Various Māori protest movements and successful court cases brought by Māori groups against the Crown in the late 20th century led to the emergence of increasing recognition by the state (through the introduction of a number of key pieces of legislation) that Māori filled a special place in New Zealand society as tāngata whenua (people of the land—that is, the indigenous people of New Zealand). In practice this recognition led to two main outcomes. The first was the emergence of the belief that wrongs committed against various Māori groups in the century and a half following the signing of the Treaty of Waitangi required restitution.^[3] One of the key aspects of this recognition was the creation of the Waitangi Tribunal—a quasi-judicial body. The Tribunal’s main function is to conduct inquiries and make recommendations on the basis of those inquiries for issues relating to breaches of the Treaty of Waitangi.^[4] This then was the birth of the Treaty settlement process. The second outcome of this recognition, flowing on from the first, was that government policy and legislation increasingly came to contain specific reference to Māori and Māori groups. The last decades of the 20th century thus saw a dramatic sea-change in government’s attitude to Māori that was predicated on the recognition of the continuing force of the Treaty of Waitangi and the subsequent recognition of the special status of Māori in New Zealand society. While these two processes were inter-related, I will focus in this chapter more on the issues which have flowed from the Treaty settlement process although some discussion of the broader social policy framework within which these events occurred will also be necessary.

Throughout the 1980s and 1990s the Waitangi Tribunal was kept busy with processing increasing numbers of claims. These claims spanned a wide number of issues stretching from the return of confiscated lands through to the challenging of government legislation concerning the sale and privatisation of government assets.^[5] By the mid-1990s not only had a large number of claims been successfully processed, but sizeable quantities of money and resources had also begun to be transferred back to claimants as the New Zealand government began to act on the findings of the Waitangi Tribunal. The Ngāi Tahu and Tainui claims have been the largest and most prominent of these settlements to date. Both claims involved cash settlements approaching NZ$200 million as well as the direct transfer of other resources such as land and an apology by the government for past wrongs committed. The operation of the Treaty settlement process over the last 20 years has thus seen the New Zealand government actively addressing past injustices through a process of recognition.

Paralleling the rise of the Treaty settlement process in New Zealand, the Mabo v Queensland (No 2) 1992 High Court decision in Australia established that Australian common law recognised the existence of native title. This recognition was put into practical effect with the passage of the Native Title Act 1993 (Cwlth). The recognition of native title was hailed as a great move forward in addressing the injustices of Australia’s colonial past. Referring to the principle of terra nullius in the Mabo (No 2) decision Justice Brennan argued that ‘judged by any civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned.’^[6] And, by the late 1990s, a number of positive native title determinations had been made, thereby helping to provide justice for those Aboriginal groups which had so long been denied title to their traditional lands. However, despite these initial successes in both New Zealand and Australia, trouble loomed on the horizon as the limits of the recognition offered in Australia and New Zealand to their respective indigenous peoples became clear.