What is the future of the Treaty of Waitangi after the
apologies and economic redress? Many will be surprised to
discover significant political and legal change could lie
just over the horizon. But the public has nothing to fear and
much to gain, those involved tell Bruce Munro.
The entrance to the University of Otago Arts Building, where
politicos, historians, theologians and literary and language
buffs beaver away, is through a tunnel of scaffolding and
tarpaulin at the Albany St end of the rectangular four-storey
concrete box that has occupied this spot since the late
It was officially opened in 1969.
In the same year, former arts student James K. Baxter
established his Jerusalem community on the banks of Whanganui
River, alcohol limits were introduced for drivers and the
first major oil strike was made off the Taranaki coast.
It was the year before a radical new Maori activist group,
Nga Tamatoa, would add volume to calls for the Treaty of
Waitangi to be ratified; six years before a mass land march
from Northland to Wellington would force the Government to
establish the Waitangi Tribunal to investigate Treaty
Associate Professor Janine Hayward's office is on the fourth
floor of the building, towards the north end, facing the
Cerebos Gregg's coffee factory.
The internal layout, including what is now Prof Hayward's
office, does not appear to have changed in any respect during
those almost five decades.
But change, if not constant, is inevitable.
Outside her window, workmen are busy hacking off balustrades
and balconies before further weighty chunks of corroded
concrete fall without warning.
In fact, in another three years the whole building will be
pulled down and replaced. And if the offices and hallways
have not changed, what is taught and talked about within
these walls certainly has.
The conversation Prof Hayward is having now would have been
as unlikely as it would have been impossible without the
changes of the past few decades.
"We've been doing some really important things for our
nation,'' Prof Hayward, who teaches Treaty politics, says.
"The Crown's apologies for what happened are hugely important
in terms of nation-building ... The economic redress has
really helped to change the economic circumstances for a lot
of iwi and hapu.
"What people are much less aware of, is that once that's
finished there are still a lot of conversations that the
nation needs to have which are still important for the Treaty
... Because the economic issues by and large will have been
addressed, but there's an awful lot of political issues still
to talk about.''
It is as though there are two parallel histories of New
Zealand, Prof Hayward says.
"And the mainstream history keeps getting these really
important glimpses of the other history.''
It happened when the land marches of the early 1970s revealed
that New Zealand race relations were not as wholesome as many
liked to think.
The government of the day reacted by establishing the
"It was much better for them to institutionalise all that
anger into the Waitangi Tribunal than to have it stay on the
streets and cause international embarrassment. Frankly, the
Government did not have any clue what they were getting
themselves into when they did it. There's plenty of evidence
As a result, people are now a little better informed. "They
generally have a sense that historically something did go
wrong, and that the Government is making amends for that.''
But if people are still coming to grips with the detail and
meaning of the settlements, they are bewildered by brief
sightings of what comes next.
"That was most apparent at the end of last year. The Waitangi
Tribunal released its Northland Waitangi Report and the
headline from that was that Maori, that the Treaty, did not
cede sovereignty to the Crown.
"That's a good snippet of the kind of conversation we've got
ahead. Because the thing that the Treaty settlements has not
settled is Maori tino rangatiratanga.''
Those who knew Treaty history and were familiar with the
Tribunal found the report "no surprise'' and "fairly
self-evident'', Prof Hayward says.
"With Treaty settlements and greater economic clout, Maori
can make more decisions for themselves. But that is economic
independence, not political. We are yet to have the
conversation about that.
"It's a really big surprise to a lot of other people. There's
a big gap to bridge there.''
Talk of tino rangatiratanga and sovereignty causes fear.
That is not a reason to avoid the conversation, Prof Hayward
"When people hear about tino rangatiratanga they think we are
going to end up with two parliaments ... That's not the
conversations about tino rangatiratanga that I hear about.
"That is why I think it is really important that we start to
listen to what it is that Maori are talking about, and
realise that what they want to do will benefit all of New
Zealand because it will be a good thing for Maori communities
to take control of their own affairs.
"If I know that other New Zealand communities are happier and
healthier and economically more sound and people are
achieving their potential, why would I not want that to
"But I do think it is really important that we have a chance
to talk about it so people don't leap to thinking this is
going to be divisive, because its actually going to be the
Prof Hayward's career in Treaty politics research had its
genesis in Samoa when she was a teenager.
"It gave me the experience I think every New Zealander should
have; of being a minority in a culture you are not familiar
with. I always, from then, had an interest in why New Zealand
isn't doing such a good job in recognising cultures and
allowing them to flourish.''
How the "by Maori, for Maori'' conversation will come into
the public arena is unclear.
Public protest put Treaty grievances on the agenda, and in
the end government drove the Treaty settlement process.
But politicians are unlikely to continue to take the lead,
Prof Hayward says.
"That's why I'm interested in the United Nations Declaration
on the Rights of Indigenous Peoples, which New Zealand has
"My guess is ... local governments and communities will start
to recognise that the kinds of things the declaration talks
about make a lot of sense in New Zealand ... It may be more
of a bottom-up growth.''
Law 'designed to evolve'
A couple of hundred metres north and overshadowing its artsy
cousin is the university's Richardson Building, home to the
In the high-ceilinged foyer hang three large panels bearing a
poem, Rain, by Hone Tuwhare.
