NationStates Jolt Archive

Top-of-the-south iwi have reached a milestone in settling their long-running Treaty of Waitangi claim, and received an apology from Deputy Prime Minister Michael Cullen for the "significant grievances" the Crown caused them.

Tainui Taranaki ki te Tonga and the Crown signed a terms of negotiation document at Nelson's Whakatu Marae on Tuesday, to start talks on settling its treaty claim.

[...] The Crown released a preliminary report into treaty breaches in Te Tau Ihu, or the top of the south, in April, which found the iwi had been cheated out of land and resources.

Dr Cullen said Tuesday was the first milestone the Crown and Tainui Taranaki had reached in the settlement process.

"The Crown recognises its past actions have breached the Treaty of Waitangi and caused significant grievances to you and your family," he said.

Tainui Taranaki manager Chris Atutahi said before the signing that the group had suffered losses in the $3-4 billion range, but it was clear the Crown was only in a position to offer between 1 and 3 percent of that.


(link (http://www.stuff.co.nz/stuff/nelsonmail/4292456a6007.html))

Hmm, this is good to see. A lot of bad stuff went down with Maori and their land. Glad the Government is able to atleast acknowledge that Maori land wasn't handled all that well by the Crown back in the day.

hm? How is this news? Treaty settlements are fairly standard here. In fact, at the last election settling treaty issues by a certain date was a platform for many parties. This is no more or less interesting than the settlements that have gone on further north in recent years.

Hmm, this is good to see. A lot of bad stuff went down with Maori and their land. Glad the Government is able to atleast acknowledge that Maori land wasn't handled all that well by the Crown back in the day.

True; prime example, if Maori wished to sell land, they had to sell it to the crown, and the crown would sell it on their behalf. Thats ok, the Maori were apparently happy assuming that the Crown would ensure that the transaction was all kosher. The problem was that the money was never passed along to the tribe. So essentially, the land was confiscated by the crown.

True; prime example, if Maori wished to sell land, they had to sell it to the crown, and the crown would sell it on their behalf. Thats ok, the Maori were apparently happy assuming that the Crown would ensure that the transaction was all kosher. The problem was that the money was never passed along to the tribe. So essentially, the land was confiscated by the crown.

So what - if the tribal leaders did not ensure that the money was passed along to the tribe, then it was their fault, not the Crown's fault; the land was not confiscated. Even the majority land confiscations I feel were justified - these tribes committed an act of treason, rebelled against the government, and as the defeated, rightfully lost something. Among the few exceptions that I am willing to accept are things such as the Ngati Whatua case where their land was unfairly confiscated in the 1950s.

Now what I am waiting for is the compensation to those farmers that had their land stolen from them in the 1950s for the proposed Auckland Port at Te Atatu (it was never built); or for the descendents of Rev. Fairburn who saw his land confiscated in the early 1840s (much of South and East Auckland was owned by him).

True; prime example, if Maori wished to sell land, they had to sell it to the crown, and the crown would sell it on their behalf. Thats ok, the Maori were apparently happy assuming that the Crown would ensure that the transaction was all kosher. The problem was that the money was never passed along to the tribe. So essentially, the land was confiscated by the crown.

That, and because they could only sell to one buyer, they got paid way below market value. And then the Crown turned around and sold it to European settlers for a profit. And that's how they financed most major public works in NZ up to the 1900's.

Now what I am waiting for is the compensation to those farmers that had their land stolen from them in the 1950s for the proposed Auckland Port at Te Atatu (it was never built); or for the descendents of Rev. Fairburn who saw his land confiscated in the early 1840s (much of South and East Auckland was owned by him).
So a few isolated confiscations around Auckland are equal to taking an entire country? Get real.

That, and because they could only sell to one buyer, they got paid way below market value. And then the Crown turned around and sold it to European settlers for a profit. And that's how they financed most major public works in NZ up to the 1900's.
Also add in that most, if not all, tribal land was communal. Often the sale was made by one member without everyone else's agreement or indeed knowledge.

Given that the Maoris were treated comparatively quite well to how us Australians treated our indigenous population, this couldn't be more timely given that Rudd came to power on the promise of officially apologizing to the aboriginal people.

Given that the Maoris were treated comparatively quite well to how us Australians treated our indigenous population, this couldn't be more timely given that Rudd came to power on the promise of officially apologizing to the aboriginal people.
That'd certainly be a good thing to do. Long overdue too. Here's hoping.

So what - if the tribal leaders did not ensure that the money was passed along to the tribe, then it was their fault, not the Crown's fault; the land was not confiscated. Even the majority land confiscations I feel were justified - these tribes committed an act of treason, rebelled against the government, and as the defeated, rightfully lost something. Among the few exceptions that I am willing to accept are things such as the Ngati Whatua case where their land was unfairly confiscated in the 1950s.

