Debate grows on the role of the Treaty of Waitangi in Immigration

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Venkat Raman

Venkat Raman

Auckland, October 13, 2021

                                                                                                                   Image from the Productivity Commission Report

 What is the relation between the Treaty of Waitangi and the Immigration Policy followed by successive governments since 1840, and most importantly from the latter part of the 20th Century, and more specifically since the 1970s?

According to Te Ara, the Encyclopaedia of New Zealand, the Maori Chiefs who signed the Treaty acknowledged that more immigrants would be coming to New Zealand from the United Kingdom, Europe and Australia.

“These places were named in the preamble to the treaty. Recently, some Maori have argued that they should, as treaty partners, be consulted about letting people from other countries settle in New Zealand,” it said.

New Zealand Productivity Commission in its Report on Immigration Policy published on November 8, 2021, said that debate has been growing over the role of the Treaty in Immigration, and how to reflect the Treaty in policy and law.

The Report quoted an Opinion piece by Khylee Quince, Associate Professor of Law at Auckland University of Technology published in June 2021 on the Treaty obligations related to New Zealand’s immigration policy. You can read that here.

Productivity Commission Chairman Professor Ganesh Nana has also put forth the argument of late Professor Ranginui Walker (Associate Professor of Maori Studies at the University of Auckland) in 1993 that the “original Charter for immigration into New Zealand is in the preamble of the Treaty of Waitangi.” 


In the 1920s and 1930s immigrant ships such as the Monowai brought thousands

of new settlers, almost all of them British (Photo from Te Ara)

 “A number of scholars and politicians have subsequently agreed with Walker’s characterisation of the Treaty and drawn attention to the fact that immigration policy and implementation gives no recognition of the Treaty partnership. In the past, the Crown has asserted that the Executive has sovereignty under Article 1, which includes the right to set migration policy, and has questioned whether the Executive faced a duty to consult with Maori over immigration settings,” he said.

According to Te Ara, as a colony of the British Empire, New Zealand sought the right to curb Asian immigration in the 19th Century.

“Concerned about the impact of these restrictions on its own interests in China, India and Japan, the British government refused to assent to New Zealand’s Asiatic Restriction Bill of 1896. Changes in immigration laws and regulations over the years have also highlighted the close links between immigration and economic strategies. Until 1961 (in law) and 1974 (in practice), British subjects were allowed free entry into New Zealand. Immigrants from Asia faced restrictions from the late 19th century. Entry of non-British Europeans was restricted from the early 20th century,” it said.

Dr Ganesh Nana, Chairman, The Productivity Commission (Photo Supplied)

The Encyclopaedia also said that beginning in 1974, the criteria for entry to New Zealand gradually changed from race or nationality to merit and skills.

“The Immigration Act 1987 finally eliminated both discrimination against some races and nationalities and preference for others. But the numbers of migrants and the prerequisites they had to meet remained tightly regulated.”

Dr Nana said in his Report that a working-age immigration policy that successfully makes these contributions has several important characteristics.

First, immigration policy should support and complement the generation of skills and opportunities for local residents and workers. Immigration that simply replaces or substitutes for the local supply of skills and experience will not raise the long-term levels and diversity of human capabilities, nor overall prosperity and wellbeing.

Second, policy should be flexible and adaptable to change. The sorts of skills, experience and capability needed in one period are not necessarily the same that are needed later.

Third, policy and practice should prioritise people who are most likely to make the greatest contributions to the country. The number of people who can be accommodated at any one point in time will always be limited. Given this, New Zealand should seek people who will make the largest positive impact, broadly considered across the various dimensions of wellbeing.

Fourth, policy needs to be sustainable over time, enjoying broad social licence and support.

Fifth, policy should aim to treat migrants well. This has both a practical and moral component. A country that treats its guests well is more likely to retain their capabilities and enjoy their long-term contributions, and hosts have Manaakitanga obligations towards their guests.

Sixth, decisions on Immigration Policy should aim to minimise other social or economic costs that may result. This both helps maximise the contribution of immigration and maintain its sustainability.

“These operational characteristics also have related foundations in te ao Maori. Social licence is upheld by transparent, consultative, and inclusive decision-making (Tikanga), as a way of formalising guardianship (Kaitiakitanga) and coherence (Kotahitanga),” Dr Nana said.

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