NZ Immigration Has Failed to Give Effect to Te Tiriti O Waitangi; How and Why that Should Change
BY ELIZABETH RABIYAn
I. Introduction
When considering the many areas of Aotearoa New Zealand policy and law that are influenced by the Treaty of Waitangi, immigration is not always the first topic that comes to mind. This is somewhat ironic, given that both the te Reo Māori and English versions of the Treaty are, in many ways, immigration documents. The treaties permitted Pākehā to immigrate to Aotearoa in exchange for recognition of Māori tino rangatiratanga (self-determination, power, authority). In Part II of this essay, I discuss reasons why te Tiriti o Waitangi should be the primary lens guiding immigration in Aotearoa. In Part III, I then discuss various mechanisms through which this could be attempted under our current system of government, ultimately arguing that constitutional change is needed to truly honour te Tiriti in immigration.
I note at the start of this essay that, like all people, I approach this topic with my own background and biases. I am a Pākehā / tangata Tiriti immigrant to Aotearoa from the United States. I previously worked in immigration law where I developed a strong anti-borders stance.
II. Why Immigration is Relevant to Honouring te Tiriti
Among the many reasons to uphold te Tiriti within the realm of immigration are that te Tiriti was and remains an immigration document that allowed Pākehā and tauiwi to settle here; Māori views on immigration have historically differed from those of Pākehā; and immigration policies have at times been wielded as a tool of colonisation.
A. Te Tiriti was an immigration document
Māori appear to have initially welcomed Pākehā, recognising potential benefits around trade and knowledge that Pākehā brought. Even when Pākehā were unruly and violent, Māori did not seek to expel (or deport) them. Rather, their solution was to sign te Tiriti and thus permit the Queen to interfere by controlling her own subjects.[1]
The Preamble to te Tiriti (translated from te Reo to English by Sir Hugh Kawharu) indicates that many of the Queen’s subjects were already living in Aotearoa in a state of disorder and lawlessness, with more settlers continuing to arrive. It was thus desirable to allow the Queen to establish a “kāwanatanga” government (distinguished from “tino rangatiratanga,” or authority which only Māori chiefs could hold) to manage her subjects and improve the Pākehā-Māori relationship. Article Two guarantees the Queen’s recognition of Māori tino rangatiratanga over their lands, villages, and treasures. Article Three provides for Māori rights and duties as British subjects. It can be argued that all Pākehā and tauiwi now owe their presence in Aotearoa to this pact established in te Tiriti.
B. Pākehā and Māori views on immigration historically differed
Māori had their own internal migration protocols prior to Pākehā arrival. Per AUT Dean of Law Khylee Quince, these protocols were heavily based on relationships and mutual obligations between those migrating and the local people of a territory. Furthermore, migration customs were supported by tikanga principles that included manaaki (host responsibility), aroha (love and compassion), and utu (mutuality or the social contract).[2]
Māori conceptual frameworks of migration and sovereignty may echo those of other indigenous peoples in some respects. In “Indigenous Perspectives of Immigration Policy in a Settler Country,” Harald Bauder and Rebecca Breen discuss how Western (in their case, Canadian) colonial understandings of sovereignty are based on territorial control within artificially constructed national borders, which are enforced through surveillance and militarisation. The settler state has the right to decide who enters its territory and who is seen as a legitimate member. This differs from views of sovereignty of many indigenous groups, who “acknowledge relationships and interdependencies among agents connected to land rather than abstract territory”.[3] Many indigenous perspectives on migration, as opposed to Western perspectives, fundamentally challenge the logic of highly restrictive national borders, and thus the colonial state altogether.
C. Immigration has been wielded as a tool of colonisation
Instead of respecting Māori tino rangatiratanga and norms around migration, colonists imposed their own system of immigration. This system served colonial interests by encouraging the importation of white settlers to alienate land and displace the indigenous inhabitants. Within 30 years after the signing of te Tiriti, Pākehā went from a small minority of the population to outnumbering Māori ten to one.[4] An immigration system that favours white, European, able-bodied and wealthier immigrants continues in full force today.
