Protesters on Waitangi Day 1990, 150 years after the signing of Te Tiriti o Waitangi. Despite progress in the decades since, and “the revolutionary shifts that have occurred and continue to evolve”, writes Claudia Orange, “the 1840 agreement is yet to be fully shaped”. (Photo: MANUEL CENETA/AFP via Getty Images)

Last week, we ran an extract from the updated new edition of The Story of a Treaty/He Kōrero Tiriti, by Dame Claudia Orange, which explored the reasons for Māori leaders signing Te Tiriti. In this second extract from the book, Dame Claudia looks at where we are today, and the continuing efforts to fully realise the promise of the 1840 agreement, as we move towards 2040.

HAPŪ, IWI AND SETTLEMENTS

For iwi involved in the Treaty settlement process, there are huge ongoing challenges.

The process is one that requires iwi to fit the rules. This is a tough call for iwi, as a critic in 2008 noted: “It is the lack of a sense of partnership in the Treaty settlement process that raises the most serious concern.”

Ten years later, law lecturer Carwyn Jones made the same comment, and in May 2019 he observed that the objectives of the two parties in settlements are different: “Māori are looking for ways to achieve justice, re-establish a relationship and build a platform for the community, whereas the Crown seems more focused on efficiency and meeting timeframes.”

Some claimant negotiators say they made the most of the process available, despite its flaws.

But some iwi have not concluded their negotiations for settlement, for a variety of reasons; these include objections to the process itself and what they see as its unjust basis.

POST-SETTLEMENT GOVERNANCE ENTITIES

While issues to be worked through during negotiations are substantial, iwi face new challenges in the post-settlement period. These are the responsibility of the Post Settlement Governance Entities (PSGEs) — small entities responsible for settlement redress, iwi governance, development and wellbeing. There is no legislative frameworkfor PSGEs, and they vary; most have arrangements under the Trustee Act 1956.

Iwi that have settled provide potential models for PSGEs, but each iwi is different and must work out its path in respect of its relationship with the Crown. When problems are struck, some iwi are likely to initiate court proceedings. Iwi can also seek “remedies hearings” with the Waitangi Tribunal; these can break negotiation gridlocks, or may seek adjustments to process.

The Tribunal, therefore, remains a significant avenue for iwi in seeking solutions, although it has refrained from using its jurisdiction to make binding recommendations on certain matters so far.

THE MĀORI ECONOMY

One of the Crown’s aims in redress is to give an iwi an economic lift. The redress total will probably end up at around $3 billion (roughly equivalent to Auckland District Health Board’s annual budget in 2020).

The value of settlements to iwi in dollar terms is significant, but it cannot be seen as generous. Redress quantum (the dollar value of cash and assets transferred to claimants in settlement), and the rules for assessing this, have varied little over 30 years.

Early settlements by some iwi have allowed them to demonstrate the benefits of redress and of post-settlement development. But the financial resources contributed by Māori in the settlement process have been considerable.

Iwi have seen the lack of adequate resourcing as hampering their negotiations and a matter that governments could have dealt with more effectively.

Iwi that have settled will increasingly play an essential part in regional development and be more significant in the nation’s power structures. Their situation varies considerably in terms of how they have dealt with redress. Those who settled early have benefited through investments; some smaller iwi and those not in main centres may have less opportunity for growing the value of their redress.

The Māori economy as a whole is substantial. Its value been variously estimated as between $6 billion and $50 billion, or more, and it will continue to expand. Treaty settlements have contributed to the development of Māori communities, with some flow-on effects to regions; in many parts of the country, iwi-based initiatives sit alongside existing Māori commerce and assets built up outside of settlements.

New Zealand’s future depends on Māori economic capacity working alongside the major changes now required of Crown and non-Crown agencies. Moreover, settlements are not for the advantage of this generation only; they provide inter-generational opportunities across a range of areas, although these long-term benefits will not be evident for some years.

THE PUBLIC AND THE FUTURE

The Treaty settlements already made or still in negotiation affect all parts of the country, and they include commitments likely to impact on society throughout Aotearoa New Zealand. So a broad public understanding of the changes afoot in Māori–Crown relationships is essential for these relationships to grow.

Risks that might threaten or undermine these relationships can come from many quarters — the bureaucracy, the political arena and personalities. An understanding of history is often lacking among people in organisations where this is crucial to their work: in the public service, in Treaty-sector agencies, and in bodies such as local government and other non Crown agencies.

Despite the requirement to recognise Treaty settlements and act on settlement undertakings, unwise decisions can still too easily be made. This need for informed vigilance asks a lot of people, despite the mechanisms now in place.

In short, a change in mindsets and attitudes is needed if people in Aotearoa New Zealand are to grasp the revolutionary shifts that have occurred and continue to evolve.

