The right to development and indigenous peoples: Lessons from New Zealand

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World Development Vol. 33, No. 8, pp. 1365–1378, 2005 Ó 2005 Elsevier Ltd. All rights reserved Printed in Great Britain 0305-750X/$ - see front matter

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The Right to Development and Indigenous Peoples: Lessons from New Zealand MEREDITH GIBBS * Massey University, Palmerston North, New Zealand Summary. — Discourses surrounding the right to development have paid scant attention to its application to indigenous peoples, particularly in developed countries. This paper argues that the emerging recognition of a right to development for New Zealand’s indigenous people, the Maori, provides lessons of international significance. The New Zealand jurisprudence suggests that the right to development may apply to a wide range of resources, including both resources used traditionally by indigenous peoples and resources not known or used by indigenous peoples in traditional times. If other countries follow this interpretation, rights-based development in both developed and developing countries will be enhanced. Ó 2005 Elsevier Ltd. All rights reserved. Key words — right to development, human rights, indigenous peoples, environment, Pacific, New Zealand

1. INTRODUCTION The right to development has received international recognition as an ‘‘inalienable right of all human beings and peoples to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully recognized’’ (UN, 1986, art 1). To date, scant attention has been paid to the application of the right to development to indigenous peoples, particularly in developed countries, many of whom suffer current disadvantage and unequal access to the benefits of development as a legacy of colonization (see, for example, the Millennium Development Goals: MDG, 2003; although note UN, 2001, art 16; Commissioner for Human Rights, 2002, p. 8). Instead, much of the right to development discourse has focused on improving the enjoyment of rights by individuals and peoples of developing countries, establishing a new international economic order, and more recently, the international compacts best suited to transfer funds from developed to developing countries to provide the resources for implementing rights-based development policies (see Bunn, 2000; Chowdhury, Denters, & de Waart, 1992; Geha, 2000; MDG, 2003; Sengupta,

1999, 2000a, 2000b, 2001a, 2001b, 2002; although see also Mansell & Scott, 1994). Echoing the recognition of the right to development in international discourses, over the last 20 years, a right to development for the indigenous people of New Zealand (NZ), the Maori, has emerged in NZ legal thinking. This emerging acknowledgement is an important example of the growing recognition of the right occurring outside the main debates, and in particular, indicates the potential application of the right to indigenous peoples within developed countries. The NZ jurisprudence has arisen primarily as the Maori have increasingly asserted rights to natural resources unjustly taken in the process of colonization and as the Maori seek to ensure that natural resources no longer in their ownership or control—this * This article is based on a paper presented at the 3rd Biennial Conference of the International Development Studies Network of Aotearoa, New Zealand, ‘‘Contesting Pathways to Better Practice,’’ Massey University, December 5–7, 2002. The author would like to thank Dr. Regina Scheyvens and Dr. Donovan Storey of Massey University, Katharine Moody, and the anonymous reviewers for their comments on the manuscript. Final revision accepted: March 11, 2005.

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covers the vast majority of natural resources— are not developed without their participation in decision making and without at least some benefits of development flowing through to Maori communities. This paper argues that there is an uneven acceptance of the right to development within the NZ legal system, but that even in its most limited form, the NZ jurisprudence suggests a potentially wide application of the right for indigenous peoples. While concentrating on the legal acceptance of a right to development for the Maori, this paper highlights some of the policy tensions present in achieving rights-based resource development in NZ. This paper has five sections: In Section 2, the international recognition of the right to development is canvassed and the content of the right is briefly discussed. In Section 3, a brief overview of the NZ context is provided. Section 4 examines the emergence of a right to development for the Maori in NZ jurisprudence. Finally, in Section 5, conclusions are drawn, and pertinent lessons are suggested for the application of the right to development to other indigenous minorities.

2. THE RIGHT TO DEVELOPMENT AS A HUMAN RIGHT In 1986, the General Assembly of the United Nations (‘‘UN’’) adopted the Declaration on the Right to Development culminating ‘‘a long process of international deliberation on human rights which were perceived from the very beginning as an integrated whole of civil, political, social, and cultural rights’’ (Sengupta, 1999, para 9). With its beginnings in the Philadelphia Declaration of the International Labour Conference (1944), the Charter of the United Nations (1945), and the Universal Declaration of Human Rights (1948), the right to development: . . . unifies civil and political rights with economic, social and cultural rights into an indivisible and interdependent set of human rights and fundamental freedoms, to be enjoyed by all human beings Ôwithout distinction as to race, sex, language or religion’ (Sengupta, 1999, para 11, quoting UN, 1986; see also Bunn, 2000).

The right has been described as a ‘‘vector’’ of human rights, meaning that the development process must realize all human rights in an interdependent and integrated manner (Sengupta, 1999, para 67; Sengupta, 2002; Shaw, 1997). The furtherance of one human right in

the development process cannot be at the expense of any other right. The violation of any one of the human rights that make up the right to development—for example, the rights specified in internationally accepted texts such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR)—is a violation of the composite right to development. The right to development, therefore, concerns the process of development as much as the outcomes of development (see also Sen, 2000). The primary responsibility for implementing the right to development rests with the nation state (UN, 1986, art 3). National governments must create the conditions for realizing the right through the formulation of appropriate policies at the national and international levels (Sengupta, 1999, 2000a; UN, 1986, arts 2&8, 4, 10). Implementing the right to development involves ‘‘the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free, and meaningful participation in development and in the fair distribution of the benefits resulting therefrom’’ (UN, 1986, art 2). 1 It also ensures ‘‘equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment, and the fair distribution of income’’ and includes ‘‘appropriate economic and social reforms’’, ‘‘eradicating all social injustices’’ (UN, 1986, art 8). With its focus on equity and justice, the right to development proposes ‘‘a qualitatively different approach’’ to the traditional focus of development on growth in output and material wealth (Sengupta, 1999, para 53). The kind of development required by the right to development is well captured by Sen’s concept of development as the expansion of the enjoyment of substantive freedoms and of capabilities of persons to live the kind of lives they value (Sen, 2000; and see Sengupta, 1999, paras 55&56 citing Sen, 1977, 1984, 1995; and also Mansell & Scott, 1994). The right to development, as a process of development, has also been described as an application of the Rawlsian Difference Principles ‘‘that require maximizing the advantage of the worst-off, no matter how that affects the advantage of all others’’ (Rawls, 1971; Sengupta, 1999, para 31; see also Sen, 2000). In this vein, the UN’s Second Working Group on the Right to Development recommended that ‘‘States should take measures to ensure that poor and vulnerable groups, including . . . indig-

