“The Crown unreservedly apologises for not having honoured its obligations to Tūhoe under te Tiriti o Waitangi (the Treaty of Waitangi) and profoundly regrets its failure to appropriately acknowledge and respect te mana motuhake o Tūhoe for many generations.”[1]
This was the start of the apology to the Tuhoe people, delivered by the Minister of Treaty Negotiations Chris Finlayson on behalf of the Crown last week. The agreed version of history that he outlined in his statement, however, presented a sanitised account of the historical record.
Such re-writing of history has become the norm in Treaty settlements. It follows on from the tribal fictions provided to the Waitangi Tribunal. Over time these new accounts will become ‘official’ lore. The circle will be complete once these fabrications appear in schoolbooks and new generations of school children accept them as the truth.
In his speech, the Minister mentioned a highly controversial aspect of the settlement that has troubling implications for the future of New Zealand – this is Tuhoe’s desire for ‘mana motuhake’, or self rule.
The public was given a first-hand glimpse of Tuhoe-style self-rule earlier this month through a documentary screened by Television New Zealand.[2]
You will know the case. James Takamore, of Tuhoe descent, died suddenly in Christchurch in 2007. Against the wishes of his immediate family, his body was snatched by Tuhoe relatives and buried in an unmarked grave in the Bay of Plenty.
Denise Clarke, Mr Takamore’s partner of 20 years, and their children have been fighting to have him returned home to Christchurch. There have been court cases, hostility, threats of violence, and heartache.
They have been to the High Court, the Court of Appeal, and the Supreme Court. All of the judges have found in favour of Denise Clarke, the executor of the will, having the right to determine where Mr Takamore should be buried. She wants him returned to their chosen plot in Christchurch.
In the High Court case, Justice Fogarty concluded that the collective decision-making of Tuhoe and their application of tribal tikanga, were inconsistent with the underlying principle of the common law to protect Mr Takamore’s right to individual freedom:
“In this case it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe. Under the common law he was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. This is even more so because he chose as the executor of his will his life-long partner. He has personal rights as a New Zealand subject to the benefits of the common law of New Zealand. The collective will of the Tūhoe cannot be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tuhoe tikanga.”[3]
In the Supreme Court decision, the Chief Justice focussed on the inconsistency of a tribal custom – which sanctions the use of force – with the common law of New Zealand. Tribal custom contends that, if an agreement cannot be reached, it is permissible to use force: “This essentially authorises the use of force and allows the stronger party to win.”
“…the custom in this case of allowing the taking of a body is incompatible with the proposition in our law of ‘right not might’, an application of the fundamental principle of the rule of law… the custom could not be recognised by the common law because it failed the test of reasonableness.”[4]
Notwithstanding the various legal arguments, the decision from all courts and all judges was clear – Denise Clarke has jurisdiction over the final resting place of Mr Takamore.
On August 9 2014, armed with the necessary authority, and the Police, the family turned up to repatriate Mr Takamore.
Tuhoe, objected, ordering the Police off their property. They claimed the New Zealand Police had no authority on their land: “We are the law lords – not you.”
“We rule here. Not your judges. Not your courts. Not your laws. It’s our laws here.”
One elder told the Police, “Over my dead body will you get my mokopuna. We’ve given you our direction and that’s final. The direction was for you to leave.”
The Police did leave, citing safety concerns. The planned disinterment of Mr Takamore’s body was abandoned.
As Mr Takamore’s son observed, “If you can resort to violence or be staunch enough, you can over rule the law – be your own law.”
The family have vowed to fight on.
Judge Fogarty has said that he will not allow the decisions of the Supreme Court of New Zealand to be flouted.
This conflict has implications that are far wider than the dreadful personal cost to Mr Takamore’s immediate family. It raises important questions about where government policy on Treaty settlements is taking our country.
Does Minister Finlayson really want us to embrace mana motuhake if it leads to a breakdown of law and order? Is this not why generations of previous governments have failed “to appropriately acknowledge and respect” mana motuhake? Is tribal self rule really in the national interest?
Through this Tuhoe settlement, the government is sanctioning separatism. But when it results in the bullying of Police and the disrespecting of the rule of law, is this really the future we want for New Zealand – a nation of ‘no-go’ zones, where the rule of law can no longer be guaranteed?
Since the Maori Party has been a partner in government, there is no doubt that appeasement has become the driving force of Treaty settlements. From the perspective of a government trying to bring the historic claims process to a close, to some extent this is understandable. But the problem is that these settlements are now including opportunistic demands that are well outside land compensation matters.
