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NZCPR
Guest Forum
Mike
Butler
5
February 2012
Treaty
Transparency: Settlements 1989-2012
*To
read the full TREATY TRANSPARENCY REPORT
 click
here >>>
A
settlement of the Ninety Mile Beach tribe’s complaints plus
Maori politicians posturing over proposed asset sales have
awakened interest in the on-going saga of quasi legal claims
by a handful of high profile individuals and compensation
payments by the government. Although details of Treaty of
Waitangi settlements are publicly available, information is
more accessible in our Treaty Transparency Research Report
here >>> on a spreadsheet
or in a document format - as a list of settlements to
date with links to summaries and deeds on the Office of Treaty
Settlements website.
The
spreadsheet details the settlement name, tribe size, financial
and commercial redress, cultural redress, co-governance, and
total dollar value. Also included is a grand total that is
updated as further deeds are signed.
Anybody
studying this information should be aware that the financial
value of the settlement is always greater than the dollar
amount shown because settlements include unspecified
accumulated rentals, leases for buildings, land, and
forestland, and rights of first refusal to buy surplus
properties for up to 172 years. In addition, no dollar value
has been given for the substantial number of cultural redress
properties transferred.
A
rather naive public perception is the view that these
settlements are justified because of wrongs done in the past
by the colonial government. A closer look at history reveals
that wrongs done by Maori against Maori or Moriori during the
1818-1842 period known as the Musket Wars far exceeds wrongs
done by the colonial government to Maori from 1840.
Most
are not aware that much confiscated land was returned, that
complaints bodies were set up close to the time of
confiscations to listen to grievances, and that Ngai Tahu and
Waikato-Tainui, with other tribes, have been involved in
multiple settlements over the years. (See Part 5 here >>>).
The
Waitangi Tribunal is venerated as having near mystical
qualities, but in fact it is a tribunal, and a tribunal, in
the justice system’s pecking order, is under the district
court. The Waitangi Tribunal, an expert forum, has its own
business unit and operates independently from the Justice
Department’s Tribunals Unit.
While
other tribunals, such as the Tenancy Tribunal, have specific
legislation that marks out exactly how to take every step, the
Waitangi Tribunal exists under the Treaty of Waitangi Act 1975
and its amendments, and other statutes, which give general
guidelines, allowing judges to create the rules as they go
along.
Under
the Tenancy Tribunal, for instance, any claim, such as for
rent arrears or damage, has to be backed up by proof in the
form of rent records or photos. Under the Waitangi Tribunal,
little proof is required, since it is free to receive whatever
evidence it pleases; anecdote, reminiscence, hearsay, are
acceptable.
Judge Eddie Durie was reported, in the NZ Herald on
November 17, 1999, to have said that some claimants had asked
researchers to alter findings that were unhelpful to their
cases, and others had made payment conditional upon findings
altered in their favour.
While
Waitangi Tribunal reports contain thousands of pages of
history, they are nevertheless carefully constructed
persuasive arguments in which the history is woven around
treaty principles and seven broadly defined grievances (see
Part 4 here>>>) to justify the payment of compensation.
The
Office of Treaty Settlements, which is part of the Ministry of
Justice, negotiates and implements the settlement of
historical claims, provides policy advice, and manages a
property portfolio intended for claimants to select from as
part of their eventual settlement redress.
Another
reality that is not widely understood is that the business
transacted between claimants, the Waitangi Tribunal, the
Office of Treaty Settlements, and the governing politicians of
the day, circumvents parliamentary oversight. Once the treaty
negotiations minister signs a settlement deed with a group of
claimants, it is a legally binding agreement. Since
legislation is required to release the money and action the
agreement, parliament in effect rubber stamps every
settlement.
During
public debate on the coastal area bill, people were outraged
that Treaty Negotiations Minister Chris Finlayson could
consider doing minister-to-iwi deals on rights to areas of
foreshore and seabed, but the nature of the settlement process
means that treaty negotiations ministers have been doing such
deals with tribes ever since 1989.
