NZCPR Columnist
David Round

National's Shameful Deal With Iwi
6 December 2009 

   Our views on climate change may differ. But even if one accepts, as I do, that anthropogenic (human-induced) greenhouse gas emissions will cause changes to world climate which will be utterly catastrophic for humanity, that does not automatically imply approval of any particular political approach to solving the problem. I shall leave to others a discussion of the wisdom or otherwise of the general approach taken by our government in its very recent legislation ~ the legislation that Labour has promised to repeal when it is re-elected. I shall consider just one aspect of that legislation ~ the agreement to grant to five iwi the right to plant trees on 35,000 hectares of the public conservation estate, and receive the carbon credits which arise out of that planting.

   I am still uncertain as to the precise details of this arrangement. I have tried to get hold of the legislation from the University of Canterbury’s very fine Law Library, but it is not yet available even in electronic form. It will probably be available just after I send this column to our excellent editrix and blogess. But as I understand it from newspapers and occasional conversations, the arrangement is that these iwi will be given the right to obtain carbon credits from trees which they may plant on these 35,000 hectares. I am not certain as to whether the trees will necessarily even be native trees, or whether they may be exotics. If they are exotics, then very possibly they will be harvested. Even if native trees are planted, it is not clear whether or not they may later be felled. It may perhaps be possible for iwi to do nothing, and just claim the credits from naturally-occurring regeneration, but even if that be possible that is not to say that that is what will happen. This arrangement may possibly last for only (only!) seventy years. The public will have access to this land all the time. The public may not be all that keen on wandering through plantations, of course…

  All my criticisms below, then, may be subject to correction on the basis of the facts. At the same time, most of my objections are on matters of principle where differences of detail may well be immaterial.

   The arrangement is objectionable for numerous reasons. For a start, it amounts to a privatisation of the conservation estate. The lands which the Department of Conservation ~ DoC ~ administers are the property of us all. We love them deeply. In a land without Europe’s castles and cathedrals, museums, temples, churches, art galleries and other relics of the past, they are indeed in a very literal sense our heritage. They are our crown jewels. True, they are not all of equal value. But none are without some value. 35,000 hectares is a very large area ~ almost 90,000 acres; somewhere about 136 square miles. I would be very much surprised to learn that the public conservation estate contained that much land with little or no conservation value. I think the Department would be surprised. I have already spoken to Departmental officers who are dismayed at the idea, and simply cannot believe that the conservation estate does contain that much land of little conservation value. The estate certainly contains some areas of regenerating forest. But these forests can regenerate by themselves. They are regenerating now. As a matter of principle and conservation philosophy, wild lands should be left to natural processes. Once one starts to interfere, it is the start of a very slippery slope. Besides, nature knows best. Natural processes ensure that the native trees that eventually grow in a certain place are the ones that will do best there. No mass human planting programme can ever hope to achieve the delicacy, precision and absolute rightness of planting by wind and bird and rain. Trees grow by themselves, and those natural processes sequester carbon without any need for human planting. Indeed, once grazing is stopped on native tussockland, carbon begins to accumulate again in the soil. The control of deer, possums and other vegetarian pests can also result in a very notable increase in the amount of carbon stored in vegetation. Carbon is stored on conservation land without human planting, and that is as it should be.

   Moreover, our conservation lands are our common heritage of us all. They are not the private property of any government or political party. They are public property, and any disposal of them should be done in an absolutely open manner and be clearly for the common good. This disposal is not. It is preposterous to suggest that it is anything but a disposal. Even if it be only a right to plant trees and harvest them, without obtaining title to the land ~ even if a right just to plant trees and leave them there ~ it is still granting private persons rights over public property. A seventy year forestry lease (if that is indeed all it is) of 35,000 hectares is still a very valuable piece of property. The carbon credits for those forests, if they were left to natural regeneration, would otherwise be public property. And this disposal is not being done in a way allowed in the Conservation Act. It is being done by special legislation, a clause shoved into a bill at the last minute and becoming law without any public scrutiny. Neither is it being done for the common good. Regardless of how good the legislation may or may not be, it is highly controversial, and this forestry lease over public land is a bribe offered to one political party by its coalition partner to ensure that the bill is passed by Parliament. Our government is using the public patrimony to further narrow political interests. This is absolutely unacceptable.

   By all means let us plant trees. Even if there were no greenhouse gas issues we should be planting them. But, as I am just about to explain, there seems to be no reason why we should be giving special tree-planting privileges to Maori ~ and Maori who have already received full and final settlements. Even if there were, the place for those special private privileges is not on public land dedicated to nature.  