From the time of the introduction of historic Treaty of Waitangi claims by the Labour Government in 1985, until July 31, 2014, a total of 53 Treaty settlements have been completed. The cost is $2.52 billion, well above the $1 billion fiscal envelope promised by Treaty Minister Doug Graham when the settlement process first began.
In the pipeline, a further ten settlements worth $215 million are awaiting legislation, four groups with deeds of settlement are ready for tribal ratification, there are 13 agreements in principle, and around six groups are in negotiations.
This week’s Guest Commentator, NZCPR Research Associate Mike Butler, has outlined these details in his updated Treaty Transparency Report – see HERE. Mike began this project in 2011 in response to mounting concerns over the lack of accessible information on Treaty settlements:
“Treaty Transparency – Settlements 1989-2014 updated looks at the treaty settlements record of Prime Minister John Key’s government, as well as the full record that shows over the past 25 years $2.7-billion has been negotiated away.
“Treaty Negotiations Minister Christopher Finlayson wrote on Waitangi Day this year that National’s policy is ‘to address real grievances by reaching full and final settlements with genuine claimants in a timely fashion’. But questions remain about whether the grievances were real, the settlements final, and the claimants genuine.”
In his article, Mike reminds us about who was responsible for saddling the country with the massive liability created by this historic claims process:
“Treaty settlements as we know them go back to 1984, to a hui in Ngaruawahia when a proposal to look into historical grievances appeared. The hui put the recommendation to government and the deputy prime minister of the time, Geoffrey Palmer, said he ‘did some research on the outstanding grievances and it did not appear that looking into them would open a can of worms, which many feared. I took the view that the claims may take a decade to deal with, that it would cause some anguish but would be worth it in the end.’
“That was nearly 30 years ago. The Treaty of Waitangi Amendment Act 1985 allowed claims all the way back to 1840 and the settlement process is still going strong. A can of worms was opened. The number of grievances multiplied, from just nine in 1882 to 2,125 claims by 2009. Where did all those other complaints come from and how genuine are they?” You can read Mike’s full article by clicking HERE.
It is the co-governance arrangements favoured by the National-Maori Party government that are causing the greatest concern. These are clearly designed to give corporate iwi gold-plated race-based privileges that will ensure long term political advantage. Not only have such deals been negotiated over public resources – rivers, lakes, and even National Parks – they are now being used to undermine democracy by securing guaranteed seats on councils.
New Plymouth is a case in point. When recent attempts by local iwi to get themselves appointed onto District Council committees – with full voting rights – failed, one thwarted iwi leader labelled New Plymouth a “redneck town”.[5]
In response, the Mayor suggested that the council should introduce Maori seats, even though a similar proposal was rejected in 2011. A full council vote on the matter will be held next month on September 23.
Not to be deterred, the local iwi have turned to their Treaty settlement, using that as a way to secure influential positions on the Taranaki Regional Council. The deal will see three iwi representatives with full voting rights appointed onto each of the two most influential committees … creating a voting bloc, that should enable iwi to sway the vote.
According to the deed of settlement, “The regional council representation arrangements that have been agreed between the three iwi, the Crown and the Council provide for direct iwi representation on the Council’s two principal standing committees. The Council must appoint three iwi members to each of the relevant committees… The members will be entitled to the same remuneration and expenses as are payable to the other member of those committees.”[6]
The point is that the appointment of unelected iwi with full voting rights onto council standing committees represents a major change in the constitutional arrangements of local government democracy in the Taranaki region. That such measures could be agreed through secret deals between central and local government in collusion with iwi – without public consultation – is a disgrace. The residents and ratepayers of Taranaki should demand the right to have a say on this important matter, before the Treaty settlement is signed into law.
Iwi are clearly pushing the boundaries with their Treaty settlements. But there needs to be a reality check. They do not have superior rights to justify special appointments onto councils – just the gall to make the demands. Those councillors who are agreeing to such Treaty deals with iwi – without a mandate from the public who voted them into office – are riding roughshod over the principles of local government democracy. By selling out, they are doing their communities and the country a disservice.
THIS WEEK’S POLL ASKS:
Do you agree with the government’s support for tribal self rule?
Click HERE to see all NZCPR poll results
FOOTNOTES:
1. Christopher Finlayson, Address to Tuhoe-Crown Settlement Day in Taneatua
2. Sunday, Episode 29
3. High Court, CLARKE V TAKAMORE AND ANOR HC CHCH CIV 2007-409-001971 29 July 2009
4. Supreme Court, TAKAMORE v CLARKE SC 131/2011 18 December 2012
5. Taranaki Daily News, Giving Iwi a Say Back on Agenda
6. Office of Treaty Settlements, Deed of Settlement between Ngāruahine and the Crown