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enous people . . . have access to productive assets such as land, credit, and means for self-employment’’ (cited in Sengupta, 1999, para 15). Although there is a debate about the application of human rights to groups, the right to development expressly recognizes the right of ‘‘all peoples,’’ as well as ‘‘every human person,’’ to share equitably in the process and the fruits of development (UN, 1986, art 1). The argument that indigenous peoples, as collectives rather than as individuals, should enjoy the right to development is persuasive. For indigenous peoples, dispossessed of their lands and resources by the processes of colonization, the recognition of their rights to traditional lands and resources (on an equitable basis taking into account the needs of all inhabitants) is crucial to achieving equal opportunity and for their development as indigenous peoples. Without an economic or resource base, these groups will become further alienated from ongoing developments. While a vast majority of nation states adopted the 1986 Declaration on the Right to Development, 2 political consensus was not achieved until the 1993 World Conference on Human Rights held at Vienna and has been confirmed at more recent global gatherings (Sengupta, 1999, para 12; Sengupta, 2000b). 3 Sengupta, Independent Expert on the Right to Development appointed by the UN Commission on Human Rights, claims that as a result of this consensus ‘‘all Governments [are obliged] to treat the right to development as a human right in all their dealings and transactions’’ (1999, para 19) and that the right confers ‘‘a claim on national and international resources’’ (Sengupta, 1999, para 20; see also Sengupta, 2000a, 2000b). While the 1986 Declaration does not give the right to development the status of enforceable international law, Sengupta (1999, para 23) argues that the right’s lack of legal enforceability ‘‘does not detract from the [moral] responsibility of States, individuals, and other agencies to realize the right to development.’’ It is not the purpose of this paper to explore the exact legal status of the right to development in international law (see Alston, 1992; Bunn, 2000; Carty, 1992; Mansell & Scott, 1994; Rich, 1992; Sengupta, 2000b; Shaw, 1997; Umozurike, 1998). Instead, this paper now briefly outlines the NZ context in which the right to development has been given a degree of legal recognition in NZ domestic law, before examining in detail the emerging NZ jurisprudence on the right to development for the Maori as a distinct people.

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3. THE NZ CONTEXT: THE MAORI AND THE TREATY OF WAITANGI Of Polynesian origin, the Maori first arrived in the previously uninhabited islands of NZ approximately 800 years ago (King, 2003). They settled and prospered, establishing tribal territories across the length and breadth of the islands. While early encounters with whalers, sealers, and traders were mixed, it was not long before the Maori established peaceful trading relations with the newcomers. Largescale settlement of NZ did not occur until after 1840 when the islands became a British colony following the signing of the Treaty of Waitangi by Maori chiefs (rangatira) and representatives of the British Crown, Queen Victoria. Almost as soon as the ink on the Treaty was dry (the settlers had already started arriving), Maori claims of injustice and breaches of the Treaty began as the British Crown (and later the Crown in right of NZ) continually failed to observe the promises of the Treaty of Waitangi (Gibbs, 2002; King, 2003; Walker, 1990). Consisting of only a preamble and three articles, the Treaty appears as a simple, short document. However, its precise meaning and application continues to be the subject of intense public debate. It was signed in both English and Maori languages (with many Maori chiefs only signing a Maori version) where the English version is not a direct, or accurate, translation of the Maori version. Significantly, in the English version of the Treaty, Maori chiefs ceded full ‘‘sovereignty’’ to the British Crown, but in the Maori version, only ‘‘kawanatanga,’’ most often translated as ‘‘governance,’’ was ceded (Biggs, 1989). From the perspectives of the Maori chiefs, ‘‘kawanatanga’’ would not have had connotations of sovereignty (Walker, 1990), and thus, it seems probable that the Maori chiefs did not think that they were ceding sovereignty or chieftainship to the British. Moreover, in exchange for ceding ‘‘kawanatanga’’ or ‘‘sovereignty’’ (depending on which version of the Treaty one is relying), Article II of the Treaty reserved to Maori ‘‘tino rangatiratanga,’’ their chieftainship, over their lands, homes, and other ‘‘taonga,’’ or ‘‘valuable possessions and attributes, concrete or abstract’’ (Biggs, 1989, p. 308). In the English version, this was worded as reserving to the Maori chiefs their ‘‘full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries, and other properties which they may

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collectively or individually possess so long as it is their wish and desire to retain the same in their possession’’. From a Maori perspective, the reservation of chieftainship, ‘‘tino rangatiratanga,’’ in Article II would have equated to a guarantee of tribal sovereignty (Walker, 1990). Accordingly, Maori would likely have understood the Treaty as guaranteeing to the chiefs their sovereignty over their tribal lands in return for ceding a limited power of governance to the British. This crucial tension between the grant of ‘‘sovereignty’’ to the Crown in Article I (English version) and the retention of ‘‘tino rangatiratanga’’ by the Maori chiefs in Article II of the Treaty (Maori version) is at the heart of the contemporary NZ polemic concerning Maori rights to natural resources and the current process of settling historical land grievances. However, for much of New Zealand’s history, this debate was moot: Until 1975, the Treaty of Waitangi was regarded legally as ‘‘a simple nullity’’ (Wi Parata v The Bishop of Wellington). The settlement of NZ proceeded under the assumption of absolute Crown sovereignty (see Brookfield, 1999; McHugh, 1999) establishing in NZ a common law system and a political structure based on the British Westminster model. The Maori fared better than many indigenous peoples during colonization, with some recognition of Maori rights (e.g., under the Native Land Acts, the Native Rights Act 1865, the Maori Representation Act 1867, and the Native Schools Act 1867). Further, because the Maori were given the same citizenship rights as others in NZ under Article III of the Treaty, at least in theory, the Maori as individuals have always enjoyed rights to development. But at the same time as recognizing some Maori rights, the Crown repeatedly breached the Treaty of Waitangi. This led to dispossession, poverty, and ongoing disadvantage for the majority of the Maori (see Ward, 1997). The last 30 years have seen something of a change in the tide of history in NZ race relations (although see Lashley, 2000) with a growing recognition of the Treaty of Waitangi, both legally and politically. Pivotal in this process was the establishment of the Waitangi Tribunal. In response to decades of sustained and increasing Maori protest concerning the unjust expropriation of their lands and ongoing Maori disadvantage (Walker, 1990), in 1975, the NZ Government passed the Treaty of Waitangi Act. This Act established the Waitangi Tribu-

