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The Treaty of Waitangi Tribunal

Discuss about the Economic and Legal Significance Treaty of Waitangi.

The Treaty of Waitangi (“the Treaty”) is a document whose original copy now lies in display at the National Museum and has been described as New Zealand’s founding document. In the year 1840, indigenous Māori chiefs together with Queen Victoria’s representatives executed the treaty which laid down the modalities under which Britain would colonize New Zealand.

The treaty was authored by Governor William Hobson, under the instructions of L. Normanby- a British Colonial Secretary. Hobson sought the help of various missionaries who had already set foot in New Zealand and his other aides to draft the treaty in English. The treaty was later translated into the Māori language and then back to the English language which then became the official English version. Critiques have argued that the translations do have a somewhat different meaning; however, it is generally accepted that an exact translation was quite impracticable and the two translations do reflect the spirit and true intention of the Queen.

The treaty is divided into four parts: the preamble and three articles. The preamble is cognizant to the fact that at the time of the treaty’s creation, there were huge influxes of British citizens into New Zealand. To protect the rights of the Māori and to ensure a peaceful coexistence of the Māori and the British settlers, the Queen deemed it necessary to strike an agreement in the form of the treaty with the Māori people.

In that spirit, under the first Article, the Māori chiefs ceded authority over New Zealand to the Queen. In the second Article, the queen undertook to protect the proprietary rights of the Māori people and provided that no unjust alienation from their land, treasures and other possessions (tangible of intangible) would occur and that the Māori could only sell their land to the Queen’s representatives willingly at a negotiated price. Finally, the third Article concluded by a promise that the people of Māori and the British settlers would receive equal treatment by the Queen’s colonial government.

Even with the letter and spirit of the treaty, there emerged numerous claims of breaches of the treaty especially the guarantees under the second Article and other injustices on the Māori people. As a result, in 1975, the Waitangi Tribunal was formed by the government with the sole responsibility of preparing report and proposing settlement mechanisms for the various claims lodged with the tribunal. Indeed, it was the tribunal’s findings that successive governments had breached the treaty repeatedly (Johnston, 2011).

Economic Significance of the Treaty

The tribunal was later faced with a major challenge as regards its relevance in 1977 when the government made it possible for citizens to negotiate settlements without necessarily going through the tribunal. Despite such challenges and others e.g. having limited resources and taking too long to table its reports, the tribunal has managed to produce a vast number of findings which have remedied some of the historical injustices.

The following parts shall delve into the economic aspects of the treaty and its relevance to New Zealand business and economics today and the legal implications of the treaty.

Signed in 1840, the treaty is 176 years old today. A pertinent question therefore is: what relevance does such an old document have in today’s business world? This is quite an emotive question that has attracted various answers. There are those who hold the view that the treaty is of no relevance today by all means while at the same time there are those who hold the view that the treaty remains essential to New Zealand today.

Critics of the treaty such as Walker Ranginui criticize the treaty as a confusing document that the Māori people did not fully comprehend and fault the treaty for the conflicts and injustices that had historically been committed upon the Māori (Kuntz, 2014). Other argue that the treaty is holding New Zealand back by delving on the historical injustices instead of moving on and focusing on building the country together.

In the contrary view, the supporters of the treaty view it as a necessary tool in today’s business practices. These proponents lay emphasis on the treaty’s principles which are: partnership, participation and protection. These principles have been argued to be of great significance as they can be employed by businesses to promote the business agendas and in the long run reward the firms financially.

On the principle of Partnership, it can be argued that when the treaty was first formulated, the intention behind it was to make it possible for the British settlers and the Māori to co-exist in a form of a partnership and work together for the good of the nation and everyone. This spirit of partnership is essential to a business by promoting cultural diversity within the workplace. According to the Office of Ethnic Affairs, ethnic diversity has both qualitative and quantitative advantages which ultimately translate to financial benefits for organizations that promote and practice cultural diversity within their workforce.

The Treaty's Principles

In New Zealand, statistics confirm that the Māori are the second largest group. Organizations therefore ought to tap into this and other groups to harness their traditions and practices which can be utilized to promote the businesses’ agenda in the specific communities. It is such partnerships that are considered to be both mutually and economically beneficial to the involved participants.

