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Mike Butler

Treaty Transparency: Settlements 1989-2012

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*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 Ngi 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