nal, a permanent commission of inquiry within the Department of Justice, to investigate acts and omissions of the Crown (in practice the NZ government of the day) 4 and to determine their consistency with principles derived from the articles of the Treaty (Boast, 1993; Durie & Orr, 1990; Treaty of Waitangi Act 1975, s5). In tandem with the New Zealand courts, the Waitangi Tribunal has played a key role in interpreting the Treaty and defining the principles of the Treaty of Waitangi. The principles are derived from the articles of the Treaty itself and are based on an understanding ‘‘that the Treaty is to be always speaking—it is to be made relevant to our times’’ (WT, 1987a, p. 82). In brief, the principles of the Treaty include: the Treaty implies a partnership between the Maori and the Crown characterized by a duty to act in good faith and cooperation; the right of the Crown to govern is subject to a duty of active protection of Maori interests, and in particular, ‘‘tino rangatiratanga’’ (Maori chieftainship) over resources and taonga (treasures), but is not unreasonably restricted; and the Crown has a duty to remedy past breaches of the Treaty. 5 These principles have become the standard of just conduct between the NZ Government and its Maori Treaty partners (Gibbs, 2002). With the introduction into legislation of requirements for decision makers in key areas (such as environmental decision making) to take into account the principles of the Treaty at all times, 6 Maori people have made some gains in participation in decision making affecting their lives, lands, and development. Moreover, the Waitangi Tribunal was given power to make (usually nonbinding) recommendations to resolve well-founded Maori claims against the NZ Crown. 7 The Waitangi Tribunal has issued close to 80 reports dealing with both historical and contemporary claims of injustice and breaches of the Treaty against the NZ Crown. Following on from the Tribunals’ reports, the NZ Crown and Maori tribes have entered into, or are in the process of negotiating, close to 30 settlements of historical claims against the Crown (OTS, 2003). These settlements have proceeded under the rubric of being ‘‘full and final’’ settlements of all historical claims, at first within a fixed fiscal envelope and now notionally so. While these settlements have not provided full financial restitution for the economic losses of Maori tribes, the settlements have provided substantial sums of money and land which have been used to great effect by some (but by no means all) tribes

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to establish secure economic bases (see, for example, Gibbs, 2002). Despite having achieved some degree of political power and autonomy, the Maori as a group remain one of the most disadvantaged within NZ. Although some rangatira (chiefly) families prospered over time and current levels of professional achievement by some Maori individuals are exceptional (e.g., in law and accounting), on average, Maori people experience significantly poorer educational outcomes, higher unemployment, lower levels of income, lower rates of home ownership, and poorer health than Pakeha (non-Maori New Zealanders, primarily of European descent) (Lashley, 2000; Race Relations Conciliator, 1982; Statistics NZ, 2001; Spoonley, 1988; TPK, 2000, 2001). Maori represent approximately 15% of the current NZ population, yet Maori land accounts for only 6% of NZ’s total landmass, with that figure dropping to a mere 0.5% in the South Island of NZ (OTS, 2002). Maori economic development lags behind that of other groups within NZ. Generally, the involvement of the Maori in the economy tends to be as workers and consumers, rather than as owners, entrepreneurs, or managers, although the Maori are increasingly being recognized as a successful entrepreneurial group in NZ (Statistics NZ, 2001). Within this context of general disadvantage, the Maori, usually as tribal groups, have asserted a ‘‘right to development’’ as a right protected by the Treaty of Waitangi. Although the discourse of a ‘‘right to development’’ in NZ is clothed in the language of the Treaty, Rishworth (2003, p. 279) suggests New Zealand ‘‘would probably be having much the same sorts of debates . . . even if there were no Treaty of Waitangi. They would arise under the rubric of human rights’’. The Treaty of Waitangi gives these debates greater traction than would otherwise be the case by providing a definite framework for the conceptualization and actualization of rights for the Maori as the indigenous people of NZ. As will be shown in the next section of this paper, the framework of the Treaty has provided a solid foundation for the emergence of a Maori right to development. 4. THE RIGHT TO DEVELOPMENT IN NZ: AN EMERGING JURISPRUDENCE The acceptance of a right to development for the Maori under the Treaty of Waitangi has

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emerged in two areas: (1) in the reports of the Waitangi Tribunal and (2) in the decisions of the NZ courts. This section shows that the Waitangi Tribunal has progressively recognized the following three levels of the right to development (taken from WT, 1999, p. 30): —A right to develop resources that Maori used in a traditional manner in 1840 (when the Treaty of Waitangi was signed) (‘‘the first level’’). —A right to develop resources not known in 1840 in partnership with the Crown (‘‘the second level’’). —A right of Maori to develop as a people (‘‘the third level’’). The New Zealand courts, in contrast, have taken a more limited view of the right and its application. While the decisions of the NZ courts provide binding law, the Tribunal’s reports discussed here are recommendatory only. The Tribunal’s jurisprudence is, however, still influential, both legally (often being referred to, and sometimes adopted, in court decisions) and politically (often prompting policy development). (a) The Waitangi Tribunal’s early reports: an acceptance of the first level right The idea of a right to development protected under the Treaty of Waitangi has its roots in the early Waitangi Tribunal reports of the 1980s. 8 For example, in 1983, the Tribunal said that the Treaty is a document ‘‘capable of a measure of adaptation to meet new and changing circumstances’’ (WT, 1989, p. 52). It is ‘‘more than an affirmation of existing rights’’ and is ‘‘not intended to fossilise the status quo, but to provide direction for future growth and development’’ (WT, 1989, p. 52). 9 In 1987, the Tribunal referred to the principle of ‘‘mutual benefit’’ ‘‘whereby both parties expected to gain from the Treaty: Maori from new technologies and markets, non-Maori from the acquisition of settlement rights, and both from the succession of sovereignty to a supervisory State power’’ (Hayward, 1997, p. 489). In 1988, the Waitangi Tribunal specifically referred to a Treaty ‘‘development right’’ for the first time. Following on from the UN Declaration on the Right to Development in 1986, in its Muriwhenua Fishing Claim Report, the Tribunal asserted that ‘‘[i]t is the inherent right of all people to develop and progress in all areas’’ and argued that ‘‘[a] treaty that denied a development right to Maori would not have