Tuwhare has been described as "New Zealand's most
distinguished Maori poet writing in English'', a man merging
two worlds in one body, one mind and one extraordinary gift.
On the eighth floor is the office of Prof Jacinta Ruru.
Central Otago-raised, of English and Ngati Raukawa
extraction, the law faculty's newest professor is excited by
a noticeable growth in student interest in the Treaty during
the past decade.
Prof Ruru's vision of the Treaty's legal legacy is as
unexpected as Prof Hayward's talk of political independence.
She warms up to the topic by mentioning the Te Urewera Act
2014, which was a key part of Ngai Tuhoe's Treaty settlement.
The Act recognised Tuhoe as the national park's host and
guardian and established a board to provide governance of Te
"It is a real example of how we can be thinking in a new,
exciting, innovative way, an inclusive way, about the
ownership and management of national parks,'' Prof Ruru says.
Ownership begs the question; whose definition of the word is
"Maori do not use the English understanding of ownership ...
The English concept is usually associated with exclusion,
being able to do whatever you like with that land; in other
words, full alienation right to the land. Those ideas are
derived from common law.''
But the definition, according to Maori custom and law, is
"It doesn't necessarily mean exclusiveness. It doesn't
necessarily mean full rights to dispose of it in any way that
one sees fit."
And here comes the surprising rub: "We've already had a
Supreme Court decision, in 2012, recognising that tikanga
Maori, or Maori law, is part of our common law''.
What Prof Ruru is foreshadowing is a morphing of our law into
something that is not Pakeha law nor Maori law, but something
new and distinctly New Zealand.
"Yes. I would love that,'' she says. "Law is designed to
evolve and be dynamic and be part of society.''
This is the direction that four decades of wrestling with the
Treaty is leading us towards, she says, citing Te Urewera Act
and other moves by courts to recognise Maori law.
The conversation has already begun, albeit mostly in Maori
legal circles. But it has begun to flow outwards.
Prof Ruru is working with Justice Joe Williams on a major
book on the subject.
Justice Williams, who was the chief judge of the Maori Land
Court and chairman of the Waitangi Tribunal, is now a High
Court judge. A team of academics is also involved, including
recently appointed High Court judge Matthew Palmer.
The book will cover Maori law, common law, Maori land law and
It will also look at different areas of law - family law,
criminal law, intellectual property law, environmental law -
and examine the Maori dimension of that law in the New
Zealand legal system.
It will be published later this year.
"We hope this will be a landmark book which develops the
conversation,'' Prof Ruru says.
"I think this is a real future for New Zealand; to consider
our New Zealand law and the place of Maori law within it.
"It would become a New Zealand way of understanding our legal
system and history and future.''
The genuine articles
Edward Ellison is cautiously amazed by his iwi's change of
status within one lifetime.
Mr Ellison (65), ONZM, is chairman of the Otakou Runanga's
external issues group.
He is also chairman of Kai Tahu ki Otago Ltd (KTKO), an iwi
consultation service that works with local government,
government departments and private parties on Maori-related
aspects of resource management, environment and land issues.
He is surprised by progress in the relationship between Ngai
Tahu and other parties, especially since the iwi's Treaty
settlement in 1998.
"Before the Waitangi Tribunal started no-one knew who Ngai
Tahu were,'' Mr Ellison, who was raised at Otakou, on Otago
"Thirty years ago, my perception is, we were public enemy
number one because of scaremongering by people who thought we
were going to claim private property and so on.
"It has gone from that to a much more mature and informed and
engaged and relaxed relationship, such that now it is
"I've seen that in just one short lifetime; it's quite
But he remains cautious about how the partnership
relationship will develop, particularly with government
"In my view the threats come from the Crown's capacity to
change shape, colour and personnel; to reshape themselves,''
Mr Ellison says.
"There is always the risk when you've got governments
restructuring or changing the way they do things that the
settlement we signed up to fades away.''
The Department of Conservation (Doc) is a case in point, he
"Doc, with the significant change there, it's become
difficult to have our traditional interests understood and
"That's no criticism of the local people. It's the
restructure that has created these gaps. So, places that are
of high importance to us, we're not aware of what is going on
In November, the iwi found out by chance that someone wanted
to alter the natural bridge on the Kawarau River, a site of
significance about which they should have been consulted.
"It's an example of how, when change occurs, they need to
make sure it is not harming the Treaty relationship.''
Mr Ellison says Ngai Tahu is not pursuing allocated
representation on local government councils.
"We try for the structured relationship so we have the
engagement, not with an individual who is put there, but
meeting with representatives in a structural way ... so we
can engage on important issues and work them through and have
a strategy to work together.
"That's how we have been going about it.''
The Otakou Runanga continues to seek a mataitai, a customary
fishing reserve, in Otago Harbour.
The maitaitai, which it applied for in 2008, would allow the
runanga to manage all non-commercial fishing in the harbour.
"We are waiting for the minister to decide on that. We've
been told, yes the decision is close at hand, but there's
been no clear indication of when.''
If granted it would be "a significant venture in the city'',
Mr Ellison says.
The Treaty settlement and the way it continues to be worked
out has changed how Mr Ellison feels about his homeland.
"Oh yeah. It's not there yet, but I think it is starting to
reflect what our ancestors thought they were signing up to.''