Secondly, the treaty promoted the principle of participation to ensure that the Māori people were not locked out. In the same spirit, today’s businesses are encouraged to ensure they allow the Māori people the opportunity to participate in their businesses’ agendas. Statistics reveal that there are growing numbers of the Māori population and this can be used as a good source of labour force that can be tapped into by businesses.

The treaty’s final principle is the protection of the Māori, which has been held by courts to include the protection of their cultures. Paine (2003) states that organizations have come to the realization that it is essential to protect values in the organization as part of effective management. Businesses are therefore encouraged to preserve the values held by the Māori people which can be harnessed and used as a guide for the businesses’ operations. Through such practices, businesses will establish a true connection with the heritage of New Zealand. Further arguments have it that employees can get to know more about New Zealand’s culture and therefore  lead to increased passion for the country and the businesses.

In addition to the above, it is arguable to state that some spiritual practices of the Māori may be important to the operations of a business. Honoring such practices as the tapu which involves getting rid of equipment or machines that have caused death in the work place may be a form of closure which will enable the employees to move on from such incidents.

Further, Johnstone (2005), in his presentation to the Te Awe Wellington Māori Business Network, emphasized the fact that the treaty is a fundamental tool to businesses. His talking points were that the business leaders should intervene in the settlement processes and advice the claimants to avoid lengthy and resource consuming processes and instead encourage speedy negotiation of settlements. Further, the businesses would guide and advice the claimants on how to invest the settlement proceeds in profitable ways. These may be rewarding to the businesses through increases in the client bases, networking and even increasing the market value of the businesses.

The Law and the Treaty of Waitangi

It is therefore recommended to keep and observe the principles of the treaty in the work place for the benefit and productivity of the business and the local community at large

Another question for consideration is the extent to which the treaty has been incorporated into the laws of New Zealand. Just as any treaty, the Waitangi Treaty is only enforceable between the Crown and the Māori. With regards to domestic law, the application of the treaty within New Zealand depends only on the extent to which it has been domesticated (Henry, 1994). In that case, the court of Appeal has stated that though the treaty lacks definite legal status in New Zealand, to the extent of its domestication, it ought to be applied as a living document capable of fitting into new circumstances and its underlying principles are of utmost importance and must be applied to resolve relating issues.

Various legislative pieces have incorporated the treaty into their provisions (or made reference to its principles) thus making the treaty applicable in New Zealand to the extent provided for. These pieces of legislation include the treaty of Waitangi Act, the State Owned Enterprise Act, the Māori Language Act, the Education Act, and the Health and disability Services Act.

The Treaty of Waitangi Act was formulated in 1975 to set up the Waitangi Tribunal and bestowed upon in the powers to investigate legislative and executive actions that were in contravention of the treaty’s principles (Orange, 2015). The tribunal prepares reports and presents its findings to the government with proposed settlements.

The State Owned Enterprises Act of 1986 implicitly prohibits the Crown from contravening the principles of the treaty in any manner. In 1987, the Māori Council was able to commence legal action against the Crown and succeeded at preventing the transfer of state enterprises which were subject to claims.

There is also the Māori Language Act which was formulated to protect and promote the indigenous Māori language. This was enacted after the Waitangi tribunal concluded that the Crown was obligated under Article 2 of the treaty to protect and promote the language as it formed an essential part of the culture of the Māori and hence worthy the Crown’s protection. Similarly, in New Zealand Māori Council v. AG & Others [2013] NZSC, the court emphasized that the Crown has made a fundamental commitment to protect the Māori culture and that included the Māori language.

In connection to the above, the Education Act of 1989 makes it mandatory for all schools to take into consideration the Māori culture in their charters and to give instructions in the Māori languages for interested students. It is however notable that this Act only applies the treaty’s principle but makes no reference to it. Similarly, the Children, Young Persons and their Families Act of 1989 only applies the treaty’s principles and provides for the special needs of the Māori people by providing that the Social Welfare Director General must give due regard to the Māori people’s values, culture and beliefs.