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been signed’’ (WT, 1988, p. 116). In relation to the historical fishing claim before it, the Tribunal held: ‘‘The Treaty does not prohibit or limit any specific manner, method or purpose of taking fish, or prevent the tribes from utilising improvements in techniques, methods or gear’’ (quoted with approval in WT, 1992, p. 234). The right to development included the right to expand fishing into areas not fished traditionally, as a result of adopting new technologies. It encompassed development of either or both customary and commercial fishing. The Tribunal reinforced these views in the Ngai Tahu Sea Fisheries Report in 1992 adding that expansion of fishing into offshore or deepwater fisheries, and therefore to species not traditionally fished or possibly known about in 1840, was part of the right to development (WT, 1992). In 1993, the Tribunal was called upon to examine the Treaty development right in the context of a claim to generate electricity from geothermal resources (WT, 1993a). The Tribunal found that the geothermal resources in question were taonga or traditional treasures of the claimants and had been used in a traditional manner in 1840. As with fisheries, such resources clearly fell within the protections of Article II of the Treaty and therefore, the right of development applied to the geothermal resource and extended to the right to generate electricity from it (WT, 1993a, p. 22). The Tribunal found that ‘‘the claimants’ interest in the [geothermal] resource is not confined by the traditional or pre-Treaty technology or needs, but . . . includes the development of the resource for economic benefit and by modern technology’’ (WT, 1993a, p. 34). The Tribunal left open the issue of whether the right to development could be an exclusive right, suggesting that exclusivity would depend on ‘‘the nature and extent of the particular resource and the development sought’’ (WT, 1993a, p. 23). The Tribunal held that the Maori claimants, who owned a substantial amount of the land overlying the geothermal resource, had a right to develop the geothermal resource underlying their land and should be given priority in the granting of the required environmental consent to utilize the geothermal resource generally in their tribal area (WT, 1993a, p. 23). In Te Ika Whenua Rivers Report (WT, 1998a), the Waitangi Tribunal reaffirmed the first level right to development, namely, the right to develop resources (taonga) used traditionally in 1840 (WT, 1998a, p. 120). The claim

concerned, in part, the right to develop the claimant’s rivers for generating electricity. The Tribunal held that as in 1840, Te Ika Whenua had a ‘‘right of full and unrestricted use and control of the waters [of their rivers]—while they were within their rohe [tribal area]’’ (WT, 1998a, p. 124). This was property guaranteed protection under Article II of the Treaty (WT, 1998a, p. 126). The Tribunal stated: . . . the Tribunal has, over a number of years, consistently upheld the principle that the Treaty did not simply preserve the status quo at 1840 but that it must be adapted to meet changing needs and circumstances—in other words, it must allow a right of development. This Tribunal firmly supports the principle that the rights to property and taonga preserved and guaranteed under the Treaty included a right to development and that this right extended to Te Ika Whenua in the case of its rivers (WT, 1998a, p. 121).

The Tribunal expressly agreed with the Court of Appeal’s decision in Te Runanganui o Te Ika Whenua Inc Society v A-G (discussed further below) that the Treaty had not ‘‘preserved or assured to [Maori] any right to generate electricity by the use of water power’’ (WT, 1998a, p. 128, emphasis added). However, Te Ika Whenua had a right to the full use and development of its rivers, which are a taonga of the tribe, utilizing new technologies and methods (WT, 1998a, p. 128). The Tribunal indicated that such use and development of taonga might include generating electricity, echoing its findings in Te Arawa Representative Geothermal Resource Claims (WT, 1993a). The Tribunal held that the tribe’s right to develop its interest in its rivers was not exclusive. The changing circumstances of the settlement of New Zealand and ‘‘the general contemplation under the Treaty that there would be a sharing of the resources upon which settlement depended, have led to a reduction of Te Ika Whenua’s proprietary interest’’ in its rivers (WT, 1998a, p. 126). The Treaty requires the Crown to ‘‘ensure that its [Maori] Treaty partner is able to partake fully in that process [development]’’ (WT, 1998a, p. 129), and this may involve some sort of priority for Maori development of traditional resources, at least where they have retained a substantial interest in the resource. These Tribunal findings indicate a clear acceptance of the first level of the right to development, namely that the right applies to resources used traditionally by the Maori in 1840. The right to development extends to the use of new technologies and methods, and as

