CHAPTER 17 MINERAL DEVELOPMENT AND NATIVE RIGHTS: THE NEW ZEALAND EXPERIENCE
| Jurisdiction | United States |
(Feb 1991)
MINERAL DEVELOPMENT AND NATIVE RIGHTS: THE NEW ZEALAND EXPERIENCE
Russell McVeagh McKenzie Bartleet & Co
Auckland, New ZeaLand
Introduction
1. New Zealand is situated in the south-west Pacific Ocean with two main islands — the North and South Islands — and other outlying islands. New Zealand encompasses an area of over 268,000 km2, making it similar in size to Great Britain and Japan. The South Island has an area of 150,000 km2 and the North Island an area of 115,000 km2. The chief outlying islands are Stewart Island, separated from the southern coast of the South Island by the Foveaux Strait, and the Chatham Islands located to the east of the South Island.
2. The indigenous people, or tangata whenua, of New Zealand are the Maori. The ancestors of the Maori reached New Zealand between one and two thousand years ago.
European Contact
3. New Zealand was "discovered" by Abel Janzoon Tasman who, on 13 December 1642, off the coast of the South Island,
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sighted the Southern Alps. He skirted the north-west of the island until his two vessels reached Golden Bay on 18 December. There, in the thickening dusk, his crew exchanged shouts with Maori in canoes; neither side understood a word spoken by the other. When the Maori blew pukaea, or war trumpets, Tasman believed a musical exchange was being sought and had two of his trumpeters play in reply. For the listening Maori, however, something altogether different was going on: a challenge to fight had been issued and accepted. The following day, four of Tasman's men were killed by the Maori when they attempted to row from one of their vessels to the other1 .
4. Tasman's instructions from his employers, the Dutch East India Company, had included a warning in dealing with "savages" to use extreme caution, since 'experience has taught in all parts of the world that barbarian men are no wise to be trusted'. Ignorant about what had caused this tragic incident, Tasman condemned it as an 'outrageous and detestable crime', named the place Murderers' Bay, then departed without setting foot on New Zealand soil2 .
5. The next contact with the European was nearly 130 years later in 1769 when the British explorer James Cook arrived in New Zealand. Cook, like Tasman, received advice on the treatment of indigenous people. But the Earl of Morton, President of the Royal Society, was responsive to the new 18th Century sensibility about the 'noble savage' and less concerned with guarding against 'savage violence' than with checking bloodshed by the European visitors3 . This, he said, would be 'a crime of the highest nature: they are human creatures, the work of the same omnipotent Author, equally under
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his care with the most polished European ... no European nation has the right to occupy any part of their country, or settle among them without their voluntary consent'4 .
6. Cook respected such advice. Occasions of violence brought pangs of conscience, and he took pains to demonstrate his weapons in ways that would minimise casualties. Observing the Maoris were a 'brave, open, war-like people and void of treachery, certainly in a state of civilisation, and executing their arts with great judgment and unweary patience'5 .
7. Cook's charts of the New Zealand coast and his published journals were, in effect, an invitation for further navigators to visit New Zealand: For the sealers and pelagic whalers who had invaded the Pacific by the late 1700's, and for the missionaries, who had begun their equally determined quest for Maori souls, by the second decade of the 19th century.
Colonisation
8. Relations between Maori and European, or Pakeha, in the early 1800's were largely harmonious. They were particularly so with the communities that grew around shore whaling stations in Foveaux Strait, Otago, Banks Peninsula, Cook Strait, Taranaki and Hawkes Bay. These stations relied heavily on Maori for food (vegetables and fruit, fish and pig). Maori whalers worked alongside Pakeha counterparts; Pakeha whalers married Maori women, raised families, and often became part of local tribal life6 . These Europeans introduced tools, utensils and western-style
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garments; but many of the values and standards of behaviour that regulated their activities were Maori7 .