Conclusion

From the foregoing discussion, the clear intention behind the enactment of the Waitangi Treaty is manifested in its letter and the principles behind the document. Although the treaty was soon criticized due to the translation discrepancies and the argument that the Māori chief did not fully comprehend its meaning, it is unquestionable that the Queen had but good intentions for New Zealand and its people.

Currently, it may be questioned why the treaty is still referred to and whether it is of any relevance to the economy of New Zealand if at all. Despite the criticism the treaty has received with regards to its relevance, the discussion above was somewhat exhaustive on why it is important to keep observing the treaty. As stated above, the court had stated that the treaty should be treated as a living document that is capable of fitting into any new circumstances in today’s world. Therefore, though it was meant for the colonial era, the treaty can be applied in the modern times to promote the principles of partnership, participation and protection within business organizations as discussed hereinabove.

Finally, it is important to note that New Zealand lack written Constitution and draws its framework from written laws, customary law and common law. The treaty, though formerly executed between the Crown and the Māori, has been handed down to successive governments which continue to enforce its principles to redress the historical injustices. Further, many legislations make reference to the treaty and apply its principles. The treaty therefore remains an informative and necessary document that must be preserved to keep the country’s heritage as a reminder of where New Zealand has come from.

Anderson, A. (1991). The chronology of colonization in New Zealand. Antiquity, 65(249), 767-795.

Barrett, M. & Connolly-Stone, K. The Treaty of Waitangi and Social Policy - Google Search. Google.com. Retrieved 2 November 2016, from https://www.google.com/search?q=THE+TREATY+OF+WAITANGI+AND+SOCIAL+POLICY&oq=THE+TREATY+OF+WAITANGI+AND+SOCIAL+POLICY&aqs=chrome.69i57.944j0j4&sourceid=chrome&ie=UTF-8

Henry, H. (1994). The Status of the Treaty as a Legal Document | Treaty Resource Centre – He Puna Mātauranga o Te Tiriti. Trc.org.nz. Retrieved 2 November 2016, from https://www.trc.org.nz/treaty_legal

Johnstone, J. (2005). Business and the Treaty of Waitangi: Unleashing the Economic Potential Retrieved from https://www.raineycollins.co.nz/files/businessthetow-unleasingeconomicpotential.pdf

Johnston, K. (2011). Treaty of Waitangi. NZL Rev., 211.

Kuntz, J. R., Naswall, K., Beckingsale, A., & Macfarlane, A. H. (2014). Capitalizing on diversity: espousal of Maori values in the workplace. The Journal of Corporate Citizenship, (55), 102-123.

New Zealand Māori Council v. AG & Others [2013] NZSC

Orange, C. (2015). The treaty of Waitangi. Bridget Williams Books.

Paine, L. S. (2003). Value shift. New York.

Palmer, M. S. (2008). The Treaty of Waitangi in New Zealand's law and constitution.

Pete, K. The Relevance of the Treaty Today (1st Ed.). Retrieved from https://nwo.org.nz/files/TheRelevanceOfTheTreatyToday-KMP.pdf

The Treaty of Waitangi Commerce Essay. (2016). Uniassignment.com. Retrieved 2 November 2016, from https://www.uniassignment.com/essay-samples/commerce/the-treaty-of-waitangi-commerce-essay.php#ftn6 

Treaty FAQs - The Treaty in brief | NZHistory, New Zealand history online. (2016). Nzhistory.net.nz. Retrieved 2 November 2016, from https://www.nzhistory.net.nz/politics/treaty/treaty-faqs#IstheTreatystillvalid

The Treaty of Waitangi. (2016). Retrieved 2 November 2016, from https://www.newzealandnow.govt.nz/living-in-nz/history-government/the-treaty-of-waitangi

Te Tiriti O Waitangi | The Treaty Of Waitangi. Retrieved 2 November 2016, from https://www.nzhistory.net.nz/files/documents/treaty-kawharau-footnotes.pdf 

Walker, R. (1989). The Treaty of Waitangi as the focus of Maori protest. Waitangi: Maori and Pakeha perspectives of the Treaty of Waitangi, 263-279.

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