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a result of these advances, to utilize a traditional resource in new ways and in expanded geographical areas. These views have been reinforced in later Tribunal reports (see, for example, WT, 1999, p. 41; WT, 2002, pp. 64–65; WT, 2004). (b) The NZ courts: tentative steps toward the second level right A Maori right to development has arisen before the NZ courts on only a few occasions. In 1989, the NZ Court of Appeal indirectly considered the right in Tainui Maori Trust Board v A-G, a case arising out of the privatization of the NZ coal industry. The Court was required to decide whether the transfer of Crown land in Tainui’s tribal area (in the central North Island) to third parties, and the right to mine coal to Coalcorp (a state-owned enterprise), was contrary to the principles of the Treaty of Waitangi. The Crown had acquired much of the relevant land in the 1860s unjustly in breach of the Treaty. In the course of the decision, the Court held that coal could be ‘‘classified as a form of taonga [treasure protected by the Treaty]’’ (at 529). Maori people had used coal in a limited way prior to 1840 and had made a significant contribution to the coal industry post 1840. Further, coal was a natural asset of Tainui’s traditional lands. However, since the coal industry was primarily a result of non-Maori endeavors, the Court suggested that in any negotiated settlement of Tainui’s historical claims against the Crown, the tribe would be ‘‘entitled to the equivalent of a substantial proportion but still considerably less than half of this particular resource’’ (at 529). The Court did not use the language of a ‘‘right to development,’’ most probably because the case was not argued in this way. However, the Court’s comments suggest its acceptance of at least the first level of the right to development, namely the right to develop resources used traditionally by Maoris in 1840. The right to development arose, again somewhat indirectly and also as a result of the NZ Government’s privatization policies, in Te Runanganui o Te Ika Whenua Inc Society v A-G. 10 This time the case concerned the legality of Government policy concerning the transfer to third parties of certain dams used for generating electricity. The dams were situated on rivers in the appellant’s traditional territory and over which the tribe had outstanding Waitangi Tribunal claims. As a result, the Court of Appeal

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was required to consider whether the appellants had a right to generate electricity. It held: . . . however liberally Maori customary title and treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power. Such a suggestion would have been far outside the contemplation of [those signing the Treaty] in 1840 (at 24, per Cooke P).

The Court of Appeal reiterated the idea that Treaty rights only apply to things in the contemplation of the parties when signing the Treaty in Ngai Tahu Maori Trust Board v Director General of Conservation. This case concerned the issuing of whale watching permits by the Director of Conservation 11 that would allow another company to compete with an established Ngai Tahu (a tribe of the South Island) whale-watching business. The Court held that a ‘‘right of development of indigenous rights is indeed coming to be recognised in international jurisprudence’’ albeit ‘‘not necessarily exclusive of other persons or other interests’’ (at 560). Reiterating its previous views, the Court held that because ‘‘tourism and whale watching are remote from anything in fact contemplated by the original parties to the treaty’’, ‘‘Ngai Tahu’s claim to a veto must be rejected’’ (at 560). Neither tourism nor commercial whale watching were considered to be taonga or part of the enjoyment of a fishery ‘‘within the contemplation of the treaty’’ (at 560). Ngai Tahu had used whales for food and bones but did not assert any ownership over whales. Notably, the case did not turn on any right to develop the whales themselves. However, the Court of Appeal held that Ngai Tahu’s whale-watching business was ‘‘so linked to taonga and fisheries’’ that the principles of the Treaty were relevant to the Director General’s decision whether or not to grant another party a permit to undertake commercial whale watching (at 560). The Court stated that more than consultation with the tribe would be required and that ‘‘[a] period of complete protection [from competition] sufficient to justify the development expenditure incurred by Ngai Tahu may be’’ appropriate (at 560). In summary, the Court of Appeal has not accepted an unfettered or uncontested tribal right to develop natural resources within traditional tribal areas particularly where the exercise would impinge upon the rights of others to a fair share of resources. 12 Further, the High Court of NZ has held that the Treaty right to

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development does not apply to a resource that was not in existence in New Zealand in 1840, for example, introduced trout (Taranaki Fish & Game Council v McRitchie). The Court of Appeal has accepted, however, that the Treaty principles may require that Maori development of their taonga or traditional resources, together with resources ‘‘analogous’’ or closely linked to taonga, be given a degree of priority. 13 This indicates acceptance of a Treaty development right at the first level and hints toward acceptance of the right at the second level, namely, a right to develop resources not known about in 1840 in partnership with the Crown. In the cases discussed, the contemporary circumstances and the Crown’s proper exercise of kawanatanga (government) were held to limit any exclusivity of the right. Maori development of such resources would properly take place in partnership with the Crown and may be restricted by laws to protect the environment, for example. 14 (c) Recent Waitangi Tribunal findings: acceptance of the right at all three levels More recent Waitangi Tribunal’s reports clearly confirm a Maori right to development, with the Tribunal extending its acceptance of the right to all three levels, namely (1) a right to develop resources that Maori used traditionally in 1840; (2) a right to develop resources not known in 1840 in partnership with the Crown; and (3) a right to develop as a people (taken from WT, 1999, p. 30). In doing so, it has opened up the possibility of the right to development affecting a very wide range of natural resources. In its Radio Spectrum Final Report 1999, the Waitangi Tribunal specifically acknowledged a Treaty right to development at all three levels for the first time. This report concerned government policy for managing part of the electromagnetic spectrum used for telecommunications and information technology such as the internet, cellular phones, video links, and video conferencing (WT, 1999). The Crown planned to sell the rights to issue licenses to generate signals in this part of the spectrum. The Maori claimants argued that the Crown’s policy would be in breach of the Treaty right to develop the electromagnetic spectrum, a taonga of the Maori, because the policy would not provide Maori people with access to a fair and equitable share of the resource (WT, 1999, p. 30). Further, the Maori claimants

specifically argued that the right to development extended to all three levels. The Tribunal reaffirmed the first level of the right to development, that is, to develop traditional resources and taonga, noting that what comprises ‘‘taonga’’ remains unsettled: While it has been generally accepted that there is a development right (which includes the use of technology unknown in 1840) for properties specified in the Treaty, such as land, forest, and fisheries, there has been little agreement over the unspecified Ôother properties’ or taonga. The Crown accepts the development right for specified properties, such as fisheries, and some taonga, such as language and culture (WT, 1999, p. 41).

