reclaiming what is rightfully theirs.

REFERENCES

ADAMS, Peter, 1977. Fatal Necessity: British Intervention in New Zealand, 1830-1847. Auckland, Auckland University Press.

BERGER, Thomas R., 1985. Village Journey: the Report o f the Alaska Native Review Commission. New York, Hill & Wang.

FREIRE, Paolo, 1972. Pedagogy of the Oppressed. Translated by M. B. Ramos. Harmondsworth, Penguin Books. COLENSO, William, 1971. The.. . Signing of the Treaty of Waitangi. . . Christchurch, Capper Press.COOKE, P., 1987. Judgement in the Court of Appeal between G.S. Latimer and the Attorney General. C.A. 54/87. EVISON, H., 1987. Ngai Tahu Land Rights. Christchurch, Ngai Tahu Maori Trust Board.GRESSON, P., 1962. Judgement In Re the Bed of the Wanganui River [1962] N.Z.L.R. 600.HENDERSON, J. McLeod, 1963. Ratana, the Origins and the Story of the Movement. Polynesian Society Memoir

No.36. Wellington, A.H. & A.W. Reed.JONES, Pei Te Hurinui, 1959. King Potatau. Wairarapa, Polynesian Society.MARTIN, CJ., 1847. Judgement in the Crown v. Symonds [1847] N.Z.P.C.C. 387.MILLER, Harold, 1966. Race Conflict in New Zealand, 1814-1865. Auckland, Blackwood & Janet Paul.NGATA, H., 1972. The Treaty of Waitangi and Land. Te M aori, Journal of the New Zealand Maori Council,

Wellington. Also in The Treaty of Waitangi its Origins and Significance. Wellington, Victoria University Extension.

NORTH, J., 1963. Judgement In Re The Ninety Mile Beach [1963] N.Z.L.R. 46.PRENDERGAST, C., 1877. Judgement in Wi Parata v. the Bishop of Wellington [1877] 3 N.Z. Jur (N.S.) S.C. 72 REPORT, 1980. Report o f the Royal Commission of Inquiry into the Maori Land Court. Wellington, Government

Printer.------------ , 1984. Report: He Korero Mo Waitangi. Edited by A. Blank, M. Henare, and H. Williams. Auckland, Te

Runanga o Waitangi.REPORTS, Waitangi Tribunal, Justice Department, Wellington:

1977. The Claim of J.Hawke and Others.1978. The Claim by T.E. Kirkwood on behalf of the Waikato sub tribes.1983. The Claim by Aila Taylor on behalf of Te Atiawa in Relation to Fishing Grounds in the Waitara District.1984. The Claim by Sir Charles Bennett and Others in Respect of a Proposed Nutrient Pipeline to the Kaituna

River.1985. The Claim by Nganeko Minhinnick and te Puaha Ki Manuka.1986. The Claim by Huirangi Waikerepuru and Nga Kaiwhakapumau i te Reo.

ROSS, R., 1972. The Treaty on the Ground, in The Treaty o f Waitangi - its Origins and Significance. Wellington, Victoria University Extension.

RUSDEN, G.W., 1974. Aureretanga: Groans of the Maoris. Wellington, Hakaprint.SINCLAIR, Keith, 1960. A History of New Zealand. Harmondsworth, Penguin Books. (4th, revised edition London,

Allen Lane, 1980.)SIMON Viscount L.C., 1941. Judgement in Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941]

A.C.308.

The Genesis and Transformation o f the Waitangi Tribunal 623

SORRENSON M.P.K., 1956. Land Purchase Methods and Their Effects on the Maori Population. Journal of the Polynesian Society , 65/3.

STOUT, C.J., 1912. Judgement in Tamihana Korokai v. the Solicitor General [1912] 32 N.Z.L.R. 321.WALKER, R.J., 1984. Nga Tumanako. Report of the Maori Representation Conference. Auckland, Continuing

Education Centre, University of Auckland.------------, 1985. The Maori People: Their Political Development, in Hyam Gold (ed.), New Zealand Politics in

Perspective. Auckland, Longman Paul, pp.251-65.WILLIAMS, D.V., 1977. Memorandum to the Minister of Maori Affairs Concerning the Waitangi Tribunal.

University of Auckland.

APPENDIX

(Facsimiles o f the Treaty of Waitangi, Alexander Turnbull Library, 1976, Wellington: Appendix III: The Treaty itself)

“1840, 6 February: As finally adopted and signed by upwards of five hundred of the principal chiefs (512), the Treaty of Waitangi appeared in the following form, which we here insert for the sake of easy reference, as the English document only appears once in these pages:—

English Version HER MAJESTY VICTORIA, Queen of the United Kingdom of Great Britain and Ireland, regarding with Her Royal Favor the Native Chiefs and Tribes of New Zealand, and anxious to protect their just Rights and Property, and to secure to them the enjoyment of Peace and Good Order, has deemed it necessary, in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand, and the rapid extension of Emigration both from Europe and Australia which is still in progress, to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands. Her Majesty, therefore, being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the Native population and to Her subjects, has been graciously pleased to empower and authorize me, WILLIAM HOBSON, a Captain in Her Majesty’s Royal Navy, Consul, and Lieutenant-Governor of such parts of New Zealand as may be, or hereafter shall be, ceded to Her Majesty, to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the First 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 to possess, over their repective Territories as the sole Sovereigns thereof.

