Indigeneity and Trends in Recognizing Māori Environmental Interests in Aotearoa New Zealand

Abstract

Valuing indigeneity is a recent phenomenon despite a long tradition in Aotearoa New Zealand of mechanisms that recognize Māori rights and interests. Political pressure to acknowledge indigeneity has been a prerequisite to greater recognition of Māori rights and interests in environmental policy. Māori involvement is now a feature of the state resource management system; however, more substantive forms of power-sharing is sought to secure tribal authority, to reaffirm Māori culture, and to ensure that land continues to shape the identity of Māori people.

Notes

1. M. H. Durie, “Universal Provision, Indigeneity and the Treaty of Waitangi,” Victoria University of Wellington Law Review 33: 591–600 (2002).

2. Many of these demands are captured within the United Nations Declaration on the Rights of Indigenous Peoples. United Nations, United Nations Declaration on the Rights of Indigenous Peoples (New York, NY: UN Publications, 2008).

3. R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Los Angeles, CA: University of California Press, 2003).

4. Ibid., 29.

5. T. A. C Royal, ed. The Woven Universe: Selected Writings of Rev. Māori Marsden (Ōtaki, NZ: The Estate of Rev. Māori Marsden, 2003), 68.

6. M. E. Forster, “Hei Whenua Papatipu: Kaitiakitanga and the Politics of Protecting the Mauri of Wetlands” (PhD thesis, Massey University, 2012), 105.

7. See, for example, Royal, The Woven Universe: Selected Writings of Rev. Māori Marsden; M. Roberts et al., “Kaitiakitanga: Māori Perspectives on Conservation,” Pacific Conservation Biology 2: 7–20 (1995); M. Kawharu, “Kaitiakitanga: A Māori Anthropological Perspective of the Māori Socio-Environmental Ethic of Resource Management,” Journal of the Polynesian Society 109(4): 349–370 (2000); D. Sinclair, “Land: Māori View and European Response,” in M. King, ed., Te ao hurihuri: The World Moves On (Wellington, NZ: Hicks Smith & Sons, 1975).

8. Statistics New Zealand, 2006 Census Data—QuickStats about Māori (Wellington, NZ: Author, 2006), http://www.stats.govt.nz/Census/2006CensusHomePage/QuickStats/quickstats-about-a-subject/maori.aspx (accessed 25 Jan. 2011).

9. See for example, M. P. K Sorrenson, “How to Civilize Savages,” New Zealand Journal of History 9(2): 97–110 (1975); D. V. Williams, Crown Policy Affecting Maori Knowledge Systems and Cultural Practices (Wellington, NZ: Waitangi Tribunal, 2001).

10. M. H. Durie, Te Mana, Te Kāwanatanga: The Politics Of Māori Self-Determination (Auckland, NZ: Oxford University Press, 1998).

11. C. Orange, The Treaty of Waitangi (Wellington, NZ: Bridget Williams Books, 2004).

12. Ibid., 21–22.

13. Ibid., 21.

14. Durie, Te mana, te kāwanatanga, 3; Orange, The Treaty of Waitangi.

15. Claudia Orange provides a detailed and scholarly discussion of the history of the signing of the Treaty of Waitangi and Treaty provisions; Orange, The Treaty of Waitangi, 32.

16. I. H. Kawharu, The Treaty of Waitangi: Translation from Māori to English, 1987, http://www.waitangi-tribunal.govt.nz/treaty/kawharutranslation.asp1987 (accessed 4 Nov. 2013); M. Mutu, “Weeping Waters: The Treaty of Waitangi and Constitutional Change,” in M. Mulholland and V. Tawhai, eds., Constitutional Intentions: The Treaty of Waitangi Texts (Wellington, NZ: Huia Publishers, 2010).

17. See, for example, Orange, The Treaty of Waitangi, 39–43; M. Belgrave, M. Kawharu, and D. Williams, eds., Waitangi Revisited: Perspectives on the Treaty of Waitangi (Auckland, NZ: Oxford University Press, 2005).

