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Dr Muriel Newman

A gravy train of “full and final” settlements

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The debates over the place of the Treaty in our law, constitution and national life are not legal debates. Maori prefer to phrase them in legal terms, because it would do their cause no good to see their claims revealed in their greedy racist nakedness. But claims are not a matter of law. They are – I say this not as metaphor, but as actual fact – the colossal programme of confidence men, accompanied by carefully-judged doses of hard luck stories, flattery and menaces. It is highly convenient to disguise them as law, and Maori as artless lovable hard-done-by innocents, but it is not true. That is why Treaty claims will not end until we say ‘No’. – David Round (Time to Say “No!”).

According to Parliament’s website, there are only four more scheduled sitting weeks before the House rises on October 20 for the general election. While there are dozens of Treaty settlements waiting to be progressed through the House, there is only one on the Order Paper.

A few weeks ago the Minister for Treaty Settlements indicated that he might try to rush more than 20 settlement bills through Parliament as an omnibus bill before the House rises. Such a scheme would be a travesty of the democratic process since these bills collectively represent the transfer of over $450 million in taxpayer funded cash and assets – as schools, Court Houses, Police Stations and other government institutions are privatised to iwi. In addition, the right of first refusal clauses on other valuable public assets in these bills are being set at 169 years! In other words as it stands, the government is ensuring the Treaty settlement process will become an enduring legacy that will continue to drain this country over the next century and a half!

The settlement bill on the Order Paper is the Ngti Manawa and Ngti Whare Claims Settlement Bill – two settlements combined into one bill.

Ngati Manawa is a small central North Island iwi with 3,500 members. The main share of their $16 million Treaty settlement was from the major Central North Island Forest Settlement. This Bill transfers public land, forests, mountains, rivers, schools and other Crown properties to the iwi. It gives them first refusal rights over additional properties for 169 years and gives the iwi statutory control over a number of public areas including five rivers, it transfers ownership rights to 9 wahi tapu sites (from which the general public are excluded) and it forces through some place-name changes.

Significantly, the Bill introduces “co-management” arrangements that give iwi superior powers to those of the general public to sit alongside local authorities and Crown agencies in governance arrangements – in this case for the Rangitaik River.

Co-management is also the theme for the second part of the Bill. Ngati Whare is another small central North Island iwi with 3,400 members. Ngati Whare did not sign the Treaty of Waitangi! Their total settlement is also worth $16 million, again mostly from the Central North Island Forest Settlement. The Bill introduces another co-management deal, this time over Conservation land – the Whirinaki Conservation Park. In addition it transfers ownership of public land to iwi, it restricts the activities of the public on areas of importance to iwi, and it facilitates some place-name changes.

Ominously, both Deeds of Agreement on which the Bill is based include the statement that the settlement package will still allow the iwi “to pursue claims against the Crown for acts or omissions after 21 September 1992, including claims based on the continued existence of aboriginal title or customary rights.” In other words it is clear that as long as a claims process remains in place, the gravy train will continue – as each claim is settled, iwi greed will ensure that new ones are lodged. With the foreshore and seabed, and flora and fauna claims a taste of what’s to come, it is clear that the grievance juggernaut will not stop until enlightened politicians step forward and speak for the majority of New Zealanders who are saying “enough is enough”.

The only other Treaty related Bill on Parliament’s Order Paper is the Maniapoto Waipa River Bill that sets up a $29 million co-management arrangement for the Waipa River. That $29 million deal does not include the cost of cleaning up the river, nor will it be counted towards Maniapoto’s Treaty settlement – it is simply funding “sufficient to enable Maniapoto to properly engage in the co-management framework”.

The Deed of Settlement states that the Crown recognised the significance of the Waipa River to Maniapoto and quotes the following as evidence: “Waipa she is the life blood of the people. Waipa she is the life blood of the land, verily she is! Indeed she is the unfailing spring of the earth! She is the water that anoints the thymos of man to bind to the tribe the waters of life that issues forth from the lineage of the gods. She is the water that blesses the umbilical chord to ensure the health of descendants of Maniapoto. ‘Tis the water that permanently renders the knot of the navel chord secure and fast.”