The Tribunal found that the electromagnetic spectrum was also a taonga: ‘‘Maori had traditional knowledge of and used parts of the electromagnetic spectrum,’’ for example, for sight, hearing, and navigation by the stars, together with certain spiritual traditions (WT, 1999, p. 41). In line with previous decisions, the Tribunal held that the Maori have a right to develop this taonga ‘‘through technology that has subsequently become available’’ (WT, 1999, p. 42). This aspect of the Tribunal’s findings, however, goes against the Court of Appeal’s view that Treaty rights cannot apply to matters ‘‘remote from anything in fact contemplated by the original parties to the treaty’’ (Ngai Tahu Maori Trust Board v Director General of Conservation, p. 560). Presumably, the use of electromagnetic energy for telecommunications was far from the minds of those signing the Treaty in 1840. With respect, such a test must be treated with caution in the context of a right to development. Only attributing the right to develop those things that might have reasonably been in the minds of those signing the Treaty may limit the right to development (even at the first level) in a manner inconsistent with the principles of the Treaty and hamper the ability of tribes to fully participate in the development of NZ. Under this test, many contemporary developments of even commonly accepted traditional resources and taonga might well be excluded from the right to development. Having said this, in both Tainui Maori Trust Board and Ngai Tahu Maori Trust Board, the Court of Appeal commented that the spirit of the Treaty could require some kind of priority right be given to Maori development of certain resources (in the first case coal, a form of taonga, and in the second whale watching, analo-

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gous to a taonga). This suggests a limited acceptance of the second level right, namely, the development of resources not known about, or perhaps used, in 1840. In its Radio Spectrum Final Report, the Tribunal also accepted a Maori right to development at the second level, that is, to develop resources not known in 1840 in partnership with the Crown (WT, 1999, p. 42). Because the Tribunal held that the electromagnetic spectrum was a taonga used traditionally in 1840, strictly speaking, it was not necessary for it to uphold the second level of the right. More significantly, the Tribunal had no hesitation in upholding the third level of the right to development, the right of Maori to develop as a people (WT, 1999, p. 30). This was an important step because all previous findings related to resources used traditionally (e.g., fisheries, geothermal resources, and rivers) where use has been developed, extended, or expanded due to advances in technology. Here the Tribunal is saying that in addition to having rights as individual citizens of NZ (under Article III of the Treaty), and tribal rights to develop traditional resources (under Article II of the Treaty), the Maori also have a right to develop as a distinct people. The Tribunal did not elaborate on what this might mean in practice. More recently, the Waitangi Tribunal has released three further reports on key resources and in each case upheld the right to development. The first of these, The Aquaculture Report, concerned a claim by several tribes that the NZ Government’s policies to reform laws regulating aquaculture were in breach of the Treaty, and specifically in breach of their right to develop the coastal marine area. The Tribunal reaffirmed its acceptance of a right to development as a right protected under the Treaty of Waitangi and held that ‘‘Maori participation in the [aquaculture and marine farming] industry is a natural and logical progression and extension of those [coastal] practices traditionally exercised’’ (WT, 2002, p. 65). The Government’s legislative reform policies were in breach of the right to development because they would alienate the Maori from large areas of the coastal marine area, further delegate management responsibility for the allocation of coastal space to local government level where there are no direct responsibilities to honor the Treaty, and not necessarily result in increased Maori participation in the industry. In 2003, the Waitangi Tribunal once again accepted, with very little debate, the right to

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development in its Petroleum Report (WT, 2003). This claim concerned the interests of the two claimant tribes in petroleum resources located in their respective tribal areas. The issue came to a head in May 2003 when the Government announced its intention to sell its interest in a lucrative petroleum mining license (the Kupe license) in the tribal area of one of the claimants. The Tribunal accepted evidence that the tribes knew of petroleum prior to 1840 and had local legends explaining its existence. The tribes also knew that it was combustible but lacked the technology and any cultural imperative to exploit the resource. The Tribunal held that the claimants had a right to develop their land (held under customary title or otherwise) and this included the petroleum occurring in the land. This interest in petroleum included the right to exploit the resource for economic gain. 15 The Tribunal also stated: ‘‘the Maori interest may be conceptualised as a development right—a right to exploit a resource not extensively used in traditional times for new purposes not contemplated in those times’’ (WT, 2003, p. 43). Thus, the Tribunal once again confirmed the right to develop resources known about in 1840, even if not used extensively, in new ways, for new purposes and taking advantages of technological advances. The third recent Waitangi Tribunal report to uphold a Maori right to development followed the NZ Government’s release of policy concerning ownership of the foreshore and seabed. Ownership of the NZ foreshore and seabed became the subject of intense political debate following a court decision that opened up the possibility that the Maori still held customary rights to this land (WT, 2004). The Crown proposed legislation to confirm Crown ownership of the foreshore and seabed, on behalf of all New Zealanders, and to replace any existing Maori customary rights with statutory recognition of those rights, effectively extinguishing Maori property rights in the foreshore and seabed (WT, 2004). The Tribunal found that the Crown’s policy was in breach of the Treaty and upheld a Maori right to development over the foreshore and seabed (including its minerals) because the Maori had a traditional relationship and use of the foreshore and sea in 1840. Thus, in this claim, and in the preceding two, the Tribunal was only required to recognize the right to development at the first level, because the Tribunal held that the resources involved were all taonga and used traditionally in

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1840 (note that petroleum was held to form part of the land traditionally used). 5. CONCLUSIONS: A FAR-REACHING RIGHT? New Zealand’s Waitangi Tribunal has recognized a Maori right to develop traditional resources and taonga (the first level), to take part in the development of resources not known about in 1840 in partnership with the Crown (the second level), and for the Maori to develop as a people (the third level). In contrast, the NZ courts have taken a more conservative ‘‘and somewhat muted approach’’ (WT, 1998a, p. 120) suggesting only a limited acceptance of the first level right and, indirectly and even more tentatively, a partial acceptance of the second level right. Both the Tribunal and the courts have indicated that the right to development is not exclusive but is constrained by the proper exercise of the Crown’s kawanatanga (government) and contemporary circumstances. Having said this, the courts have suggested that the right extends at least to some kind of priority for Maori economic development, the extent of which will depend on the resource and the situation. It is likely to involve Maori people as owners, joint venturers, and managers, for example, rather than as mere consumers. The recognition by the Waitangi Tribunal of the electromagnetic spectrum as a taonga of the Maori suggests that, if the Tribunal’s findings are accepted, the Treaty development right may prove to be extremely far reaching, even if confined to the first level. Because the Maoris used parts of the spectrum and had a spiritual relationship with it in 1840, it was held to be taonga. The same could be argued for almost the entire natural environment of NZ. According to Maori cosmology, all of the natural world is linked by whakapapa (genealogy or descent) and was a taonga of Maori over which they exercised kaitiakitanga (guardianship). If the Treaty development right can extend to the use of taonga in new ways, taking advantage of new technologies, then the Treaty right to develop taonga could extend to almost any natural resource-based development (although not species introduced since 1840). Already the Tribunal has upheld a (nonexclusive) right 16 to develop taonga such as fisheries for economic gain, rivers, and geothermal resources to generate electricity, the electromagnetic spectrum to generate radio signals and