18. A parliamentary system of government named after the Palace of Westminster, London, where the Parliament of the United Kingdom is based. Key features of this system are the legislature that has the power to formulate laws and the executive that is responsible for the daily administration of the state.

19. D. Graham, “The Legal Reality of Customary Rights for Māori” (Occasional Paper No. 6. Wellington, NZ: Treaty of Waitangi Research Unit, Stout Research Centre, Victoria University of Wellington, 2001).

20. See, for example, any Waitangi Tribunal report that investigated historical treaty grievances.

21. See, for example, Belgrave, Kawharu, and Williams, Waitangi Revisited, 370; D. V. Williams, Te kooti tango whenua: The Native Land Court 1864–1909 (Wellington, NZ: Huia Publishers, 1999).

22. Sorrenson, “How to Civilize Savages,” 103.

23. Common law is developed by judges from decisions of courts and forms the basis of jurisprudence (the study of law and the principle on which law is based). English common law refers to law that has emerged from the legal system of England and Wales.

24. Rules that determine rights to use, to control, and to transfer land and associated natural resources.

25. Sorrenson, “How to Civilize Savages,” 97; A. Ward, A Show of Justice: Racial “Amalgamation” in Nineteenth Century New Zealand (Auckland, NZ: Auckland University Press, 1995); Williams, Crown Policy, 20.

26. Amalgamation and assimilation are terms associated with the mixing of races where ethnic minorities become assimilated into the dominant culture.

27. Ward, A Show of Justice, 38.

28. Sorrenson, “How to Civilize Savages,” 106.

29. Williams, Crown Policy, 20.

30. Repealed in 1846.

31. Was never gazetted so was not a law.

32. Williams, Crown Policy, 22.

33. Refer to the Report of the Waitangi Tribunal on the te reo Māori claim (Wai 11) for a more detailed discussion of the relationship of education policy and practice to amalgamation and loss of Māori language; Waitangi Tribunal, Report of the Waitangi Tribunal on the te reo Māori claim (Wai11) (Wellington, NZ: Author, 1989).

34. Williams, Crown Policy, 47–115.

35. Report of Department of Māori Affairs as cited in Ibid., 74.

36. Delamere, 1966 as cited in Ibid., 84.

37. Ibid., 72.

38. A. Agrawal, Environmentality: Technologies of Government and the Making of Subjects (Durham, UK: Duke University Press, 2005).

39. Williams, Te kooti tango whenua, 63.

40. Te Puni Kōkiri, Māori land information database (Wellington, NZ: Author, 1996).

41. A European term that makes a distinction between land that was actively transformed through settlement and cultivation and areas undeveloped or wild.

42. D. Young, Our Islands, Our Selves (Dunedin, NZ: University of Otago Press, 2004).

43. G. Park, “Effective Exclusion: An Exploratory Overview of Crown Actions and Māori Responses Concerning the Indigenous Flora and Fauna 1912–1983” (A report commissioned by the Waitangi Tribunal for the Wai 262 claim; Wellington, NZ: Waitangi Tribunal 2001); W. Pond, The Land With All Woods and Water (Rangahaua Whānui National Theme U. Wellington, NZ: Waitangi Tribunal, 1997); Young, Our Islands, Our Selves, 57. Also, Pre-European Māori engaged in substantive transformation of the ancestral landscape through activities such as deforestation by burning, settlement, and horticultural activities. As a consequence overexploitation of some bird and seal species did occur.

44. The word transfer has been emphasized as the Crown also passed legislative provisions, for example the Public Works Act 1876 and the Māori Land Settlement Act 1905, that provided for the compulsory acquisition of lands deemed as lying idle or waste areas or areas that were required for drainage.

45. For example, the 1843–72 New Zealand Wars were a series of conflicts related to the loss of authority over land.

46. R. McClean and T. Smith, The Crown and Flora and Fauna: Legislation, Policies, and Practices, 1983–98 (Wellington, NZ: Waitangi Tribunal, 2001); Waitangi Tribunal, Ko Aotearoa tēnei: A Report Into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity: Te taumata tuatahi (Wellington, NZ: Legislation Direct, 2011).