That such writing is used in a legal property rights agreement in a Bill in front of Parliament and signed off by a Minister of the Crown (Chris Finlayson) is ludicrous. It highlights serious concerns about the quality of evidence on which multi-million dollar settlements are based. This is an issue raised by the former Waitangi Tribunal Chairman Sir Eddie Durie in 1999 when he outlined how some claimant groups require researchers to remove material that is unhelpful to their case or change their conclusions – as a condition of being paid; how some iwi want to keep their “evidence” away from public scrutiny by asking the Tribunal to keep it secret; and how some researchers become captured by claimants and prevented from taking a balanced view.1 In other words, truth is no longer the driving force of what has now become a corrupt settlement process.

Auckland University Associate Professor Elizabeth Rata has long warned about the corruption of the settlement process by corporate tribes and their governing elite: “Tribal wealth is based on the privatisation or proposed privatisation of considerable public resources, including land, fisheries, forests, minerals, geothermal resources, the foreshore and seabed, freshwater, and capital infrastructure. Tribal political ambitions now extend beyond the idea of a ‘partnership’ with the government – an interpretation of the Treaty that dates only to 1987 – to proposals for a constitutional arrangement.”2

Evidence of this manipulation will have been visible to anyone who studied the recent announcement of the makeup of 12-man advisory panel for the Maori Party’s forthcoming review of the constitution. More on this will be detailed by the NZCPR in the coming weeks.

The reality is that the taxpayer funded Maori grievance industry has become a massive rort on the New Zealand public. Few New Zealanders really appreciate the scale of public resources that are being appropriated to the tribal elite. From hundreds of millions of dollars of cash, to iconic buildings, mountains, lakes, rivers, coastal areas, forests, parks, farms, schools, Police Stations, Court Houses, State Houses – almost any Crown agency is up for grabs. In addition, the government is increasingly using co-management deals for valuable Crown resources such as rivers and Department of Conservation lands, which not only create an on-going taxpayer liability, but will elevate the rights of iwi above those of all other citizens. No mandate for this approach has ever been sought from the New Zealand public.

In May this year the NZCPR launched a project to make information about Treaty settlements more accessible. We were concerned that with details hard to find, the scale of the manipulation and the quantum of taxpayer liabilities are not widely appreciated. With the assistance of Mike Butler, an experienced researcher and historian, we are pleased to announce the publication of Treaty Transparency – Treaty Settlements 1989-2011, analysis and commentary, a new report by Mike that reveals the extent of the grievance handouts.

Part I of the report, Treaty Payouts Near $2.5b and Continue to Grow, is published as this week’s NZCPR Guest Commentary.

Mike has found is that while politicians and iwi continue to conveniently talk about the $1 billion ‘fiscal cap’ the total cost of settlements paid or about to be paid will shortly reach $3.4 billion, and continues to grow.

Although the $1 billion fiscal ‘cap’ has long passed, it remains relevant to Maori, as Mike explains: “The $1-billion figure is controversial in the ethereal world of treaty settlements because that is the figure that triggers ratchet clauses 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 both tribes with 17 percent of settlements over $1-billion”. Using Mikes’ figures, if the ratchet clauses are triggered, Tainui and Ngai Tahu stand to gain another $400 million, dwarfing their original settlements.

In his report Mike reminds us of the extent of government largesse over Treaty settlements by outlining what Tainui received in their original settlement: “… the $170-million total redress amount for the 1995 Waikato-Tainui Raupatu settlement includes about 200 unimproved properties, plus another 200 improved properties. The list includes a polytech campus, Waikato University campus, railway land, courthouses, Corrections property, police stations, power stations, Crown forests, CoalCorp property, ECNZ property, Ruakura AgResearch, CYPFS properties, NZ Post properties and so on, that are leased by Crown entities for 31 years.” Mike also exposes the lie of “full and final” settlements by revealing that Tainui has now received five settlements – if last year’s $100 million Waikato River settlement is included.

And as for those people who defend the claims process on the basis that they think iwi will protect – not exploit – the assets they receive, I suggest they think again. Let’s stop pretending the claims process is about mana – it’s not; it’s about money.

It will be the same with foreshore and seabed – the rhetoric about conservation and environmental protection will dominate – until the settlements are finalised when suddenly it will all be about mining rights and joint ventures with resource hungry countries. We know that will be the future, because that’s what the history of the grievance process has already revealed.

  1. Sir Eddie Durie, Ethics and Values 
  2.  Elizabeth Rata, Cambridge University Maori Education Speech