Appendix Australia and New Zealand

The pattern of British colonial dispossession and political domination in North America and southern Africa was duplicated with some variations in Australia and New Zealand. Today, a common hunger for justice and human dignity is forcing Australian Aborigines and the Māori of New Zealand onto the political arena. Without the constitutional protection enjoyed by Canada’s First Nations and South Africa’s black majority, the first peoples of Australia and New Zealand are relying on the justice system in their respective countries to support their demands for land and treaty rights.

Unlike Canada, South Africa and New Zealand – where prior occupancy of the local inhabitants was initially acknowledged – the colony of Australia was established on the doctrine of terra nullius, the belief that the land was devoid of human habitation. British settlers – so the argument went – were legally entitled to claim sovereignty and ownership over the entire continent on grounds of “first possession.” When the British flag was hoisted over the penal settlement at Sydney Cove on 17 February 1788, as many as half a million Aboriginal people, living in hundreds of tribal groups across the continent, were instantly dispossessed of their ancestral lands. In the words of Australian historian, Henry Reynolds: “From that apocalyptic moment forward they were technically trespassers on Crown land even though many of them would not see a white man for another thirty, another fifty years.… English legal witchcraft was so powerful that it had wiped out all tenure, all rights to land which had been occupied for 40,000 years, for 1,600 generations and more.”¹

As the settlers moved further into the interior, it became obvious that the land was far from empty. Against fierce resistance, local populations were forced off their land to make way for European settlement. Many died from diseases like smallpox and syphilis, hundreds were murdered outright. As Australian historian Clive Turnbull observes, “from early in the story of European contact with Aborigines, we came upon the two factors which most contributed to their hostility and ultimately to their destruction: the gratification of the lusts of the invaders and the greed for land.”² The crimes committed against indigenous Tasmanians are among the ugliest in Australian history. Although the notorious “Black Line” expedition – a human chain consisting largely of soldiers, settlers and convicts – failed in its objective to rid the island of every living aboriginal man, woman and child, very few Aborigines survived the invasion of Europeans on their shores.

While clearly fallacious, the myth that the country had been settled legitimately by right of first possession remained rooted in white Australian psyche and law until well into the twentieth century. As recently as 1971, the notion of terra nullius was upheld by the Supreme Court of Northern Territories in its first land claim case, Milirrpum v. Nabalco Pty Ltd. As in Justice McEachern’s 1987 ruling in Canada’s Delgamuukw case, the Australian court deemed that the Aborigines’ relationship to land did not constitute legal interest in property recognizable in Australian law. Some concessions were made, however, in 1976 when the commonwealth (federal) parliament enacted a law that allowed Aborigines in the Northern Territory to apply for grants to own land provided it was not required for mining for the “national interest.” Some of the southern states subsequently followed suit.

In 1988 the aboriginal peoples of Australia presented the prime minister Bob Hawke with a Statement calling for aboriginal self-management, a national system of land rights, compensation for loss of land, respect for aboriginal identity, an end to racial discrimination and the granting of full civil, economic, social and cultural rights. The Barunga Statement, which was written on bark, was eventually hung in Parliament but the government has never responded to its demands.

It was not until 1992 that indigenous Australians made any real headway towards reclaiming the land taken from them in 1788. Ed Mabo, on behalf of the people of Murray Island, made Australian legal history when he claimed ownership of ancestral territory by virtue of native title In Mabo v. Queensland, the Australian High Court ruled, by a majority of six to one, that the theory of terra nullius was inappropriate in a country which had so clearly been occupied. It also ruled that indigenous rights to land had not been extinguished by European occupation. In Justice Brennan’s words: “whether the Islanders had been colonized by settlement, cession, conquest or declaration, their title in the land had not been surrendered.”³

The Mabo decision, quickly followed by the Wik case, substantially changed the law of the land in Australia and brought Australian common law into line with the contemporary situation in other western nations, including Canada and New Zealand. In 1993, the Keating Government introduced the Native Title Act to deal with the implications of the Mabo decision. The Act set forward procedures for dealing with Native Title claims – but also retrospectively validated the interests of non-indigenous landholders. In an historic compromise, indigenous groups accepted this validation process in exchange for guaranteed rights to negotiate. In theory, these mechanisms should have made the hearing of claims more efficient. In practice, the massive level of opposition to claims by state governments and other parties, resulted in lengthy and expensive court cases. A case in point was the claim of the Yorta Yorta nation that went into appeal in 1999. The Yorta Yorta lost their claim to their ancestral territory because they did not have written proof of their aboriginal rights. As Jacqui Katona, an Australian aboriginal writer and human rights activist, points out,

