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28 June 2009 Too Much Secrecy

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On Wednesday, eight central North Island tribes will take control of 170,000 hectares of forests in the Kaingaroa region in the country’s biggest Treaty of Waitangi settlement to date. The total cost of the claim is over $400 million of taxpayers’ money. 

Maori grievances over Treaty settlements date back to 1840. In his iconic booklet The Treaty of Waitangi, written to educate the public about the Treaty, Sir Apirana Ngata explains that under Article One of the Treaty, Maori Chiefs "do absolutely cede to the Queen of England forever the Government of their lands". Under Article Two, “the Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their lands, their homes and all their possessions”. And, under Article Three, “Maori and Pakeha are equal before the Law, that is, they are to share the rights and privileges of British subjects”. In other words, the Treaty gave New Zealand a Sovereign Queen, it created private property rights, and it established equality under the law - no more and no less.[1]

Over the years, many of the Treaty related transactions between Maori and the Crown have been the subject of on-going protest and litigation. The deals were claimed to be unlawful or unfair, and any compensation provided by the government, inadequate. These grievances were often brought by the next generation of claimants, and successive Parliaments have dealt with them.

In 1975, the Kirk Labour Government decided to formalise the process for dealing with Maori grievances through the formation of the Waitangi Tribunal. While originally set up to investigate contemporary claims only, as a result of intense lobbying, the Lange Labour Government in 1985 extended the Tribunal’s jurisdiction back to 1840 in order to deal with historic claims. This paved the way for the rapid development of a professional Maori grievance industry – now estimated to be 1,000 strong.

Since 1975, some 1500 Treaty claims had been registered with the Waitangi Tribunal – that is until the previous Labour Government introduced September 1^st 2008 as the final cut-off date for historic Treaty claims, when a further 1800 claims were lodged.

Since 1990 a total of 26 historic Treaty claims have been settled. That brings the full value of the Treaty claims settled in modern times to $1,049.207 million. According to the Office of Treaty Settlements, negotiations are under way with a further 9 Iwi groups, Heads of Agreements have been reached with 16 groups for settlements worth more than $300 million, and Deeds of Settlement have been established with three groups, which are awaiting final legislation.[2]

It is revealing to look at what taxpayers are offering claimants, by examining the Deed of Settlement of one of the groups waiting for final legislation, Taranaki Whânui ki Te Upoko o Te Ika. Their claim relates back to the sale of Wellington’s Port Nicholson Block in 1839 - before the Treaty of Waitangi was signed![3]

Leading the negotiations for the 17,000 claimants were Professor Ngatata Love and Sir Paul Reeves, and representing taxpayers, was the Minister of Treaty Negotiations, Hon Michael Cullen, and his predecessors Hon Mark Burton and Hon Margaret Wilson.

The settlement agreement has three parts: an agreed historical account and Crown apology, cultural redress, and financial and commercial redress.

The cultural redress recognises “the traditional, historical, cultural and spiritual association” of the claimants within their area of interest in Wellington, enabling them to “protect and enhance the conservation values associated with these sites”. The eighteen sites include islands, lakebeds, scenic and recreation reserves, properties on Thorndon Quay and former college and school sites.

In addition, thirteen sites will be registered with a Statutory Acknowledgement, which means that the claimants to be involved in all resource consent applications. These sites include river and stream beds, coastal marine areas, the bed of the Wellington Harbour, sea and river marginal strips, the Historic Reserves of Government Buildings and Turnbull House, parks, scenic and local purpose reserves, and the Turakirae Head Scientific Reserve.

There are also Deeds of Recognition for reserves and parks, which entitle the claimants to management input, although neither these nor the Statutory Acknowledgements are exclusive – in other words more than one iwi can have similar status and involvement.

Then there are the eight place names that will be altered by the legislation, including changing the name of Mount Misery to Mount Wai-ariki, Baring Head to Orua-pouanui, and Steeple Rock to Te Aroaro-o-Kupe.    

Further, in recognition of the aspirations of the claimants to “provide for the enhanced well being, revitalisation and protection of its members”, the Crown will facilitate “access to government services and work programmes” and they will ensure that an “appropriate” Minister of the Crown will chair an annual hui.

In addition, protocols will be issued by the Ministers of Conservation, Arts, Culture and Heritage, and Fisheries, to encourage good working relationships on “matters of cultural importance”, including the writing of “letters of engagement” to Centre Port and Wellington International Airport inviting them to discuss “issues of common interest”.

The financial redress includes a cash settlement of $25.025 million, along with an additional contribution of $4.859 million to cover the costs associated with the claims process. It also provides an opportunity for the claimants to purchase Crown properties and lease them back to the Government - including the High Court, the National Library, Archives New Zealand, and Wellington Girls’ College. They have also been granted the first right of refusal to purchase all surplus Crown land in the area for the next 100 years.