47. D. M. Loveridge, “Rangahaua whānui national theme k: Māori Land Councils and Māori Land Boards: A Historical Overview, 1900 to 1952,” in Waitangi Tribunal Rangahaua Whānui Series (Wellington, NZ: Waitangi Tribunal Rangahaua Whānui Series, 1996); Park, “Effective Exclusion,” 635–672; Pond, “The land With All Woods,” 145.

48. Williams, Crown Policy, 242–247.

49. New Zealand Law Commission, Study Paper 9: Māori Custom and Values in New Zealand Law (Wellington, NZ: Author, 2001).

50. For example, the Bruntland Report and the International Union for Conservation of Nature (ICUN) species and protected areas program.

51. For example, the 1972 Stockholm Declaration and the Rio Declaration.

52. For example, the Bonn, World Heritage, Ramsar, and the Convention on Biological Diversity.

53. McClean and Smith, The Crown and Flora, 31–106.

54. A. Harris, Hikoi: Forty Years of Māori Protest (Wellington, NZ: Huia Publishers, 2004); R. Walker, Ka whawhai tonu matou: Struggle Without End (Auckland, NZ: Penguin, 1990).

55. McClean and Smith, The Crown and Flora, 212.

56. Durie, Te mana, te kāwanatanga, 4.

57. M. H. Durie, “Universal provision, indigeneity and the Treaty of Waitangi,” Victoria University of Wellington Law Review 33: 591–602 (2002).

58. Belgrave, Kawharu, and Williams, Waitangi Revisited, 1; Durie, Te mana, te kāwanatanga, 175; J. Kelsey, A Question of Honour?: Labour and the Treaty 1984–1989 (Wellington, NZ: Allen & Unwin, 1990); Walker, Ka whawhai tonu matou, 186–219.

59. M. H. Durie, “Tino rangatiratanga,” in M. Belgrave, M. Kawharu, and D. V. Williams, ed., Waitangi Revisited: Perspectives on the Treaty of Waitangi (Auckland, NZ: Oxford University Press, 2005), 16.

60. M. Mulholland and V. Tawhai, eds., Weeping Waters: The Treaty of Waitangi and Constitutional Change (Wellington, NZ: Huia Publishers, 2010); A. Sharp, “The Treaty in the Real Life of the Constitution,” in M. Belgrave, M. Kawharu, and D. V. Williams, eds., Waitangi Revisited: Perspectives on the Treaty of Waitangi (Auckland, NZ: Oxford University Press, 2005); Te Puni Kōkiri, He tirohanga ō kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as Expressed by the Courts and the Waitangi Tribunal (Wellington, NZ: Author, 2001); D. V. Williams, “Unique Treaty-Based Relationships Remain Elusive,” in M. Belgrave, M. Kawharu, and D. V. Williams, eds., Waitangi Revisited: Perspectives on the Treaty of Waitangi (Auckland, NZ: Oxford University Press, 2005).

61. New Zealand Royal Commission on Social Policy, The April report: Future Directions, Volume II (Wellington, NZ: Author, 1988).

62. An excellent discussion of the principles is provided by Dr. Janine Hayward in J. Hayward, “Appendix: The Principles of the Treaty of Waitangi,” in A. Ward, ed., National Overview (Wellington, NZ: Waitangi Tribunal, 1997). Waitangi Tribunal reports are also a good source of information as principles are one of the frames that are used to develop findings and recommendations.