   The official justification for the deal is that the granting of this right to plant on the conservation estate  is no  more than compensation to the five iwi concerned, because otherwise the value of the Treaty settlements already made with them will be reduced. Those Treaty settlements included established forests planted before 1990, which are now worth less than they otherwise would be because the removal of ‘pre-1990’ forests now attracts serious financial penalties. Iwi might want, say, to convert some of their settlement forested lands to dairying or some other use. Ngai Tahu (which is to receive 30,000 of the 35,000 hectares promised) claims that 40,000 hectares of its pre-1990 forests are on land suitable for farming (read dairying). An emissions scheme which places a fierce financial penalty on the permanent removal of trees from land is therefore to their financial detriment. But iwi will be able to avoid this penalty if they can use the carbon credits from the forests they have newly planted on the conservation estate to set against the clearance of the forests they already have.

  The basis of the iwi claim is that at the time these settlements were made the Crown was well aware that penalties and restrictions might be imposed on forest owners in future. Because the Crown did not make iwi claimants aware of this the Crown was deceitful, and must compensate those iwi for the difference in value between what the forested land was believed to be worth then and what it actually is worth now when subject to strict rules about future use. Dr Nick Smith, the Minister for the Environment, has said that if such compensation were not given then the Crown could be liable for between $78 and $130 million in compensation, if these iwi were to succeed in legal action against the Crown for the erosion of their treaty settlements.

  But there is no reason, either in law or principle, why iwi should succeed. The Crown Law Office has received a legal opinion, of which more in a second, that such a claim is unlikely to succeed. But even leaving that aside, there is one very simple and obvious way in which any possible Crown liability could be avoided. That is the very familiar and commonly-used device of having in the statute a clause which declares that the Crown shall not be liable, nor any compensation payable, as a result of this law. That would be an end of the matter. Parliament is our supreme law-maker, and what Parliament says goes. For example, the Forests (West Coast Accord) Act 2000, which somewhat controversially abolished the 1986 West Coast Accord on West Coast forests, states in section 7 that ‘[n]o compensation is payable by the Crown to any person for any loss or damage arising from the enactment or operation of this [abolition].’ If Parliament were now worried about liability, it could have enacted a similar clause here. If Parliament did not worry about abolishing legal rights in 2000, why should it worry about declaring null and void a far less certain claim in 2009?

  Why indeed.

  The opinion ‘Impact of the Emissions Trading Scheme on Te Runanga O Ngai Tahu’ was prepared by Helen Aikman Q.C. and sent to the Crown Law Office on the 26^th of November. After a careful and lengthy examination of the facts her conclusion is that there was in fact no deceit on the part of the Crown, nor any misunderstanding on the part of Ngai Tahu. Well before the Ngai Tahu settlement the issue was very much in the public eye. Public consultation began early in the 1990s; there had actually been consultation with a Maori Working Group on Climate Change in 1990. (The Kyoto Protocol was signed in 1997, the year before the final Ngai Tahu settlement was enacted.) It is impossible to believe that the negotiators acting for Treaty claimants were unaware of the issue, or of the possibility that laws might be made about such things in future. It is also very hard to believe that Crown negotiators, bound to the highest standards of good faith and propriety, would have deceived claimants. They were bound by the terms of the preliminary deed with Ngai Tahu to disclose ‘all material information in a timely manner’; but all the Crown negotiators had was information already in the public arena, ‘debates about broad government and international policy, most of which was publicly known and which would affect the country as a whole’. Are any Crown negotiators in particular being accused or disciplined? I would hazard a guess that if anything, iwi negotiators were probably more aware of the issue than the Crown’s unworldly representatives.

   Moreover, no Crown negotiator could have had any idea about precisely what sort of greenhouse gas/climate change law would eventually be made by Parliament. As it happens, we now have a law which does attach penalties to tree clearance. That was certainly a possibility, but it was not preordained.  The law could have done completely different things. No official or politician a decade ago could have accurately predicted, let alone prescribed, what the shape of the law would be in 2009.    

There were only possibilities, and ‘any prudent purchaser’, Ms Aikman concluded, ‘would have to take the risk of an emissions trading scheme into account’. To put it more bluntly, suggestions of Crown deceit are absurd. 

