Johnson v. M’Intosh, Wi Parata v. Bishop of Wellington, and the Legacy of the Doctrine of Discovery in Aotearoa-New Zealand

The presentation of the settlements process as a means for settling the grievances caused by violations of Te Tiriti o Waitangi has more problematic repercussions as well. The Treaty of Waitangi Act, which established the settlements process, limits both the scope and enforceability of possible reparations. For example, the tribunal cannot recommend the return of private land, even when that land has been proven to have been unjustly confiscated by the Crown in the first instance. Further, the settlement process has been described by many who have undergone it as a deeply harmful and traumatizing process, due to the pressure placed upon the process by the Crown, the fact that the tribunal recommendations are not enforceable, and the Crown’s self-appointment as the ultimate authority over claims of its own malfeasance. This inhibits the Crown’s ability to adequately identify and address colonial racism towards Maori. Accordingly, even though the tribunal itself performs an important function as a truth forum for colonial injustice, the settlement process itself continues to protect the power and privilege ascribed through the doctrine of discovery and to limit state accountability to the violations carried out through its application, including judicial attempts to limit the impact of Johnson v. M’intosh in Aotearoa-New Zealand.

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