Immigrants of colour are often treated as expendable labour. For example, Asian immigrants have perhaps in particular been singled out for discriminatory policies. This is exemplified in the litany of anti-Chinese laws that have been passed throughout New Zealand’s history, including the Chinese Immigration Act 1881, which imposed a poll tax solely on Chinese arrivals; and the Opium Prohibition Act 1901, which empowered police to enter Chinese homes without warrants.[5] Today Asian immigrants continue to be treated as exploitable and deportable labour, with Chinese and Indian migrants making up 43% of deportations from July 2018 to August 2023.[6]
There is sometimes a narrative that immigrants and Māori are pitted against each other for resources like housing.[7] However, Khylee Quince points out that it may not necessarily be immigration itself that some Māori oppose; rather their opposition may be rooted in the racist, ableist, and exploitative ways immigration policies favour some migrants over others, which some Māori do not see as tika.[8] Writer and Law Lecturer Morgan Godfery argues that immigrants and Māori never need to be in competition with each other for political power, as the special status of Māori derives from te Tiriti and their place as tangata whenua, rather than from being the “biggest minority” group.[9] Furthermore, immigrant groups and Māori can often be connected in solidarity over similar struggles.[10] Such solidarity makes sense, as many migrants come to Aotearoa fleeing conflicts and climate change that are caused by colonial and imperialist forces similar to those that have historically oppressed Māori. This is true for Pacific Islands peoples who have been forced to seek immigration to New Zealand and Australia in the face of rising seas and increased climate disasters. Yet, groups such as Amnesty International have pointed out that the present immigration system does not acknowledge the whakapapa, or unique ancestral links, between Māori and Pasifika. [11] Honouring these links could mean facilitating and resourcing the movement of Pacific Islands peoples facing climate change-related threats.
In rectifying the historical and present harms of colonialism, it is vital to consider how indigenous views and authority over the sphere of immigration could be actualised. A more humane immigration and economic system would further ensure sufficient resources for both Māori and immigrants, rather than creating artificial scarcity through deliberate or indifferent government policies; and would seek to uphold and strengthen the ties between Māori and Pacific Islands peoples facing displacement caused by climate change.
II. How Immigration has Failed to Recognise te Tiriti and How that Could Change
This section will look at three areas where immigration could better recognise te Tiriti: through Treaty clauses in legislation; as a mandatory or relevant consideration in executive decision-making; and through greater cultural recognition. The final section will look at how a te Tiriti-based immigration system could be realised through constitutional transformation.
A. Legislation
A primary mechanism through which the Treaty is upheld is through Treaty clauses in legislation. Courts have indicated that where a Treaty clause exists, it will be applied broadly to how powers may be exercised under that statute.[12]
There is no Treaty clause in the Immigration Act 2009. However, this does not mean the Treaty could not be used as an extrinsic aid in the interpretation of the Act. The High Court in the landmark Huakina Development Trust case made it clear that “the Treaty is part of the fabric of New Zealand society” and thus the Treaty is a valuable extrinsic aid to statutory interpretation, even in statutes where the Treaty is not specifically mentioned.[13] The court further emphasised in Barton-Prescott v Director General of Social Welfare that the Treaty “must colour all matters to which it had relevance...”[14] As discussed, immigration should be seen as an area of law and life that is heavily coloured by the Treaty.
Hence, despite the lack of a Treaty clause, courts could decide to interpret the Immigration Act, as far as possible, through a Treaty-consistent lens. The addition of an explicit Treaty clause would help further ensure immigration authorities incorporated the Act into decision-making and would make this easier for courts to enforce. An explicit clause may in fact be needed, as it is not clear whether the courts have ever relied on the Treaty to interpret provisions of the Immigration Act.
There are, however, Māori voices that might caution against the desirability or ultimate effectiveness of a Treaty clause. Dr. Arama Rata, for example, raises arguments against seeking “a seat at the immigration decision-making table” when the seat available is at the helm of a “violent, imperialist border regime”.[15] While the inclusion of a Treaty clause in the Immigration Act would certainly enable and perhaps activate Māori to push for greater control over immigration, there would be inevitable limits to working within the settler colonial border state. The courts have made it clear that the application of the Treaty is subject to other restrictions and considerations in the statute.[16] Hence, any application of Treaty principles would be subject to such purposes of the Immigration Act as “the national interest, as determined by the Crown”.[17]