63. Conservation Act 1987 (Section 4); Crown Forests Assets Act 1989; Crown Pastoral Land Act 1998 (Section 25, Section 84); Crown Research Institutes Act 1992 (Section 10); Crown Minerals Act 1991 (Section 4); Education Act 1989 (Section 181[b]; Education Lands Act 1949; Energy Efficiency and Conservation Act 2000 (Section 6); Environment Act 1986; Fisheries Act 1996; Foreshore and Seabed Endowment Revesting Act 1991 (Section 3); Harbour Boards Dry Land Endowment Revesting Act 1991 (Section 3); Hauraki Gulf Marine Park Act 2000 (Section 6); Hazardous Substances and New Organisms Act 1996 (Section 8); Legal Services Act 1991; Local Legislation Act 1989; Māori Fisheries Act 1989; Māori Language Act 1987; New Zealand Public Health and Disability Act 2000 (Section 4); Ngāi Tahu Claims Settlement Act 1998; Ngāi Tahu (Pounamu Vesting) Act 1997; Ngāi Tahu (Tutaepatu Lagoon Vesting) Act 1998; Ngāti Tūrangitukua Claims Settlement Act 1999; Orakei Act 1991; Resource Management Act 1991 (Section 8); State-Owned Enterprises Act 1986 (Section 9); Te Ture Whenua Māori (Māori Land) Act 1993; Treaty of Waitangi Act 1975 (Section 6.1); Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; Treaty of Waitangi (State Enterprises) Act 1988; Waikato Raupatu Claims Settlement Act 1995; Waitutu Block Settlement Act 1997.

64. At least seventeen, including Te Ture Whenua Act 1993 and the Resource Management Act 1991. 62– 81.

65. Preamble to the Treaty of Waitangi Act 1975.

66. E. T. Durie and G. S. Orr, “The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence,” New Zealand Universities Law Review 14: 62–81 (1990).

67. Waitangi Tribunal findings can be downloaded from the Waitangi Tribunal Web site www.waitangi-tribunal.govt.nz. Some research reports can also be downloaded from the Web site, although the document banks are located at the Tribunal. Key environmental claims that the Waitangi Tribunal resided over in the 1980s were the Kaituna River claim (Wai 4), the Motunui-Waitara claim (Wai 6), the Manukau claim (Wai 8), and the Muriwhenua claim (Wai 22).

68. Durie provides a discussion of Māori interests in environmental management and key issues that emerged from claims to the Waitangi Tribunal including the aspiration to continue to be active kaitiaki of the ancestral landscape in M. H. Durie, “Mana atua: A Resourceful Environment,” in M. H. Durie, Te Mana, Te Kāwanatanga: The Politics Of Māori Self-Determination (Auckland, NZ: Oxford University Press 1998), 21–51.

69. Ibid., 23.

70. Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wellington, NZ: Author, 1988), 208.

71. Waitangi Tribunal, Waiau Pa Power Station Report (Wellington, NZ: Author, 1978).

72. Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim (Wai8) (Wellington, NZ: Author, 1985).

73. Ibid., 122.

74. Ibid., 122.

75. Waitangi Tribunal, Kaituna River Claim (Wai4) (Wellington, NZ: Author, 1984).

76. Waitangi Tribunal, Motunui Waitara report (Wai6) (Wellington, NZ: Author, 1983); Waitangi Tribunal, Kaituna River claim (Wai4), 40.

77. Waitangi Tribunal, Manukan claim, 144.

78. Waitangi Tribunal, Motunui Waitara Report (Wai6), 60; Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim (Wai8), 144; Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, 227–228.

79. The Māori Affairs Act 1953, the Fisheries Act 1908 (including the provisions for controlled fisheries), the Maritime Reserves Act 1971, the Maritime Farming Act 1971, the Marine Pollution Act 1974, the Health Act 1956, the Water and Soil Conservation Act 1967, and the Town and Country Planning Act 1977 (including the provisions for Maritime Planning areas), and any similar legislation (Waitangi Tribunal, Motunui 1983), 63.

80. Kelsey, A Question of Honour, 187–209; McClean and Smith, The Crown and Flora, 107–705.

81. Treaty of Waitangi Act 1975 (Section 6.1); Environmental Act 1986; State-Owned Enterprises Act 1986 (Section 9); Conservation Act 1987 (Section 4); Education Act 1989 (Section 181); Crown Minerals Act 1991 (Section 4); Resource Management Act 1991 (Section 8); Foreshore and Seabed Endowment Revesting Act 1991 (Section 3); Harbour Boards Dry Land Endowment Revesting Act 1991 (Section 3); Crown Research Institutes Act 1992 (Section 10); Hazardous Substances and New Organisms Act 1996 (Section 8); Crown Pastoral Land Act 1998 (Sections 25 and 84); Energy Efficiency and Conservation Act 2000 (Section 6); Hauraki Gulf Marine Park Act 2000 (Section 6).

