The Uluru Statement and Treaty of Waitangi: Foreign influences on the Voice

The relationship between New Zealand and its Māori people could inspire how the Indigenous Voice to Parliament operates.

As the Indigenous Voice to Parliament referendum draws closer, the greater context regarding the Uluru Statement from the Heart remains unknown to many. Parallels regarding the Uluru statement can be drawn to the Treaty of Waitangi and various Māori advisory bodies in New Zealand.

The Uluru Statement is a call to reform following the 2017 First Nations National Constitutional Convention, where over 250 delegates decided on a proposal. The statement itself is only one page long but follows extensive consultation with Indigenous communities regarding Indigenous history, which was summarised in 25 pages of background information.

Specifically, the Uluru Statement argues for a Constitutionally enshrined Voice to Parliament and a Makarrata Commission, involving voice, treaty and truth. The current referendum is about recognising Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia and establishing an Indigenous Voice to Parliament.

If successful, the Voice will be able to make representations to the Parliament and Executive Government (including ministers and government departments) on matters relating to Indigenous people. Furthermore, the Parliament will then be able to make laws subject to advice received by the Voice.

The makeup of the Voice will be legislated by the Parliament after the referendum, including how many members it will have, and how they will be appointed. This means no one particular model for the Voice will be enshrined in the Constitution, with the model and its operation able to be altered by future governments.

Old clips have emerged from Voice campaigner Noel Pearson saying, “The first precondition to a treaty is for us to have a voice” and that the Voice "[is] to negotiate such a treaty". This has led to many believing a treaty would be certain to follow the establishment of a Voice.

There is no guarantee whether the Voice would or would not be involved in the creation of a treaty, with Prime Minister Anthony Albanese claiming that the Voice will not lead to a federal treaty. Crucially, the power to make ‘representations’ only means that even if a treaty was advised, the government will not have any legal requirement to adopt the advice, as the Voice will have no ‘veto power’ over laws.

Unlike Australia, which was falsely proclaimed terra nullius, New Zealand was considered to have been legitimately occupied by the Māori people, with a system of laws and ‘tribal’ chiefdoms. Customary law at the time required occupied land could only be colonised by conquest, or agreement in a treaty. In 1831, Māori chiefs sought British protection against the French, who they saw as a threat to annex their land.

The difference between the Australian and New Zealand settlements can be summarised in Cooper v Stuart (1889), from the UK Privy Council, which said:

"There is a great difference between the case of a colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or a settled law, at the time when it was peacefully annexed to the British dominions. The colony of New South Wales belongs to the latter class".

The existence of ‘tribal chiefdoms’ in New Zealand was a form of government understood by Europeans, even if they saw the people to be less developed. A government’s job is to maintain social order, so the Europeans theorised that social order means there was an ‘established system to law’ to maintain that order.

In 1840, the Treaty of Waitangi was signed, after consultation with various Māori chiefs. It gave the Crown the sole right to buy Māori land and exercise sovereignty and governance over it – making Māori people British subjects. The issue lay in the translation of the treaty between English and Māori, which caused disagreements relating to terms of the treaty.

These ‘translation errors’ were likely intentional, and created an unfair treaty with the Māori chiefs. This was a common tactic for European colonial powers.

The Māori translation granted the Māori chiefdoms self-governance, leading to certain chiefs believing they had the right to self-determination. In reality, they had signed away any claim to sovereignty. Disputes about purchasing terms of land led to the New Zealand Land Wars. Initially minor localised disputes escalated during the 1860s as Māori resistance to Crown sovereignty spread, and unfair seizure of land continued.

The New Zealand Settlements Act 1863 gave the Crown power to gain control of any land occupied by those ‘engaged in rebellion’. This meant Māori land belonging to those in disputes with the government was often confiscated.

As the treaty is technically only an agreement, it has no independent legal status in either international law or New Zealand domestic law. Rather, many of the principles of the treaty are referred to in legislation, making them legally binding. The most prominent example of this is in the Treaty of Waitangi Act 1975.

The act establishes the Waitangi Tribunal, which investigates retrospective instances of the Crown not honoring the treaty, and unfair Māori land displacement. The Tribunal is not an official court, and therefore does not have the ability to impose legally binding judgments and is only able to make recommendations.

This occurred in 2004 after the government passed the Foreshore and Seabed Act 2004. The law granted the Crown ownership of New Zealand’s foreshore and seabed, directly overruling Ngati Apa v Attorney-General [2003], which had previously given the Māori Land Court jurisdiction to rule on whether foreshore and seabed could be considered Māori customary land.

Though the Tribunal released a highly critical report of the policy, it continued, with the government claiming the report was attempting to override parliamentary sovereignty. The law was eventually replaced by the Marine and Coastal Area (Takutai Moana) Act 2011, which vests control of New Zealand’s coastal area in no one, opposed to the Crown or Māori groups.

In the result of a successful Voice referendum, Australia may look to New Zealand for a model for the advisory body. Similar to the Waitangi Tribunal, the Voice would only be able to make recommendations and would not be able to overrule parliamentary or executive decisions.

Unlike the Voice however, as New Zealand does not have one complete constitutional document, instead relying on an ‘unwritten constitution.’ This means that the Treaty of Waitangi and the Waitangi Tribunal are only upheld by acts of parliament.

Without a written constitution like the Australian one, the New Zealand Parliament’s powers are not limited by a constitution, making Parliament the supreme law of the land, allowing it to change any law at any time, if it so desires.

In contrast, the argument put forward by the ‘Yes’ campaign is that, even though the exact structure of the Voice is left to Parliament to decide, the Constitution is a higher source of law than ordinary legislation. This means that Parliament cannot change the fundamental existence of the Voice itself.

If the Voice referendum passes, a further referendum would be needed to remove the body, whereas the Tribunal can removed via legislation.

However, while this does make the Voice theoretically more protected than the Waitangi Tribunal, from a legal perspective, changing how the Voice or Waitangi Tribunal operates is ultimately a political question, thanks to the nature of representative democracy. This makes the outcome much harder to predict.

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