By inventing the concept of native title to suit its own purposes, the Dominant Nation has us tied up in knots. On the one hand it acknowledges a past wrong, while at the same time it prevents Aboriginal people from reclaiming their land because they have been excluded from it in the first place. And because the court will not listen to their oral evidence, the legal system now decides that their rights over the country are “extinguished.”⁴

Over the past decade, the Australian government has been looking for ways to diffuse the anger of its historically disadvantaged aboriginal communities. In 1994, the commonwealth government announced “reconciliation” as a national goal, and established a Council for Aboriginal Reconciliation to suggest strategies to address the issue of indigenous rights. Attention has been focused on the forced removal of children of Aboriginal descent from their homes between 1910 and 1960. In 1997, Australia’s Human Rights and Equal Opportunities Commission held a public inquiry into what became known as the “Stolen Generations.” The Inquiry considered public and confidential evidence from hundreds of Aborigines; detailed many stories of childhood abuse and its devastating effects; and made fifty-four recommendations calling for reparation to all victims. The Commission’s Report heightened public sympathy for aboriginal rights in Australia and caused acute embarrassment to the Australian government prior to the Olympic Games in Sydney in 2000.⁵ However, the call for compensation for the damaging effects of the policy on aboriginal communities, produced minimal response from the Howard government.⁶ While Sydney’s “Sorry Day” parade in May 2000 drew an estimated crowd of two hundred thousand people, the Prime Minister, John Howard, was conspicuously absent. His refusal to deliver a formal apology to the indigenous population for their treatment at the hands of white immigrants has further alienated the aboriginal community and their supporters.⁷

In New Zealand, where British navigator James Cook established relatively cordial relations with the local inhabitants on his 1769 and 1777 visits, indigenous land rights were never in question.⁸ The New Zealand Polynesians, who had inhabited these islands for at least a thousand years before the arrival of Europeans in the 1790s, were formidable warriors but also highly skilled traders. The European sealers and whalers who established settlements along the coast – and later in the interior – were in no doubt that the country belonged to the Māori (as the local people now named themselves).⁹ Organized colonization of New Zealand began in earnest in the late 1830s when the New Zealand Company (owned by a British family) established settlements in Wellington, Nelson and New Plymouth. When the British government decided to annex New Zealand (ostensibly to protect the local people from negative European influences, especially the introduction of the musket) it hoped to do this with Māori consent. Captain William Hobson was dispatched to the Bay of Islands in 1840 and, with the help of British Resident, James Busby and Church Missionary Society missionary Henry William, drew up a treaty by which the New Zealanders themselves would cede sovereignty of their country to the British Crown.

This single treaty, the Treaty of Waitangi (1840), has dominated Māoristate relations ever since. The fact that there were two official versions of the Treaty – one in English and one in Māori – has played a critical role in the country’s history. According to the English version, both the chiefs of the United Tribes of New Zealand (established by the British Resident James Busby in 1835) and the chiefs of the independent tribes outside the Confederation “ceded their Sovereignty to Her Majesty the Queen of England.” The Māori version, when translated back into English, replaces the word “sovereignty” (mana) with “governorship” (kāwanatanga). Thus, the legal and moral validity of the Treaty hangs on the translation of the word “sovereignty.”

In his paper on the centrality of the Waitangi treaty to Māori justice, New Zealand historian R.J. Walker argues that the missionaries, who had held preliminary discussions with some of the chiefs, knew that any loss of mana was an anathema to the chiefs. As it was, there were many who refused to sign the treaty. When the northern chiefs assembled at Waitangi on 5 February 1840, at the invitation of Governor William Hobson, many spoke against it, recognizing intuitively that their sovereignty was at stake. Chief Tareha was emphatic on this point:

We, we are only the chiefs, the rulers. We will not be ruled over. What! Thou a foreigner up and I down. Thou high and I, Tarehu the great chief of the Nga Puhi tribes low! No, no, never, never.¹⁰

When Hobson arrived the following day, forty-three chiefs signed because they saw no other alternative. As each chief signed, Hobson shook their hand saying ‘He iwi tahi tātou‘ (We are now one people). The missionary W. Colenso had the task of giving out blankets and a parcel of tobacco to each chief.¹¹