other telecommunications, the coastal marine area for aquaculture and marine farming, and land containing petroleum. However, neither the NZ courts nor the Government has accepted this aspect of the Tribunal’s reports. The Government did not accept that the electromagnetic spectrum was a taonga of the Maori and it rejected outright the findings of the Petroleum Report. The Tribunal’s acceptance of the right to development in relation to petroleum and the electromagnetic spectrum engendered much public debate and has, to an extent, brought the Tribunal into disrepute. Despite this, the Maori have achieved some developmental rights as a result of their claims. For example, the Government gave a pan-Maori trust $5 million (NZ) and a right to purchase a part of the electromagnetic spectrum at a discounted price. In response to the Aquaculture Report, in 2004, the Government passed legislation reserving 20% of all coastal space for use in the settlement of Maori historical grievances. But the enactment of the legislation in late 2004 confirming Crown ownership of the foreshore and seabed on behalf of all New Zealanders, and extinguishing Maori customary rights, indicates that the NZ situation remains highly contested and that the Maori must continue to fight for legal and political recognition of their right to development as tribes, and as an indigenous people. This patchy acceptance of the Tribunal’s findings reflects the fact that they are not binding and that the Tribunal’s jurisprudence is not settled. Heated debate over Maori rights to develop natural resources is likely to continue in NZ with several outstanding claims that will have a significant bearing on these issues, most significantly including a claim concerning Maori rights to all NZ indigenous fauna and flora. Further, NZ is currently experiencing a backlash against policy measures that target Maori as distinct people. Many New Zealanders believe that Maori, as equal citizens of NZ, have sufficient access to development opportunities or, at the least, the same access to opportunities as other citizens. Thus, while the Waitangi Tribunal may continue to uphold a Maori right to development at all three levels, the prospect of further political acceptance of the right at all levels is not great. At its core, the right to development as expressed in international instruments is concerned with ensuring that the ongoing process of development takes place equitably, without compromising any human rights, and advances

THE RIGHT TO DEVELOPMENT AND INDIGENOUS PEOPLES

the enjoyment of human rights by all. Its aim is to ensure that all individuals and peoples participate meaningfully in development and share equitably in the benefits of development. Although heavily clothed in the language of the Treaty of Waitangi, the right to development emerging in the NZ jurisprudence reveals a context-embedded application of this same goal. The lessons for other developed countries are clear. As Sen (2000, p. 15) points out: ‘‘The richer countries too often have deeply disadvantaged people, who lack basic opportunities of health care, or functional education, or gainful employment, or economic and social security’’. In developed countries such as Australia, Canada, New Zealand, and the United States, indigenous minorities are such ‘‘deeply disadvantaged people.’’ The emerging NZ jurisprudence reminds us that developed countries with indigenous populations must not slip into

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complacency believing that the right to development only applies to development taking place in developing countries (see Mansell & Scott, 1994). Nation states clearly have obligations within their borders to provide the necessary conditions for all of their population—including indigenous minorities—to actively participate in development and to share fairly in the benefits of development. This obligation is in addition to obligations to the wider global community, and to developing countries in particular, to assist in the realization of the right to development globally. It is not enough that indigenous peoples are able to participate in development purely as individuals relying on citizenship rights. They must also be able to develop as collectives in accordance with their indigenous traditions. The right to development imposes a duty on all nation states to provide the conditions under which this may occur.

NOTES 1. See Bunn (2000) for a survey of UN efforts to implement the right to development. 2. Passed with 146 votes in favor, six abstentions, and the USA opposing.

6. See, for example, State-Owned Enterprises Act 1986, s9; Conservation Act 1987, s4; Resource Management Act 1991, s8; Crown Minerals Act 1991, s4; Hazardous Substances and New Organisms Act 1996, s8; and the Local Government Act 2002, s4.

4. At first, the Tribunal could only examine acts and omissions of the Crown that had occurred from 1975 onwards. In 1985, the jurisdiction of the Tribunal was made retrospective allowing the Tribunal to examine Crown conduct from 1840 onwards.

7. In 1988 and 1989, the Tribunal was given powers to make binding recommendations for the return to Maori claimant groups of certain Crown lands. With increasing privatization and transfer of Crown land and assets to state-owned enterprises, Maori were concerned that culturally significant land would become unavailable for the settlement of historical Treaty claims. In response to Maori court action, the jurisdiction of the Tribunal was again amended by the Treaty of Waitangi (State Enterprises) Act 1988. In the settlement of the New Zealand Maori Council (1987) case, the Waitangi Tribunal was given powers to make binding recommendations for the return to Maori ownership of land transferred to stateowned enterprises under the State-Owned Enterprises Act 1986. Later, the Crown Forest Assets Act 1989 gave the Tribunal powers to make binding recommendations for the return of Crown forest land. The lands that may be subject to the Tribunal’s binding recommendations are Crown forest land subject to a Crown forestry license. See Treaty of Waitangi Act 1975, ss8A, 8HB & 8HJ.

5. For greater detail, see New Zealand Maori Council v A-G (1987), A-G v New Zealand Maori Council (1991), New Zealand Maori Council v A-G (1992), and see for example the following Waitangi Tribunal reports: WT (1987a, 1987b, 1991, 1996, 1998b, 1998c).

8. Kingsbury’s (1989) references to the right to development in his seminal article on the matter, and in litigation involving Maori rights, are regarded as having seeded the idea of a Maori right to development in NZ jurisprudence.