  That is the opinion. But let us go further. The full and final settlements of the recent past are, or at least should be, just that. They are ‘full and final’. After historic claims are settled, the iwi concerned are thereafter in exactly the same position as all other New Zealanders. The Ngai Tahu Settlement Act, for example, defines Ngai Tahu claims as meaning, among other things, ‘all claims….founded on rights arising in or by the Treaty of Waitangi, the principles of the Treaty of Waitangi, statute, common law (including customary law and aboriginal title), fiduciary duty or otherwise’ and ‘arising out of or relating to any loss of interests in and, water, rivers, harbours, coastal marine areas, minerals, forests……caused by acts or omissions by or on behalf of the Crown or by or under legislation, being a loss that occurred before September the 21^st 1992….’ Section 461 declares that ‘the settlement of the Ngai Tahu claims to be effected pursuant to the deed of settlement and this Act is final, and the Crown is released and discharged in respect of those claims.’

  Do not be alarmed by the mention of a date in 1992. That was the day when the claim was lodged with the Waitangi Tribunal. It is immaterial in this discussion. The point is that Ngai Tahu made a claim, and it has been settled, and thereafter Ngai Tahu are in exactly the same position as all other New Zealanders, and equally subject to our laws. Nothing in the Treaty or the principles of the Treaty or any particular settlement gives Maori any ongoing exemption from the laws made and to be made by parliament, and that includes laws about greenhouse gas emissions. On the contrary, ‘Treaty principles’ (Maori often conveniently forget) include obligations of loyalty to the Crown and obedience to the law. Ngai Tahu has not the slightest basis, legal or moral, for any objection to being bound by the climate change law just like everyone else. Parliament’s laws are made for all of us; they bind all other land and forest owners, and there is absolutely no reason why they should not bind Maori also, who breathe the same air and live in the same climate as everyone else. By recognising this specious Maori claim we have established a precedent for Maori not just to make further claims after full and final settlements but also to claim exemption from any future law they just do not like. And so the disintegration of our country continues.

  Rod Oram made a good point in the Sunday Star-Times a couple of weeks ago. Maori are claiming an exemption from this new law because that law reduces the value of the asset they hold (just as it reduces the value of the asset held by every non-Maori forest owner). Maori want their settlements to remain of exactly the same value as they were when they were made, regardless of later legal changes. By the same token, though, Maori should also renounce the benefit of any later law which increases the value of their settlements. Will they be doing that? As Hone Harawira would say in one of his milder moments, ‘not bloody likely’.

  At some future time I shall write about section 4 of the Conservation Act. That section says that the Conservation Act itself ‘shall so be interpreted and administered as to give effect to the principles of the Treaty’. This section is often misunderstood, even by those within the Department itself, but it does not seem to have been mentioned in recent political discussions, and so I shall not mention it here. Suffice it to say that it offers no justification for the recent legislation. (Indeed, if it did justify forestry leases to Maori over the conservation estate, then the recent legislation would not be necessary.)

  This deal, then, is a shameful misuse of public property and an appalling precedent for further racial preference and exemption from the law. It also bodes ill for much more of the public conservation estate. According to Waatea News, iwi leaders who are members of a ‘Climate Change Iwi Leadership Group’ have their eyes on another 200,000 hectares of conservation land (over and above the 35,000 already mentioned) for afforestation to offset the effects of the emissions trading scheme on Maori-owned land ~ mostly, if not entirely, just ordinary long-held Maori land, not land obtained in recent Treaty settlements. They are already considering asking or blackmailing the government to give them another 780 square miles (which is what 200,000 hectares is) of the conservation estate for tree-planting and carbon credits. They are already pursuing the precedent which offers them exemption from the laws that bind the rest of us. They seek ‘compensation’ for having to obey the law. And I must say that I have my doubts as to whether even the first 35,000 hectares of conservation land, let alone the rest, will be planted in natives which will be left there forever. I would not be surprised, to put it politely, if the planted trees, exotic or even native, were logged, and that by this back-door method major logging operations were introduced to the conservation estate.

  As for the wider political repercussions, it remains to be seen how much this deal benefits either the National or Maori Party. Some within Maoridom disapprove, mostly for narrowly jealous tribal reasons.  John Key is of course keen to build a good relationship with the Maori Party as a basis for a continued coalition next time, after the next election. But at the rate he is going there may not be a next time for the National Party. National’s popularity at present is amazingly, almost unbelievably high. I cannot help but think, though, that numerous chickens, of which this issue is not the least, will soon be thinking of coming home to roost.