The Treaty of Waitangi and the 1987 Lands Case

Waiho ma te ture, te ture e aki na Te Kooti Rikirangi

Abandon futile acts; it is through the instrument of the law that the law will be instrumentalized

Within just seven years of signing the Treaty of Waitangi a case for customary title was established in the Courts, yet 30 years later there was a complete turnaround. In 1877 the Court established the Treaty as a nullity. Ngati Toa leader Wi Parata had taken a case against the Bishop of Wellington for misuse of lands gifted for a specific purpose, the establishment of an educational setting for Ngati Toa (see Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 78). The judge Prendergast C. J. found there was no land gift from Ngati Toa to the Bishop of Wellington because the Crown was found to own all the land by virtue of discovery and occupation. Here is blatant fraudulence. He also found these lands to be a territory inhabited only by savages, and that New Zealand was acquired through discovery and occupation—clearly a fabrication. That proprietary rights belonged to Maori were ignored. The ruling by the Court in the 1877 Wi Parata case effectively prevented Maori from successfully protecting their proprietary rights through the New Zealand Courts. For 110 years, from 1877 to 1987, the different versions of the Treaty created different pathways, leading to different outcomes for Maori and Pakeha; the Crown and its settler government (and successions of English settlers) recognizing the duplicitous English version (denying the declaratory law of Te Tiriti o Waitangi; maintaining a treaty of cession), and benefitting from the legal and political developments (wars, dominion over land and resources, and institutionalized power). Maori recognizing the legal (in international law) Maori version were prejudiced through denied rights (land and resource alienation, institutional racism, and powerlessness), without recourse to the courts of law. Rangatiratanga Maori was dismantled. As Stewart-Harawira (2005) argues:

Indigenous educational historiographies provide readings of the sustained and deliberate attack on the collective nature of indigenous social and political structures in an attempt to absorb indigenous “remnants” into the relations of production that sustain Western capitalism, thus facilitating European access to the lands and resources needed for the expansion of the capital. (p. 16)

The 1987 Lands Case (see New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 668) however brought about a shift in attitude in one major respect—it brought about an acceptance of the two Treaty texts in law and developed some Treaty principles, partnership (creating responsibilities analogous to fiduciary duties) between Maori and the Crown, clarification around principles, and for many a renewed belief by Maori in the rule of law.

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