B. Relevant or mandatory consideration
Another way the courts could uphold the Treaty is as a relevant or mandatory consideration in discretionary decision-making by members of the executive branch, including Immigration New Zealand (INZ). Again, the Treaty could be considered relevant even in the absence of a Treaty clause in the enabling legislation.[18]
A search of case databases yielded two High Court judicial review cases that considered whether the Treaty should be applied to prevent deportation. Both cases involved an Indian man who had married a Māori woman. In Singh v Minister of Immigration (1999), Mr. Bahadur Singh was also caring for the nine year-old child of his Māori wife, who lived with them.[19] In that case, it was argued that being forced to relocate to India to remain a family unit would deprive Mr. Singh’s wife and son of their culture, whānau, language and tikanga, which were guaranteed by Article 2 of the Treaty. Tomkins J dismissed these arguments, stating “[e]ven if the Treaty of Waitangi were otherwise a valid consideration, and on that I express no conclusion, the decision not to cancel the removal order does not deprive the plaintiff's wife and son of any rights they may have under the Treaty… [I]t is for the plaintiff and his wife to decide whether she and the son go to India or remain in New Zealand.”[20]
In Singh v Minister of Immigration [2000], Mr. Dawinder Singh had an even stronger Treaty-based argument in that he was not only married to a Māori woman, but also had a biological son with her and was jointly raising her two other children. However, Robertson J applied Singh v Minister of Immigration (1999) to likewise promptly dismiss claims that deportation would be a breach of the Treaty.[21]
These cases are over 20 years old and it seems likely that courts today would be more willing to apply the Treaty as a relevant consideration in immigration cases. However, whether the Treaty could be decisive in preventing a deportation is uncertain. Additionally, the courts would be extremely unlikely in the near future to accept the argument that Māori family members are exempt entirely from requirements under the Immigration Act 2009. This can be deduced from the fact that courts have rejected arguments that other areas of Pākehā-introduced law, such as the Crimes Act 1961, should not apply to Māori.[22]
These deportation cases serve as a stark and sad example of how current immigration law impedes Māori sovereignty and decision-making over even such decisions as whether their own families can remain in lands that Māori inhabited long before Europeans. These cases are comparable to the Canadian case of Sister Juliana, a Nigerian non-status migrant, who in 2006 was adopted by Sandy Bay Ojibway First Nation. However, the Canadian state deported Sister Juliana anyway after finding that Indigenous bands do not have “the power to usurp the discretion of the Minister of Citizenship and Immigration by accepting non-residents as band members and thereby granting them permanent resident status”.[23] Although there are important differences between legal structures relating to Māori and First Nation peoples, it remains clear that European-derived immigration policies trample upon indigenous self-determination across colonial states. A Treaty-based immigration approach would certainly uphold Māori decision-making over who they choose to join their whānau and remain in their communities.
C. Cultural recognition
While aspects of Māori culture and language – such as a karakia, mihi, haka, and blessing from a kaumatua – are incorporated into the formalities of naturalisation ceremonies,[24] Māori culture is not otherwise a significant aspect of the immigration process. This could be changed by requiring newcomers to learn about tangata whenua history, culture, and language. Such requirements could have the danger of perpetuating ableist barriers and harmful power dynamics if not carefully implemented, [25] as people desperate to migrant do not always have the resources, time, or ability to devote themselves to study. However, such requirements could start to replace existing barriers that certainly perpetuate colonising and ableist hierarchies, such as English-language and acceptable standard of health tests.
In their 2022 report on immigration, Treasury New Zealand’s Productivity Commission recommended greater recognition of Māori culture in immigration practices. They suggested incorporating Māori concepts such as manaakitanga in settlement and integration policies; providing additional funding and opportunities for migrants to connect with tangata whenua, such as through events on maraes; and providing positive recognition of migrants’ efforts to learn te Reo and te Ao Māori.[26]
More profoundly, an immigration system truly based on te Tiriti would involve newcomers not pledging allegiance to the Queen or to the colonial nation-state but rather affirming their place as tangata tiriti. This would mean agreeing to uphold Māori tino rangatiratanga and committing to the ongoing process of decolonisation. Such an approach goes beyond merely acknowledging and appreciating Māori culture; it would involve embracing fundamental constitutional transformation.