9. Prior to 1840, New Zealand still belonged unquestionably to its tangata whenua. Maori were numerically dominant (about 100,000 Maori to 1,000 Europeans) and the survival of Europeans — in spite of their guns and occasional warships — depended on Maori goodwill and a burgeoning agricultural industry base. The Pakeha presence had little effect on Maori life at this time, other than indirectly: through provision of muskets, the supply of additional food sources, the gradual spread of literacy, and the introduction of viruses, to which Maori initially had no immunity8 .
10. Intensive European colonisation of New Zealand was not a serious prospect until the late 1830's. The New Zealand Company took steps to establish in Wellington, Nelson, Wanganui and New Plymouth, settlements that sought to transplant in New Zealand many of the features of English social life.
The Treaty of Waitangi
11. While British interests continued to be predominant, American and French activity increased in the 1830's. The United States, prompted by their whaling and trading interests, began treaty-making in the Pacific in 1826, and in 1839 appointed James Clendon as American consul in New Zealand. In the same year, eighty American whalers frequented New Zealand waters, most of them calling at the Bay of Islands. That year too, Kororareka became the headquarters for the French Catholic mission begun under Bishop Jean Baptiste Francois Pompallier in the Hokianga
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in 1838. Unlike the United States, France supported its traders and missionaries by regular naval visits. This increase in French and American activity worried local British traders and missionaries; Britain's earlier freedom of action, based on commercial and maritime supremacy, was contracting. While it was not a decisive factor leading to intervention, French and American expansion could not be ignored9 . Partly as a consequence of these initiatives, of the prospects of non-British settlement and of the appalling behaviour of riff-raff seamen and settlers in the Bay of Islands, the British Government decided to annex New Zealand. Hoping to do so with the consent of the Maori, preparations were made to enter into a treaty, the Treaty of Waitangi10 .
12. The Treaty of Waitangi has been described as 'hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in its execution'11 . William Hobson had arrived in the Bay of Islands as late as 29 January 1840 and immediately announced himself as Lieutenant-Governor, under the authority of the Government of New South Wales. He began issuing proclamations to British subjects and summoned the chiefs of the area to a meeting at Waitangi on 5 February. On the basis of instructions given to him by Lord Normanby, the Secretary of State at the Colonial Office, the text of the Treaty was drawn up by Hobson and his staff with some assistance from James Busby. It was quickly translated into Maori by Henry Williams and his son Edward. The Treaty was signed the following day — 6 February 184012 .
The Text of the Treaty
13. Ever since the signing of the Treaty, it has presented
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problems, especially in the interpretation of the text. The text in English cannot easily be reconciled with the text in Maori. The textual differences appear to have come about mainly because English does not translate well into Maori, and vice versa.
14. There are five parts to the Treaty13 . In the first part, the preamble, the objectives are stated — to protect Maori interests, to provide for British settlement, and to establish a settled form of civil government to maintain peace and order. The wording in the Maori text gives a slightly different emphasis. It suggests that the Queen's main promise to Maori is to preserve the chiefs and tribes in their proper mana or rank/status. Maori puts mana ahead of most things, for everything flows from it, including one's authority over land.
15. Next is the first article. In the English version, this article says that the chiefs accede their sovereignty to the English Queen. The Maori version literally translated, uses the word governorship, 'kawanatanga', for sovereignty. It is doubtful whether the words were understood in the same sense.
16. The second article promises the chiefs and tribes, in the English version, 'full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties'; the Maori version, more vaguely, spoke of 'the entire chieftainship of their lands, their villages, and all their property'. The more controversial aspect of the clause deals with 'pre-emption'. The English version stated simply that the chiefs yielded to the Queen 'the exclusive right of pre-emption' over lands they wished to alienate.
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17. The third clause, less controversial, promises the Maoris the rights and privileges of British subjects.
18. Finally, there is an epilogue where the signatories acknowledge that they have entered into the Treaty having regard to its full spirit. Those words were propitious. The Courts generally interpret native treaties nowadays having regard to their principles rather than their strict terms. In doing so, they seek the spirit of the Treaty. They have regard to the cultural meanings of words, and consider as well the surrounding circumstances, things said at the time, and the parties' objectives as gleaned from other sources.
Events Subsequent to the Treaty
19. The British government did not take the Treaty lightly. It insisted that its representatives, the...
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