While this deal is meant to settle Taranaki Whânui ki Te Upoko o Te Ika’s historic grievance, the legislation contains an opt-out clause, so that those who do not agree with this settlement can seek separate redress.[4]

Treaty settlements have been an on-going feature of Parliamentary business over the years, but what is puzzling is the number of repeat “full and final” settlements. A report prepared for the Lange Labour Government by the Justice Department’s Richard Hill in 1989 provides some interesting information.[5] For example, Parliament passed a law in 1906 to provide a “final settlement” for Ngai Tahu relating to a grievance over lands that were sold in 1848. Within a decade the grievance resurfaced and a second “full and final” settlement was eventually made on December 15^th 1944. By the late 1960s, Ngai Tahu were again agitating for a better settlement and in 1973, the Labour Government negotiated a third “full and final” settlement. Ngai Tahu’s fourth “full and final” settlement was granted in 1998 and was worth $170 million of taxpayers’ money.

The Justice Department report also contains information that raises questions about the veracity of the Waitangi Tribunal process. On page 11, the report states “In 1958 the Tuhoe (later Tuhoe-Waikaremoana) Maori Trust Board was established, upon settlement of claims relating to the Urewera for a lump sum payment of £100,000”. Yet on April 6 2009, Judge Patrick Savage, the Presiding Officer of the Waitangi Tribunal, wrote to the Minister of Maori Affairs regarding the Tuhoe’s Te Urewera claim arguing that the Crown has never compensated Tuhoe for the land they say was wrongly confiscated.[6] The figure of £100,000 that the government paid Tuhoe in 1958 in full and final settlement was never mentioned.

David Round, a law lecturer at Canterbury University and author of “Truth or Treaty?”- a book that was seriously contentious when it was released in 1998 - is this week’s NZCPR Guest Commentator. In his article “Reflections on Treaty Issues”, David describes the controversy that has surrounded Treaty issues and introduces his series of weekly columns that will appear on the NZCPR website - along with those of our other columnists - every Wednesday (see here>>>):

“The Treaty has been the instrument of righting some historic wrongs; it has also been for two decades a vehicle for claims of racial privilege and discontent. It has fostered, among some Maori and European sympathisers, a very lucrative little industry of vested interests. At the same time it has irritated many good-hearted New Zealanders. No more historic claims may be lodged; but well-meaning judges have informed us that the Treaty is a ‘living document’ always speaking to us, adaptable to every situation, and one which should be interpreted generously and not in any quibbling legalistic spirit. (It was obviously not their own assets that the judges were so casually and high-mindedly giving away.)”

He then explains what he would like to achieve through his weekly columns: “The Treaty, then, is still around. It is still capable of becoming a focus for future discontents. It would be good if it were to beckon us towards a harmonious united future, but the gloomier option is just as possible. I hope it will be useful, therefore, to provide readers, with some solid information and critical although respectful reflections on Treaty issues. What I offer will not solve the problems we will be facing in the future, but some clearing of the undergrowth may help us to see better and reduce our chances of going astray”. To read David’s article, click here >>>  

In 1994, the Bolger National Government introduced a fiscal envelope of $1 billion dollars for the settlement of all historic Treaty of Waitangi claims. Two of the bigger settlements, that of Ngai Tahu and Tainui, have relativity clauses that will automatically trigger an increase in the value of the settlements if the fiscal cap is exceeded. While the present total value of claims now over $1 billion - with many more claims in the pipeline - it is important to understand that relativity mechanisms are based on 1994 values. Taking account of interest and inflation, a settlement of $50 million in 2006/07 is equivalent to a settlement of $26 million in 1994, so there is still some way to go before the  relativity clauses could result in Iwi groups that have grown exceedingly wealthy through the generosity of successive Governments coming back to the negotiating table to ask for more.

Since the Waitangi Tribunal process does not involve advocacy on behalf of the taxpayers who foot the bill for Treaty settlements, that responsibility lies firmly with the Minister of Treaty Negotiations, the Hon Chris Finlayson, who, before entering Parliament, acted as a Treaty claims negotiator for Ngai Tahu.  

While the Treaty settlement process is an open one, in that the information is available to anyone with the time and inclination to find it, it can hardly be described as transparent. There is a huge opportunity for claimants to re-write history and to demand settlements that are excessively generous in the confines of a system which is essentially hidden from public scrutiny. Yet it is taxpayers who not only have to pay the bills, but who need to understand that many important state assets are effectively being gifted and sold off to Maori without so much as a murmur.  

This week’s poll asks: Do you believe there is a need for more transparency regarding the Treaty settlement process? Go to poll >>>    

FOOTNOTES:

1.Sir Apirana Ngata's The Treaty of Waitangi. NZCPR exclusive - click for details>>>
2.Office of Treaty Settlements, Progress of Claims3.Deed of Settlement, Taranaki Whânui ki Te Upoko o Te Ika
4.Select Committee Report, Port Nicholson Block (Taranaki Whānui ki Te Upoko o Te Ika) Claims Settlement Bill
5.Richard Hill, Settlements of Major Maori Claims in the 1940s

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