Maori Version KO WIKITORIA, te Kuini o Ingarani, i tana mahara atawai ki nga Rangatira me Nga Hapu o Nu Tirani, i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga, me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te ata noho hoki, kua wakaaro ia he mea tika kia tukua mai tetahi Rangatira hei kai wakarite ki nga tangata maori o Nu Tirani. Kia wakaaetia e nga Rangatira maori te Kawanatanga o te Kuini, ki nga wahi katoa o te wenua nei me nga motu. Na te mea hoki he tokomaha ke nga tangata o tona iwi kua noho ki tenei wenua, a e haere mai nei.Na, ko te Kuini e hiahia ana kia wakaritea te Kawanatanga, kia kaua ai nga kino e puta mai ki te tangata maori ki te pakeha e noho ture kore ana.Na, kua pai te Kuini kia tukua a hau, a WIREMU HOPITONA, he Kapitana i te Roiara Nawa, hei Kawana mo nga wahi katoa o Nu Tirani, e tukua aianei amua atu ki te Kuini; e mea atu ana ia ki nga Rangatira o te Wakaminenga o nga Hapu o Nu Tirani, me era Rangatira atu, enei ture ka korerotia nei.

Ko te TuatahiKo nga Rangatira o te Wakaminenga, me nga Rangatira katoa hoki, kihai i uru ki taua Wakaminenga, ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu te Kawanatanga katoa o o ratou wenua.

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Article the Second 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 Pre-emption over such lands as the proprietors thereof may be disposed to alientate, at such prices as may be agreed upon between the repocctive Proprietors and persons appointed by Her Majesty to treat with them on that behalf.

Article the Third 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.

W. HOBSON Lieutenant-Governor

Ko te TuaruaKo te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira, ki nga Hapu, ki nga tangata katoa o Nu Tirani, te tino Rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminenga, me nga Rangatira katoa atu, ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te wenua, ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Ko te Tuatoru Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o to Kuini. Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani. Ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.

(Signed) WILLIAM HOBSON Consul and Lieutenant-Governor.

Man and a Half, edited by Andrew Pawley, is acollection of 81 original papers honouring the distinguished anthropologist, Ralph Bulmer. It contains substantial sections on• ethnobiology, semantics and taxonomy• social and symbolic systems• linguistic and textual analysis• prehistory and oral history• traditional societies and the modem world as well as memoirs on Bulmer’s life and work.

The contributors, chiefly from the USA, England, France, Australia, New Zealand and Papua New Guinea, include many of the leading contemporary scholars in ethnobiology and Pacific anthropology.

Ralph Bulmer (1928-1988) was a scholar o f wide-ranging accomplishments. In Brent Berlin’s words, his studies o f the Kalam people “set the standards. . . o f modem ethnobiology as a discipline” . He also made important contributions to the study of the social structure, prehistory and languages of New Guinea Highlands peoples and was an innovator in ethnographic method. After doing a first degree in social anthropology and archaeology at Cambridge, Bulmer took his PhD in social anthropology at the Australian National University. Most o f his teaching career was spent at the University of Auckland, though he was, from 1968 to 1973, the first Professor of Anthropology and Sociology at the University o f Papua New Guinea.

Bulmer carried out extended field research in three societies.In 1950-51, while at Cambridge, he spent six months studying reindeer husbandry among the Saame of northern Norway and Sweden. Between 1955 and 1959 he spent a year and a half in the western Highlands o f Papua New Guinea analysing leadership and social structure among the Kyaka Enga of the Baiyer River. But it was among the newly contacted Kalam of the Kaironk Valley, Papua New Guinea, that Bulmer found the perfect place to marry his lifelong passion for natural history with his training in ethnography and his fascination with symbolic systems. He spent two and a half years among the Kalam between 1960 and 1985 and recruited more than a dozen collaborators from various disciplines to study society, language, natural history and archaeology in the Kaironk Valley. In the 1970s he began an experiment in ethnographic writing with his Kalam field assistant, Ian Saem Majnep, a skilled hunter and naturalist. They first co-authored Birds o f M y Kalam Country, then Majnep became the primary author o f a book about wild mammals, Animals the Ancestors Hunted, with text in Kalam and English. At the time of Bulmer’s death they were collaborating on a third book, Kalam Plant Lore.