There
is no opportunity for public input on treaty settlements.
Similarly, the public was never directly asked whether we
agree or disagree that large amounts of compensation be paid
for grievances that allegedly took place up to 172 years ago.
No government in our little democracy can point to a date and
a time and say “we voted on this and 51 percent were in
favour therefore this is what we are doing”.
Professor
Alan Ward, who defined the grievances for the Waitangi
Tribunal in Rangahaua
Whanui – National Overview,
advocated
debate on the issues so that the public may buy into the
process. That has never happened. Remedies
for that lack of debate could involve a binding referendum on
this issue would confirm the exact extent of public support
for the process, and changing the process so that settlement
deeds are signed subject to parliamentary approval, so that
the select committee process could attract meaningful public
input.
The
spreadsheet shows that total redress agreed to and mostly paid
to February 1 this year is $2.455-billion. The Treaty
Negotiations Vote in last year’s Budget contains a
multi-year appropriation of $1.4-billion for the five-year
period 2011 to 2015. Since we listed a total of $2.079-billion
last July, if that $1.4-billion Budget appropriation were
added to our last year’s total, expected redress would reach
$3.479-billion.
An
amount of $3.479-billion is not large considering the New
Zealand government’s annual core Crown revenue is around
$61-billion and the nation’s gross domestic product is
$200-billion. But a settlement of $25-million would a huge
amount for a handful of claimants accustomed to living on very
little.
The
National-led government had an election promise of settling
all Treaty of Waitangi claims by 2014, but has since said it
would not meet that deadline. With 30 settlements completed,
16 awaiting legislation, four awaiting tribal ratification, 16
agreed but at the detailed negotiations stage, a further 15
under negotiation, and a number of others yet to be
negotiated, it is obvious that there is a long way to go.
The
$1-billion figure is controversial in the ethereal world of
treaty settlements because that is the figure that triggers
relativity clauses (based on 1994 values) in the 1995
Waikato-Tainui $170-million settlement and that of the same
amount by Ngai Tahu in 1998. Once triggered, those clauses
would provide Waikato-Tainui with 17 percent of settlements
over $1-billion and Ngai Tahu with 16 percent. The
government has agreed to make payments to maintain the real
value of Ngāi Tahu’s and Waikato-Tainui’s settlements
as a proportion of all Treaty settlements.
I
put in an Official Information Act request to the Office of
Treaty Settlements last October asking whether those
relativity clause payments had begun, and the office has
declined to answer, arguing that it would require the creation
of information that is outside the office’s purview.
That
office last September released a list shows that they regard
the settlement total as $1.027-billion, with an argument that
Waikato River settlements are not historical redress. That
total omitted the $170-million commercial fisheries
settlement, agreed in 1992. The list was in response to an
Official Information Act request for settlements since 1995.
An
assumption exists that treaty settlements would bring some
kind of economic salvation. Prime Minister Jim Bolger said at
the Ngai Tahu settlement signing on November 21, 1997, that:
“It will allow Ngai Tahu as a tribe to develop a workable
economic base and become an economic force in the South Island
and New Zealand”. But a quick look at the figures shows that
settlements are not going to solve Maori financial woes. If
total settlements of $3.5-billion were divided among an
estimated total Maori population of 673,000, each person would
receive only about $5200.
There
is little sign of interest beyond the individuals directly
involved in settlements or tribal business. Only around 50
percent of registered members are concerned enough to vote on
whether to accept settlement deals. Non-Maori are by
definition excluded from the whole process. The directors of
today’s tribal corporations have slim ancestral links to the
people who suffered up to 172 years ago. Years down the track,
these corporations will have as much benefit to non-corporate
Maori as non-Maori private businesses have to everyone not
involved.
It’s money for jam for those in the business.
*To read the full TREATY TRANSPARENCY REPORT click here>>>
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