3. ‘‘The consensus was strengthened by the Rio Declaration on Environment and Development, the Cairo Declaration of the International Conference on Population and Development, the Copenhagen Declaration of the World Summit for Social Development, and the Platform for Action of the Fourth World Conference on Women held in Beijing’’ (Sengupta, 1999, para 12). To this impressive list can be added the more recent World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance held in Durban, the fourth Ministerial Conference of the World Trade Organization, Doha, and the International Conference on Financing for Development at Monterrey, Mexico.

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9. Note also the comments of Cooke P in New Zealand Maori Council v A-G (1987, p. 663): ‘‘What matters is the spirit [of the Treaty] . . . The Treaty has to be seen as an embryo rather than a fully developed and interpreted set of ideas’’. 10. The case turned on the Court of Appeal’s jurisdiction under s8 of the Judicature Amendment Act 1972 and was unsuccessful on the facts. 11. Under the Marine Mammals Protection Act 1992 and the 1992 regulations. 12. Around the same time as the Whale-watching case, the Waitangi Tribunal’s Kiwifruit Marketing Report 1995 was released (WT, 1995). The Tribunal found that the right to export kiwifruit was not a taonga. Even if it had been a taonga, the Tribunal held that it was legitimate for the government to regulate the export trade of kiwifruit. Therefore, in line with the courts, the Tribunal held that the right is not a bare right to develop and may be constrained by the Crown’s right to govern (kawanatanga).

13. Although note the Court’s express caution that this case may prove to be of limited precedent value. 14. This argument is in line with the principle that the Treaty confers in the Crown the ability to govern without ‘‘unreasonable restrictions on the right of a duly elected government to follow its chosen policy’’ (New Zealand Maori Council v A-G, 1987, pp. 665–666 per Cooke J). See also Ngai Tahu Maori Trust Board v Director General of Conservation (1995) and WT (1993b, p. 101). 15. Note that the Tribunal did not accept that petroleum itself was a taonga of Maoris, but that the tribes had a right to develop their land (itself a taonga) and the petroleum in that land. 16. Note that there will be few cases where Maoris will succeed in claiming an exclusive right to a resource (although for the case of pounamu (greenstone) see Gibbs, 2000, 2002).

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full/pasfull.nsf/web/Media+Release+2001+Census+ Snapshot+4+Maori?open. Tainui Maori Trust Board v A-G (1989). 2 NZLR 513 (CA). Taranaki Fish & Game Council v McRitchie (1998). 3 NZLR 611 (HC). Te Puni Kokiri (‘‘TPK’’) (2000). Progress towards closing social and economic gaps between Maori and non-Maori: A report to the Minister of Maori Affairs May 2000. Wellington: TPK. Te Puni Kokiri (‘‘TPK’’) (2001). Maori in New Zealand [www page]. URL http://www.tpk.govt.nz/maori/ default.asp. Te Runanganui o Te Ika Whenua Inc Society v A-G (1994). 2 NZLR 20 (CA). Umozurike, U. (1998). Human rights and development. International Social Science Journal, 50(158), 535–543. United Nations (‘‘UN’’) (1986). General Assembly Resolution 41/128 of 4 December 1986. United Nations (‘‘UN’’) (2001). General Assembly Resolution 56/150 of 19 December 2001. Waitangi Tribunal (‘‘WT’’) (1987a). The Waiheke Island claim report (Wai 10). Wellington: Government Printing Office. Waitangi Tribunal (‘‘WT’’) (1987b). The Orakei claim report (Wai 9). Wellington: Brooker and Friend Ltd. Waitangi Tribunal (‘‘WT’’) (1988). The Muriwhenua fishing claim report (Wai 22). Wellington: Government Printing Office. Waitangi Tribunal (‘‘WT’’) (1989). Report of the Waitangi Tribunal on the Motonui-Waitara claim (Wai 6). 2nd ed. Wellington: Government Printing Office. Waitangi Tribunal (‘‘WT’’) (1991). The Ngai Tahu report (Wai 27). Wellington: Brooker and Friend Ltd. Waitangi Tribunal (‘‘WT’’) (1992). The Ngai Tahu sea fisheries report (Wai 27). Wellington: Brooker and Friend Ltd. Waitangi Tribunal (‘‘WT’’) (1993a). Preliminary report on the Te Arawa representative geothermal resource claims (Wai 153). Wellington: Brooker and Friend Ltd. Waitangi Tribunal (‘‘WT’’) (1993b). The Ngawha geothermal resource report (Wai 304). Wellington: Brooker and Friend Ltd. Waitangi Tribunal (‘‘WT’’) (1995). The kiwifruit marketing report 1995 (Wai 449). Wellington: Brookers Ltd. Waitangi Tribunal (‘‘WT’’) (1996). The Taranaki report: kaupapa tuatahi (Wai 143). Wellington: GP Publications. Waitangi Tribunal (‘‘WT’’) (1998a). Te Ika Whenua rivers report (Wai 212). Wellington: GP Publications. Waitangi Tribunal (‘‘WT’’) (1998b). Te Whanganui-AOrotu report on remedies (Wai 55). Wellington: GP Publications. Waitangi Tribunal (‘‘WT’’) (1998c). The Turangi township remedies report (Wai 84). Wellington: GP Publications. Waitangi Tribunal (‘‘WT’’) (1999). The radio spectrum final report 1999 (Wai 776). Wellington: GP Publications.

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Waitangi Tribunal (‘‘WT’’) (2002). Ahu moana: The aquaculture and marine farming report (Wai 953). Wellington: Legislation Direct. Waitangi Tribunal (‘‘WT’’) (2003). The petroleum report (Wai 796). Wellington: Legislation Direct. Waitangi Tribunal (‘‘WT’’) (2004). Report on the Crown’s foreshore and seabed policy (Wai 1071). Wellington: Legislation Direct.

Walker, R. (1990). Ka whawhai tonu matou: Struggle without end. Auckland: Penguin Books. Ward, A. (1997). The national overview: Waitangi Tribunal rangahaua whanui series. Wellington: GP Publications. Wi Parata v The Bishop of Wellington (1877). 3 NZ Jur (NS) 72 (SC).