Now what I am waiting for is the compensation to those farmers that had their land stolen from them in the 1950s for the proposed Auckland Port at Te Atatu (it was never built); or for the descendents of Rev. Fairburn who saw his land confiscated in the early 1840s (much of South and East Auckland was owned by him).

It was never up to the tribal elders to ensure that the money was passed on or not. It was not even up to the tribal elders to make sure they got a fair deal. Those details were in fact duties of the Crown.

There is a long line of jurisprudence going back to the earliest colonial years of the British empire, dealing with just these sorts of transactions. It is well established that the Crown acts a fiduciary when dealing with aboriginal land transactions. This is because of the unique nature of the relationship between the Crown and aboriginal nations. Aboriginal nations were only allowed to surrender their land to the Crown. The Royal Proclamation of 1763 laid this out quite clearly though it was common law long before that. Now since the Crown was the only possible purchaser of aboriginal lands and therefore the only possible vendor of former aboriginal lands, a duty was created to ensure that these lands were purchased fairly, and that rights were properly and explicitly extinguished if this were the intention. Otherwise you’d have a situation where the Crown could simply purchase lands for a pittance or take them outright, and then go ahead and sell them at whatever price they wished. While that might seem fair to you, it is not acceptable under law in any Commonwealth nation.

So strong is this duty, that even when lands are LEASED to the government,( R. v. Guerin) the government has a positive duty to ensure that the best possible deal is given to the aboriginal nation leasing the lands to the government.

For some background into this fiduciary duty, I’d suggest taking a gander at the Seminole Nation v. United States, Ontario (A.G.) v. Bear Island Foundation, or an 1895 decision Ontario v. Dominion of Canada and Quebec: In Re Indian Claims. Since there are not a lot of aboriginal rights cases out there, decisions in other Commonwealth nations have been highly persuasive in both Australia and New Zealand.

I actually oppose native title through lease or private ownership (to the Leader of the tribe or whatnot), the best way is collective tenure, both to preserve the culture of the indigenous people and to ensure the land does not become the private domain of one individual and his extended clique who end up running it like a cartel (ie Native Americans). Collective tenure ensures the entire native population gets equal use, so it's like public property except the ownership is common to the group/tribe rather than in this case the NZ govt/crown. If you don't do that you'll just have a few black individuals use it to build a casino or whatever and just shaft the culture and land rights or everyone else in that specific community.

I actually oppose native title through lease or private ownership (to the Leader of the tribe or whatnot), the best way is collective tenure, both to preserve the culture of the indigenous people and to ensure the land does not become the private domain of one individual and his extended clique who end up running it like a cartel (ie Native Americans). Collective tenure ensures the entire native population gets equal use, so it's like public property except the ownership is common to the group/tribe rather than in this case the NZ govt/crown. If you don't do that you'll just have a few black individuals use it to build a casino or whatever and just shaft the culture and land rights or everyone else in that specific community.


Ie: Native Americans? Please elaborate.

Have you read Delgamuukw by the way? It discusses communal title.

Now. What if the community as a whole decide to build a casino to raise revenue for projects that help create the infrastructure necessary for economic sustainability? Would you still oppose that?

And what is your stand on self-government? If you support communal land rights in the name of cultural preservation...then who decides how the culture is 'preserved'?

Ie: Native Americans? Please elaborate.

Have you read Delgamuukw by the way? It discusses communal title.

Now. What if the community as a whole decide to build a casino to raise revenue for projects that help create the infrastructure necessary for economic sustainability? Would you still oppose that?

And what is your stand on self-government? If you support communal land rights in the name of cultural preservation...then who decides how the culture is 'preserved'?
Well presumably the the communal tenure would be contingent on the community only using it for cultural things, sure houses could be built and all but communal tenure should not be used for mass revenue gaining, that goes against the entire culture and the purpose of collective title - which is cultural preservation. If a private individual, or group of private individuals, wish to use any land for mass commercial enterprises (like Casinos) then they shouldn't be able to claim communal title and instead should have to pay for it like anyone else would. That stinks of using native title to get profit rather than cultural autonomy in that land.

I know the Crown is conventionally neutral, but I would love to know what QE2 thinks of that.

I also have a feeling that, in the UK at least, the Crown is a legal entity that exists more out of necessity than actuality and is, therefore, as a non-extant legal fiction, incapable of an apology...

Well presumably the the communal tenure would be contingent on the community only using it for cultural things, sure houses could be built and all but communal tenure should not be used for mass revenue gaining, that goes against the entire culture and the purpose of collective title - which is cultural preservation. If a private individual, or group of private individuals, wish to use any land for mass commercial enterprises (like Casinos) then they shouldn't be able to claim communal title and instead should have to pay for it like anyone else would. That stinks of using native title to get profit rather than cultural autonomy in that land.