However, many factors are now shaping the national consciousness and influencing public attitudes to te ao Māori (the Māori world). Recognition of Te Tiriti o Waitangi as the founding document of the country is now accepted. The nine sheets of Te Tiriti (along with other significant documents) have taken pride of place in our National Library, in the He Tohu exhibition. The legislative framework for Treaty settlements is set up and continues to grow. In place, too, are the cautionary requirements for any policy moves by governments or their agencies that might affect settlements and, more specifically, Te Tiriti o Waitangi.

There is marked growth in use of te reo Māori. By 2000, the number of Māori fluent in te reo had expanded, largely through kōhanga reo, kura and wānanga, and through use on Māori radio and TV. Twenty years later, people throughout the community are taking up te reo, and it is used widely in the media.

The public has gradually accepted changing names for land features, towns and streets. Treaty settlements have sometimes re-established a name (for example, Taranaki for Egmont); the Geographic Board has played a part; and te reo alternatives such as Tāmaki Makaurau for Auckland are becoming more common.

Other changes have emerged from petitions: in 2015, Ōtorohanga College students asked for the New Zealand Wars to be commemorated annually, a request government acted upon; 26 October is now Te Pūtake o Te Riri, He Rā Maumahara, the National Day of Commemoration for the New Zealand Wars. And on 24 June 2022, the country celebrated Matariki, the Māori new year, for the first time; the date shifts annually with the Māori calendar, with Matariki now a public holiday.

CRISIS FOR GOVERNMENT AND THE PUBLIC

The first reports of Covid-19 emerged in December 2019. The virus spread rapidly around the world, and on 11 March 2020, the World Health Organisation declared a global pandemic. On 25 March, the government announced a national lockdown for all of Aotearoa New Zealand. This was to last two months, followed by strategies for containing (or eliminating) the disease until such time as a vaccination programme could be rolled out.

These restrictions (and further lockdowns) had significant impacts on health, social and economic wellbeing for many — and particularly for Māori and Pasifika, who are disproportionately represented in lower socio-economic groups.

Aware of the high number of Māori deaths in the 1918–19 influenza epidemic, Māori organisations and iwi were proactive in the Covid-19 response. Iwi with post-settlement infrastructure to draw on were able to act quickly, but many Māori and Pasifika groups reached out to their communities to provide support and drive vaccination programmes.

Nationwide, Covid-19 was largely held at bay until late 2021, when a new, highly transmissible variant arrived. And while the pandemic had not ended by late 2022, a combination of vaccination and immunity has allowed the country to resume activity, although not fully at pre-pandemic levels.

Work on Treaty settlements inevitably slowed over these three years, but settlements nonetheless progressed. As a general election approached in 2020, an assessment showed the achievements. The 29 OTS milestones (or annual goals) included six enacted pieces of settlement legislation, four Bills introduced to Parliament, and five signed deeds of settlement, with another six initialled. A framework for dealing with several hundred applications under the Marine and Coastal Area (Takutai Moana) Act 2011 had been developed and High Court hearings were in progress.

A LABOUR GOVERNMENT — 2020

Jacinda Ardern and the government won the October 2020 election by a large margin, giving Labour a clear mandate to govern — and, potentially, to institute change. In early 2021 the government moved quickly to announce several initiatives, as well as action to address long-standing issues.

Education

Aotearoa New Zealand is one of the few countries that has not required its history to be widely studied in schools. The social and legislative changes of the last 30 to 40 years, therefore, have often been challenging for many New Zealanders to understand and accept. Responding to initiatives from history teachers as well as the petition presented by the Ōtorohanga students, the government had announced in 2019 that it intended to have New Zealand history taught in schools.

In February 2021, a draft curriculum paper was released for public feedback. It promised to put the histories of the country’s peoples into schools nationwide in 2022/23; there was a strong emphasis on the histories of Māori, Te Tiriti and the New Zealand Wars. This will allow a new generation to grow up with a basis for understanding the complexity of Aotearoa New Zealand’s past as well as contemporary issues, and a sense of the country’s unique identity.

Land

In February 2021, an amendment to the Ture Whenua Māori 1993 Act came into force. Changes to the 1993 Act allowed greater flexibility for Māori owners in dealing with Māori land. Change came, too, for local government’s dealing with Māori land, when the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 was speeded through Parliament in March. This addressed rating issues that affected local government and Māori, and the related matter of Māori wards and the right for ratepayers to have a voice on specific interests.

Over time, when local government councils opted to have a Māori ward, too many had been forced by legislation to face a voter referendum that defeated such moves. The 2021 amendment removes this provision and allows for an effective voice representative of Māori interests in local government, though decisions on whether to establish a Māori ward rest with each council.

