By Claudia Orange

In a new edition of her popular book, The Treaty of Waitangi / Te Tiriti o Waitangi: An Illustrated History, distinguished historian Dame Claudia Orange brings the narrative of the Treaty up-to-date. In this extract, she explores the critical phase in the Treaty’s history that began with the passing of a significant piece of legislation. The year was 1975, and Whina Cooper was leading a massive hikoi towards Parliament.

The Treaty of Waitangi Act 1975

A new phase in the Treaty’s history began with the passing of the Treaty of Waitangi Act in October 1975. Few appreciated just how significant the event was. For forty years, Labour– Rātana MPs had been committed to this goal, and it was exactly fifty years since the Labour Party had first recognised the Treaty in a policy statement. It was a triumph for Matiu Rata, MP for Northern Māori, who had taken the initiative in pushing the legislation through.

Rata had two aims: to educate the public about the Treaty and to establish a process for settling grievances. When he promoted the New Zealand Day Act 1973, he hoped New Zealanders would use the national holiday on 6 February to celebrate the partnership initiated by the 1840 Treaty and to learn more about it. His second aim was to secure a tribunal to hear claims concerning Treaty breaches. The Treaty of Waitangi Act 1975 would provide for this.

The Act established the Waitangi Tribunal as a permanent commission of inquiry into claims by Māori against the Crown – that is, ‘where any Maori claims that he or any group of Maoris of which he is a member is or is likely to be prejudicially affected’ by legislation, regulations, Crown policy or practice, or any act done or omitted by or for the Crown. If the Tribunal considered that Māori interests were, or could be, prejudicially affected, it could make recommendations on the appropriate course of Crown action. The Tribunal consisted of a chairman (the Chief Judge of the Māori Land Court) and two appointees, one on the recommendation of the Minister of Justice and the other – a Māori – on the recommendation of the Minister of Māori Affairs.

The Tribunal had to take into account the ‘principles’ of the Treaty; these were not defined in the Act and had to be determined by the Tribunal. The ‘meaning and effect’ of the 1840 agreement were to be considered, drawing on both the Māori and English texts. The Tribunal could refuse to inquire into a claim that it considered ‘frivolous or vexatious’, or if the subject matter was ‘trivial’. Tribunal reports would go to the claimant, the Minister of Māori Affairs and any other appropriate persons. The Tribunal could also report on whether any provisions in proposed legislation were ‘contrary to the principles of the Treaty’.

The 1975 Act initiated a process that before long would bring the Treaty into the very forefront of the political arena. But its beginnings were inauspicious. Although the Act acknowledged the 1840 agreement, the Treaty of Waitangi/Te Tiriti o Waitangi itself – in both te reo and in English – was only appended as a schedule to the Act and therefore had no legal force. Although Māori had sought a statutory recognition, many were concerned that as part of a statute the Treaty itself might be vulnerable to being repealed. Most of all, the limitations placed on the Tribunal reduced its impact dramatically. The need for the Tribunal had arisen from the past record of the Crown and the inimical effect of some legislation on Māori interests (as submissions to the select committee on the Treaty of Waitangi Bill had recorded). Rata had hoped that the Tribunal’s powers would be retrospective, at least to the start of the twentieth century (the Māori Council had suggested 1905). But, in the event, the Tribunal’s jurisdiction applied only to claims arising after the legislation had been passed. There was also no retrospective review of legislation already on the statute book. Above all, the Tribunal had no power to enforce its recommendations.

For a time, the legislation appeared to be a piece of government ‘window-dressing’ – a suspicion that gained substance at the end of 1975 when the incoming National government delayed setting up the Tribunal. After an initial burst of activity in 1977, with hearings that opened in the incongruous setting of the plush ballroom of Auckland’s Intercontinental Hotel, potential claimants seemed to lose interest. The Tribunal went into recess. An amendment in 1977 transferred its administration from the Department of Māori Affairs to the Department of Justice. Claims were few, and for a time both officials and Māori turned their attention to the incorporation of Māori rights within human rights legislation. It would be another five years before the Waitangi Tribunal began to fulfil some of the purposes envisaged by Matiu Rata and his supporters. Māori demands for political change, meanwhile, took other, more assertive forms.

A wave of protest

The continuing loss of land and other problems were drawing Māori – both young and old – together. This sense of unity was demonstrated in September and October 1975 by a massive hīkoi (march). Led from Te Hāpua in the far north by Te Rarawa kuia Whina Cooper, the land march took a month to reach Parliament, stopping at many marae on its route. It coincided with the final passage of the Treaty of Waitangi Bill through Parliament, and raised both Māori and Pākehā awareness of the issues at stake.