D. Constitutional transformation
In 2016, the Independent Working Group on Constitutional Transformation (IWGCT) released their Matike Mai report, which was the result of 252 hui conducted between 2012 and 2015.[27] The report proposed six transformational constitutional models, which are based upon tikanga, He Whakaputanga, and te Tiriti. These models involve applying “different spheres of influence”.[28] The “rangatiratanga sphere” would be operated by Māori; the “kāwanatanga sphere” by the Crown; and the “relational sphere” by Māori and Crown working together.[29] The constitutional models proposed fall under three broad categories: (1) a tricameral system (consisting of all three spheres); (2) a bicameral system with a Parliament and iwi/hapū assembly (consisting of just the rangatiratanga and kāwanatanga spheres, but no relational sphere); and a unicameral system, in which iwi/hapū and the Crown make decisions together.[30]
The report highlighted the deep need for constitutional change. Incrementalism within the current system was not considered sufficient to give effect to tino rangatiratanga. The constitutional structure itself had to derive from te Tiriti, rather than assimilating te Tiriti into the existing Westminster system.[31]
Immigration should be under joint or full Māori authority in order to give effect to te Tiriti-based immigration practices. It would be difficult to dismantle colonialism while leaving immigration policies under colonial control (even a heavily reformed colonial control), given that borderised and militarised conceptions of land are foundational to settler-colonial notions of sovereignty.[32] Significant work would need to be done to undo a colonial mindset that operates on exclusionary immigration policies and which largely views migrants as either an expendable labour force or as “grateful refugees” permitted to enter through the largesse of Western nations.[33]
III. Conclusion
It will likely require radical change to achieve a system where immigration policies truly uphold rangatiratanga and begin to amend the harms of colonialism. In the meantime, Dr. Rata reminds us that Māori do already practice tikanga-based rangatiratanga over migration outside the Pākehā-derived parliamentary system. One example of this occurred during COVID-19 when Māori erected checkpoints in Te Tairāwhiti, Te Tai Tokerau and Taranaki to stop the spread of disease.[34]
While contemporary Māori views on immigration of course differ from person to person, it is likely that a return to more indigenous practices and authority around migration would also benefit immigrants. After all, it would be hard to argue that the current system of labour exploitation and cultural assimilation is beneficial for tauiwi.[35]
[1] Eda Tang “What would migration look like if te Tiriti o Waitangi was honoured?” (5 February 2025) The Spinoff <https://thespinoff.co.nz>.
[2] Khylee Quince “Immigration reset allows us to honour the bargain struck in te Tiriti” (26 June 2021) Stuff <https://www.stuff.co.nz>.
[3] Harald Bauder and Rebecca Breen “Indigenous Perspectives of Immigration Policy in a Settler Country” 24 Journal of International Migration and Integration (2023) 369 at 370.
[4] Quince, above n 2.
[5] Isaac Lam “Of Monsters and Migrants – A History of Asian Discrimination in New Zealand’s Immigration Legislation” (8 September 2021) Equal Justice Project <https://www.equaljusticeproject.co.nz>.
[6] Blessen Tom “Indian and Chinese nationals have topped deportation figures since 2018” (6 September 2023) Radio New Zealand <https://www.rnz.co.nz>.
[7] Giles Dexter “Te Pāti Māori apologises to refugees and migrant communities for 'harmful narratives'” (29 August 2023) Radio New Zealand <https://www.rnz.co.nz>.
[8] Quince, above n 2.
[9] Morgan Godfery “New Zealand's migrant boom is good news for Māori. It empowers us” The Guardian (online ed, 5 November 2019).
[10] Daniel Perese “Toitū te Tiriti Hīkoi: Asian community joins the fight” (13 November 2024) Te Ao Māori News <https://www.teaonews.co.nz>.
[11] Amnesty International “Navigating Injustice; Climate Displacement from the Pacific Islands of Tuvalu and Kiribati to Aotearoa New Zealand (8 October 2025) at 22–23.
[12] Kevin Hille, Carwyn Jones, and Damen Ward Treaty Law: Principles of the Treaty of Waitangi in Law and Practice (Thomas Reuters, Wellington, 2023) at 30.
[13] Huakina Development Trust v Waikato Valley Authority & Bowater [1987] 2 NZLR 188 (HC) at 210.
[14] Barton-Prescott v Director General of Social Welfare [1997] 3 NLZR 179 (HC) at 184.
[15] Arama Rata “Rangatira and immigration” (5 December 2021) E-Tangata <https://e-tangata.co.nz>.
[16] Hille, Jones, and Ward, above, no 12, at 144.
[17] Immigration Act 2009, s 3(1).
[18] Hille, Jones, and Ward, above, no 12, at 17.
[19] Singh v Minister of Immigration HC Auckland M428/99, 28 April 1999.
[20] At 12–13.
[21] Dawinder Singh v Minister of Immigration [2000] NZAR 223.
[22] Berkett v Tauranga District Court [1992] 3 NZLR 206.
[23] Sandy Bay Ojibway First Nation v. Minister of Citizenship and Immigration 2006 FC 903 (Fed. Ct., July 19, 2006) in Bauder and Breen, above n 3, at 376.
[24] Auckland Council Governance Manual at 14.6.
[25] Quince above n 2.
[26] New Zealand Productivity Commission Immigration: Fit for the Future (1 April 2022) at 83–84.
[27] He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation (Matike Mai Aotearoa, January 2016) at 7.
[28] At 9.
[29] At 9.
[30] At 104–105.
[31] At 27–29.
[32] Harald Bauder and Rebecca Breen, above n 3, at 372.
[33] At 377.
[34] Rata, above n 15.
[35] Tang, above n 1.
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