1 Transporte de nutrientes.

Being tangata whenua is as much a basis of having rights as being an individual citizen. (Sharp, 2005, p. 322)

In Aotearoa New Zealand it is the Treaty that is the primary instrument for recognising indigeneity and in particular for promoting the unique constitutional status of Māori peoples (M. H. Durie, 2002) as the indigenous peoples and prior occupants of this country before British sovereignty was proclaimed. This is not evident from the discussions thus far which demonstrate instead, that the Treaty was largely dismissed by the state.

Hayward pointed out that the courts demonstrated ―...an initial enthusiasm... for upholding native title‖ (1997, p. 475). Early operations of the colonial government were consistent with protection of hapū tino rangatiratanga and the pre-emption clause of Article II of the Treaty. However when native title and tino rangatiratanga limited the power and authority of the Crown moves to limit Māori sovereignty began to emerge. Hence, the status therefore of the Treaty under New Zealand common law has changed significantly over time. Initial attempts were made to recognise Māori sovereignty. For example, native

title was recognised in the R v Symonds 1847 case and again in The Lundon and Whitaker Claims Act 1871 where there court ruled:

The Crown is bound, both by the common law of England and by its own solemn engagements, to a full recognition of native proprietary rights. Whatever the extent of that right by established native custom appears to be, the Crown is bound to respect it.233

However, in 1877 the Treaty was defined by Chief Justice Prendergast as a simple nullity with no legal standing in the Wi Parata v Bishop of Wellington

[1877] case. In contrast, 110 years later, in 1987 the Treaty was considered an aid for the interpretation of legislation because the Treaty is ―...part of the fabric of society‖ (Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188). As a consequence of this shift ―...issues relating to indigeneity in New Zealand have hinged on the application of the Treaty of Waitangi‖ (M. H. Durie, 2002, p. 599).

The changing status of the Treaty is in part a reflection of a long history of Māori challenging the absolute authority of the Crown and the assertion that indigenous peoples have a special status within the constitution of this country. Many Māori view the Treaty as a sacred covenant (He kawanata) (Kelsey, 1990; Mutu, 2010; Orange, 2004) that ―...set out the terms and conditions under which Pākehā could settle in New Zealand‖ (Mutu, 2010, p. 36). Durie argued that the Treaty ―...was intended to guide the future development of New Zealand as a modern state‖ (M. H. Durie, 2005, p. 16). Accordingly the Treaty is a significant part of Aotearoa New Zealand constitutional history and development (Mulholland & Tawhai, 2010; Sharp, 2005; Williams, 2005). Māori have always asserted that the Treaty has a contemporary relevancy and used the Treaty as a platform for recognition of indigeneity and to facilitate expressions of tino rangatiratanga.

Between 1843-1872 challenges to Crown authority manifested as a series of conflicts referred to collectively as the New Zealand Wars (Belich, 1986; Cowan, 1923; K. Sinclair, 1957). These conflicts were essentially disputes related to recognition of authority and power (British sovereignty versus tino rangatiratanga) and securing property rights to land. Māori resistance began to manifest as a range of new forms. From the 1850s the Treaty became a tool of political movements such as the Kingitanga234 and Te Kotahitanga235 to reassert and exercise tino rangatiratanga. Māori prepared petitions to the New Zealand General Assembly and were involved in delegations to the British Queen and litigation based on provisions of the Treaty (Kelsey, 1990; R. Walker, 1990). During the 1920s Māori continued to assert tino rangatiratanga through for example the Tahupotiki Wiremu Ratana political party. Although Māori were actively involved in lobbying the state to recognise indigeneity particularly as it related to tino rangatiratanga and the Treaty, the impact on state operations was marginal (R. Walker, 1990).

233

The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41, 49.

234 _{The Kingitanga or Māori King movement emerged in the 1850s to unite Māori tribes and}

address the alienation of land from Māori ownership. The movement is based on the monarchy model (Hill, 2004; R. Walker, 1990).

235 _{Kotahitanga was another movement based on the idea of Māori unity to secure tino}

rangatiratanga. In 1879 the Te Arawa tribes hosted a meeting to establish a Māori Parliament (Hill, 2004; R. Walker, 1990).

Recognition of indigeneity by the state changed significantly during the 1970s. This period was characterised once more by protests related to tino rangatiratanga and Treaty grievances however the methods engaged were much more effective than in the past, ―...a vocal, politicised Māori contingent, encouraged by international attention to race relations, protested the Crown‘s disregard for the treaty in ways that could not easily be ignored‖ (Hayward, 2003b, p. xiv). In 1972 Ngā Tamatoa occupied parliament. In 1975 Dame Whina Cooper led the Te Matakite o Aotearoa land march from Te Hapua to Parliament. There were land occupations at Raglan Golf Course and Bastion Point, and Waitangi Day ‗celebrations‘236 were disrupted by protests. These events were part of a growing global awareness and assertion of civil rights and later indigeneity.

By 1980 these factors combined to create a political environment that was open to consideration of the contemporary relevance of the Treaty. Recognition of indigeneity and relationship of the Treaty to Crown policies and laws was a contemporary state response to the continued assertions of Māori for recognition of political power (Kelsey, 1990). Continued contestation and resistance had finally begun to affect the way that Aotearoa New Zealand was governed.