After the Treaty was signed, and the pace of systematic settlement increased, the real meaning of the Treaty revealed itself in the competition for land that ensued. In June 1843 a posse of fifty armed settlers was sent out to enforce the New Zealand Company’s claim to Māori land at Warau. A new spirit of nationalism developed within the Māori community, inspired by the separatist Kotahitanga movement. In 1858 the first Māori king, Te Wherowhero was elected. The king came to symbolize mana whenua (sovereignty over the land) but the intention was to establish two parallel sovereignties, similar to the North American notion of the two-row wampum. However, Governor Gore Browne set out to crush the King movement on the grounds of “disloyalty to the Queen.” A series of land wars ensued. To pay for the wars, three million acres of land was confiscated under the New Zealand Settlement Act of 1863. In order to gain possession of the remaining sixteen million acres still in Māori hands, the Native Land Court was established in 1867. The Court functioned to transform tribal lands from communal to individual title. Those named on the title to a block of tribal land were regarded as trustees by their people, but they had the power to sell it if they wished. Beset by “land sharks and shyster lawyers,” the title holders were induced to part with their property for paltry sums. By 1960 only four million of the original sixty-six million acres of Māori land was left in their hands. As Walker puts it, the guarantees entered into by the Crown at Waitangi were “as insubstantial as mist in the noonday sun.”¹²

For all its veneer of humanitarian idealism, the colonization of New Zealand was substantially no different from any other example of nineteenth century imperialism (with the possible exception of South Africa). Hobson’s “one people” objective to amalgamate the settler and indigenous population under the same political and judicial system, failed to produce more than nominal equality in economic and social life. Although Māori people had full civil rights, the government essentially represented a white settler electorate (four Māori members of parliament represented the interests of the Māori population) who were determined to maintain their dominion over the Māori and to acquire their land on terms the Europeans considered satisfactory.¹³

To some extent, the “amalgamation” policy in New Zealand meshed with Māori aspirations. Historian Alan Ward records that, in the 1960s, many Māori leaders embraced the notion of “ambiculturalism” as well as “inclusion.” By “ambiculturalism” they meant not only the tolerance of cultural differences, as in “pluralism,” but the recognition of the validity of the two cultures and the ability of each to make creative use of the other.¹⁴ Unfortunately, self-interest on the part of the white community – the knowledge that giving Māori greater control over their land would hinder land purchasing – frustrated that approach. In Ward’s view, had some accommodation of Māori demands been made, genuine “ambiculturalism” may have been possible.¹⁵

Unlike South Africa, where the African peoples were united against a common oppressor, tribal identity prevented the Maori from acting as a pressure group commensurate with their numbers. However, by focusing on the Waitangi Treaty, some measure of unity was attained. Having appealed unsuccessfully to the British government for decades, their petition to have the Treaty ratified was finally tabled in the New Zealand Parliament in 1934. Years went by and nothing happened. The decision of the Māori Affairs Committee thirteen years later to have the Treaty reprinted and copies hung in the schools, was seen by the Māori as a hollow gesture. In 1971, the annual “celebration” of the Treaty (Waitangi Day) became the focus of radical Māori protest action. In terms very like those of Canada’s constitutional debate in the late 1970s, Ngā Tamatosa (The Young Warriors) proclaimed that unless the Treaty was ratified, Waitangi Day would be declared a day of mourning. The Tamatosa protest was supported by a submission to government by the Māori Council citing fourteen statutes which contravened the Treaty.

The journey to dignity and the restoration of Māori land rights has been long and painful. After more than a century of political, statutory, and judicial denial of the Waitangi Treaty, the chiefs still assert that they have never relinquished sovereignty over their land. To date the Treaty confers a moral and political (but not legal) obligation on the part of government – but it has never been ratified by Parliament and is therefore not enforceable in a court of law.

As in Australia and South Africa, “reconciliation” has become the operative word in dealing with the legacies of the past. In keeping with its previous cosmetic responses to Maori demands, the government established the Waitangi Tribunal in 1976 to hear Māori grievances. However, the measure was not retroactive to 1840. It was only authorized to deal with infractions dating from 1975, when the Treaty of Waitangi Act came into force. Despite these obstacles, Māori confidence in their own future has manifested itself in a new political assertiveness over the past two decades. The objective is to renegotiate their rights in a nation-state through the articles of the 1840 Treaty.