Health

In April 2021, government announced a major reform of the country’s health system. Instead of 20 district health boards, there would now be two national organisations with shared responsibility: Te Whatu Ora/Health New Zealand, charged with the planning and delivery of healthcare throughout the country, and Te Aka Whai Ora/Māori Health Authority, focused particularly on Māori outcomes.

Crucial to the government’s decision was acknowledgement of the shocking statistics associated with poor Māori health made public over many years and by the Waitangi Tribunal’s first-stage report on Māori health. Professor Mason Durie was appointed to oversee the first steps in developing a Māori health structure; both this and the broader changes proposed for the whole health system came into effect on 1 July 2022.

The judiciary

During 2021, the New Zealand Council of Legal Education urged the country’s universities to incorporate te ao Māori concepts (including tikanga Māori) in their law courses.

This draws on work by a group of Māori lecturers and on research carried out by the Law Commission. This is essential, as Māori concepts are increasingly used in the country’s judicial structure, including in district courts. Progress is also being made towards resolving issues through recognition of te ao Māori. Te Kura Kaiwhakawa/Institute of Judicial Studies runs courses on tikanga for judges; clearly, the place of tikanga in New Zealand common law, as well as statute, will be one of the important legal developments in the 21st century. Māori lawyers and judges have contributed significantly to making the legal system itself potentially an agent of change.

LOOKING TO A FUTURE AND SHARED AUTHORITY

By 2021, there had been gradual but significant shifts in many areas of government policy involving Māori–Crown relationships. Most of the population was, in one way or another, affected. At this time also, government was undertaking a comprehensive review of resource management and reforms to the three waters system (drinking water, storm water and wastewater). These potential changes collectively created some unease among the general public, which continued in 2022.

In May 2021 a report called “He Puapua” became public. Not confirmed government policy (and not formally released), “He Puapua” explored options for the country’s future. The report was prepared by a group appointed by government two years earlier to consider ways to give effect to the United Nations Declaration on the Rights of Indigenous Peoples (to which the National led government had agreed in 2010).

“He Puapua” spanned the years to 2040, the 200th anniversary of the Treaty. It outlined a path toward shared authority in the country, along lines already being established through Treaty settlements. Aspirational on some points, its broad approach was Treaty-based, going a long way towards meeting the requests made by Māori over nearly two centuries for the Treaty partnership to be acknowledged. Finalised in 2019, the report (which was more a discussion paper) was then put on hold.

Long-term goals, however, need wide-ranging public discussion, as indicated by the constitutional review reports of 2013 and 2016. The path toward 2040 that “He Puapua” outlined has the potential to move the country towards a new understanding of its constitutional framework that would be beneficial for all New Zealanders. The report asked for open-minded, innovative thinking. It also addressed a key question: after historical Treaty claims are settled, and foreshore and seabed rights determined, what might the Treaty relationship become?

Acknowledging some form of constitutional “transformation” or rebalancing of Māori–Crown relationships is central to New Zealand’s future. There have been tensions in that relationship since Te Tiriti was signed in 1840. The words used then were “He iwi tahi tatou”, often said to mean “We are now one people”, but better translated as “Together we are a nation”. The promise of two peoples together making a nation has moved forward, but has a way to go. It still requires solutions in the evolving Māori–Crown relationship that are acceptable to all involved, Māori and other New Zealanders.

Aotearoa New Zealand has been working on these matters for a long time, and intensely over the period from 1985, when the Treaty settlement process was extended to historical claims. That work is set to continue, with wider impacts increasingly evident. The ongoing Covid-19 crisis has gone some way toward bringing the country together as a community (although painful divisions also became more apparent). The urgency of the climate crisis is also encouraging a shared approach to problem-solving, although there are also some sharply differing approaches.

A country that can meet the significant challenges ahead is one that sees the need for joint decisions and is ready to act on them.

Government in a democracy must have the support of the public for changes to continue to evolve. This is essential for a true Treaty/Tiriti partnership. At Waitangi itself, the name of the museum is Te Kōngahu, the unborn child. It is a metaphor that indicates the 1840 agreement is yet to be fully shaped.

On Waitangi Day 2017, Prime Minister Bill English reflected on the Treaty: “We are all engaged in a great enterprise of building a country based on fairness, tolerance and respect.” Much depends on this continuing as the country moves towards 2040.

As Ngāpuhi lawyer Moana Tuwhare observed: “People in Ngāpuhi are over the situation where they are passive participants in processes that directly affect their futures . . . A significant result would be one that puts us back on an equal footing with the Crown.”

This extract is from the third edition of The Story of a Treaty/He Kōrero Tiriti, by Dame Claudia Orange, and published by Bridget Williams Books.