There was a new note of resolve in the protests of the late 1970s. The stands Māori took over land disputes at Auckland’s Bastion Point in 1977–78 and at Raglan in 1978 were emphatic and challenging. And, in 1979, Matiu Rata resigned from the Labour Party to set up the Mana Motuhake Party, aimed at self-determination for the Māori people within the existing framework of government.

Large-scale immigration from the Pacific Islands brought fresh complications to race relations. The Treaty began to be seen by officials as, potentially, the unifying symbol of an emerging multicultural society. Keith Holyoake, Governor-General in the late 1970s, looked forward to the complete fulfilment of ‘He iwi tahi tātou’ by eliminating ‘any form of distinction’ between Māori and Pākehā. Many Māori interpreted this to mean the complete loss of a Māori identity. They pointed out that, until Pākehā accepted the full implications of biculturalism, national aspirations to claim the Treaty as a basis for multiculturalism were premature.

Waitangi Day now provided a forum for a new phase of protest. Challenges had originated with urban Māori groups in the 1970s; strident protest dominated the Waitangi ceremonies, particularly between 1979 and 1983. Young educated Māori were ready to articulate grievance forcefully; many were informed about protest movements in other parts of the world. A succession of groups began to challenge the Pākehā record in fulfilling Treaty promises – Ngā Tamatoa, Kotahitanga (revived in the 1960s), the Māori Organisation on Human Rights and, by the end of the 1970s, the Waitangi Action Committee and associated groups.

The demand of the modern protest groups was initially for greater Pākehā awareness and acceptance of Māoritanga – the whole complex of Māori culture and identity – which they claimed the Treaty had guaranteed. By 1980, the cry was for recognition of Māori as tangata whenua, the people of the land, and for an end to the loss of land from Māori ownership. Some called for Pākehā to acknowledge Māori sovereignty. There was little talk of the Treaty as a sacred compact, a concept that some regarded as suspect.

In response, the government became more cautious in pressing the ‘one people’ theme, and moved away from the concept of Waitangi Day as a Māori–Pākehā ‘celebration’. Instead, it would be the ‘celebration of an historical event’. But this was an official evasion of Treaty issues, and a number of Pākehā (including church leaders), as well as Māori, were becoming increasingly reluctant to follow the official celebratory line at Waitangi Day ceremonies. By the mid-1980s, the major churches were reappraising the role of the Treaty, through individual and group study. Most reviewed their leadership and structures to reflect bicultural principles; some also reassessed the validity of holding land gifted by Māori for specific purposes for which it was no longer used. New Zealanders generally, however, seemed more bemused and irritated by ongoing protest – although a random sampling of opinion in March 1983 indicated that most wanted to retain a day commemorating the Treaty signing.

In the early 1980s, Māori opinion on the Treaty was possibly more diverse than Pākehā. Activists were calling for ‘ratification’ of the Treaty, by which they usually meant greater legislative recognition, and for a ‘boycott’ of Waitangi Day ceremonies. By word and action, they challenged Māori to rethink long-held assumptions. For the elders of Te Tii marae at Waitangi, thrust into the public eye by protests, the challenge was not easy to accept. Protesters and police clashed at the marae in 1981, when one protester rushed on to the rostrum during the investiture of honours for Whina Cooper and Graham Latimer, a leader in Treaty-related work. Māori leaders felt that the young were ‘trampling on the mana of their elders’ by their methods of protest and their criticism of the Treaty. Many elders considered that the Treaty itself was not at fault, only the way it had been ignored by government or used in ways detrimental to Māori welfare.

Dame Claudia Orange is one of New Zealand’s most distinguished historians. After publishing her first, award-winning history The Treaty of Waitangi in 1987, she became General Editor of the Dictionary of New Zealand Biography, released in five volumes with the Māori biographies also in te reo Māori. A director at the Museum of New Zealand Te Papa Tongarewa for many years, she is now an Honorary Research Fellow at the museum. Dame Claudia has received many awards and honours for her contribution to a wider understanding of our history, which includes research for the exhibitions He Tohu at the National Library and Te Kōngahu Museum at Waitangi.

The Treaty of Waitangi / Te Tiriti o Waitangi: An Illustrated History is published by Bridget Williams Books.

Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q. 

You might also like:

What is the Treaty of Waitangi settlement process?

Q+A: Are our indigenous communities really free?