82. R. Jefferies et al., Iwi Interests and the RMA: An Evaluation of the Quality of First Generation Council Plans (Ōpōtiki; Hamilton, NZ: Kōkōmuka Consultancy, International Global Change Institute, University of Waikato, 2002), 18.

83. M. Love, “Resource Management, Local Government and the Treaty of Waitangi,” in J. Hayward, ed., Local Government and the Treaty of Waitangi (Victoria, AU: Oxford University Press, 2003).

84. Local Government New Zealand, Local Authority Engagement with Māori: Survey of Current Council Practices (Wellington, NZ: Author, 2004).

85. E. Clark, “Section 33 of the Resource Management Act 1991,” in J. Hayward, ed., Local Government and the Treaty of Waitangi (Victoria, AU: Oxford University Press, 2003); Parliamentary Commissioner for the Environment, Kaitiakitanga and Local Government: Tangata Whenua Participation in Environmental Management (Wellington, NZ: Author, 1998); Te Puni Kōkiri, Te kotahitanga o te whakahaere rawa: Māori and Council Engagement Under the Resource Management Act 1991 (Wellington, NZ: Author, 2006).

86. See, for example, D. Crengle, Taking into Account the Principles of the Treaty of Waitangi: Ideas for the Implementation of Section 8 Resource Management Act 1991 (Wellington, NZ: Ministry for the Environment, Manatū mō te Taiao, 1993); K. Maynard and T. Reedy, Ki te u o te hiahia: A Guide to the Resource Management Act 1991 (Wellington, NZ: Ngā Kaiwhakamarama o ngā Ture, Māori Legal Service, 1999); Ministry for the Environment, “Case Law on Consultation” (Working Paper 3; Wellington, NZ: Author, 1995); Parliamentary Commissioner for the Environment, Kaitiakitanga and Local Government, 115.

87. During the reform of environmental legislation and upon enactment of the Resource Management Act 1991 (RMA) several publications were produced outlining Māori values and the customary practice of kaitiakitanga. See, for example, Department of Conservation, Māori Conservation Ethic: A Ngāti Kahungunu perspective (Wellington, NZ: Author, 1994); N. Kennedy and R. Jefferies, Kaupapa Māori Framework and Literature Review of Key Principles (Hamilton, NZ: International Global Change Institute, University of Waikato; Opotiki, NZ: KSCM Solutions, 2005); Royal, The Woven Universe, 54–72; Nganeko Minhinnick, “Establishing Kaitiaki” (A report prepared for the Resource Management Law Reform; Auckland, NZ: Author, 1989). In addition many local government authorities have commissioned resources to determine local values and interests of Māori and some of these reports can be viewed or downloaded from council Web sites. See, for example, the Bay of Plenty Regional Water and Land Plan at http://www.boprc.govt.nz/media/31139/Plan-081201-BOPRegionalWaterAndLandPlanKaitiakitanga.pdf (accessed 4 Nov. 2013).

88. See, for example, Local Government New Zealand, Liaison and Consultation with Tangata Whenua: A Survey of Local Government Practice (Wellington, NZ: Author, 1997); Local Government New Zealand, Local Authority Engagement; Ministry for the Environment, Consultation With Tangata Whenua: A Guide to Assist Local Authorities in Meeting the Consultation Requirements of the Resource Management Act 1991 (Wellington, NZ: Author, 1991); Ministry for the Environment, Case Law on Tangata Whenua Consultation (RMA working paper; Wellington, NZ: Author, 1999); Ministry for the Environment, Iwi and Local Government interaction under the Resource Management Act 1991: Examples of Good Practice (Wellington, NZ: Author, 2000); Parliamentary Commissioner for the Environment, Proposed Guidelines for Local Authority Consultation With Tangata Whenua (Wellington, NZ: Author, 1992); Te Puni Kōkiri, A Guide for Departments on Consultation With Iwi (Wellington, NZ: Author, 1993).

89. Forster, “Hei Whenua Papatipu, 207–219.

90. Durie, “Universal Provision, 594.