I have a few problems with what you've said here, and before I get into it, I'd like to preface my comments with a disclaimer...I'm not chewing you out personally, and I'm approaching this as a First Nations woman.

In Delgamuukw, Chief Justice Lamer laid out some conditions very similar to what you've discussed, dealing with how lands held by aboriginal people could be used. Aboriginal title depends on the lands not being significantly altered to make traditional use impossible. His example was turning a traditional hunting ground into a parking lot. This, he argued, would render the aboriginal title invalid.

Now you can see how this would be important, especially in a time when land claims are still being dealt with. When an aboriginal nation makes a claim to a particular parcel of land, it must first still be accessible in traditional ways. That means, if someone ELSE already built that parking lot, a claim for that land based on traditional hunting practices there will not succeed. However, if the land is intact and the land claim is successful, the band can still lose that land if they themselves alter it too severely.

One of my problems with this approach is the inherent assumption that we should not be allowed to:

a) change
b) make our own decisions as to land use.

Underlying these assumptions are certain beliefs about us as a people. 'Cultural preservation' as it is often used means 'frozen in time'. There is no recognition that our cultures have changed significantly over the years, and continue to change. Horses were introduced to my people only a few hundred years ago, mostly replacing our reliance on dogs. This did not cause a dilution of culture, we adapted our beliefs and our customs to this new resource. The same can be said of guns, of metal pots, of various implements and tools introduced by the Europeans. New technology does not mean that we will lose our culture...and yet in many ways, this is exactly what is being assumed. We are told we must be 'protected'...that new economic models, not being 'traditional' will immediately strip us of our culture. This is false.

It is imperative...and I mean absolutely essential, that aboriginal nations develop a sustainable economic model. We lose the best and brightest among us because there is no employment, and no opportunity in the majority of our communities. The casino issue is generally viewed as being a jurisdictional issue rather than an economic one. In the vast majority of cases, casinos provide nations with the first step towards this sustainability. For example, my home reserve is involved with a casino project in conjunction with three other sister reserves. The casino is being constructed now, but there is a ten year action plan linked to that casino, broken into two year intervals. The first initiative is to use funds from this future casino for language initiatives. Funding for fluent speakers to be trained in order to teach in the schools, funds for resource development etc. The second initiative is a blended health/recreation initiative that will see community rec centres upgraded, and new programs developed to get our youth involved in healthy activities. Some funds will be used to develop a self-government strategy (we have been in self-government negotiations for about 10 years, but lack of funding has really hurt that development).

The point is, the money from this casino is earmarked for deeper, more lasting improvements to our communities, and directly linked to cultural preservation in a very active sense. We are not 'frozen in time'. Another initiative will be the introduction of wireless technology to remote communities...technology is a major part of ALL of these initiatives.

Our beliefs, our worldview, our culture...these are norms that can be adapted to whatever situation we are in, low or high tech. Just like European beliefs, worldviews and culture can be.

When you say that you don't think we should have the choice to do 'x' with OUR lands, and OUR resources, you simply perpetuate the paternalistic system that believes we are incapable of managing ourselves. It also perpetuates an outdated notion that we must remain low tech in order to preserve our culture, or that certain economic systems would 'destroy' us. I'd like you to think about this a bit, and perhaps flesh out the kinds of 'limits' you think the state should be imposing on aboriginal lands.

I know the Crown is conventionally neutral, but I would love to know what QE2 thinks of that.

I also have a feeling that, in the UK at least, the Crown is a legal entity that exists more out of necessity than actuality and is, therefore, as a non-extant legal fiction, incapable of an apology...

The Crown in the UK, Canada, Australia and NZ is the government. Federal, provincial or territorial as it may be. The 'Crown' does not refer just to QE2, but rather to the political entities at the various levels.

And this apology is hardly earth shattering, to say the least. It is simply an acknowledgment of Treaty breaches.

I know the Crown is conventionally neutral, but I would love to know what QE2 thinks of that.

She's bound by the Treaty of Waitangi, having inherited that responsibility (vested in the government of New Zealand) when she became Queen of New Zealand.


I also have a feeling that, in the UK at least, the Crown is a legal entity that exists more out of necessity than actuality and is, therefore, as a non-extant legal fiction, incapable of an apology...

Elizabeth II's function as Queen of New Zealand is distinct from her function as Queen of the UK. The Treaty of Waitangi is part of active NZ legislation, and is the legal document which legitimises Pakeha presence in NZ. There is a binding contract between the Maori iwi and the Crown, which now means the government of NZ acting as representative of the Crown.

snip

Well put. What exactly is it we think we are "protecting" Aboriginal people from?

Well put. What exactly is it we think we are "protecting" Aboriginal people from?

Our own inferior selves.

That's really what it boils down to. Most of the time, the people who really want to 'help' us don't realise that they actually deep down believe we are incapable of helping ourselves, and in some fundamental way are inherently flawed.

It's...frustrating.