PROGRESS ON TREATY CLAIMS

  • Doug Graham
Treaty of Waitangi Negotiations

Taumarunui Cosmopolitan Club Taumarunui

Most New Zealanders accept that Maori have genuine grievances against the Crown. They are sceptical about some of the more bizarre claims. But no one can feel comfortable with:

The confiscations of millions of acres of traditional lands taken at the stroke of a pen because Maori had refused to continue selling their land to the settlers, and had had the audacity to form a collective to stand together to prevent sales. This was taken as a challenge to the authority of the Crown and justified a military invasion into their territory. Yet today it seems an entirely justified and legitimate response to the insatiable demand for their land.

Or the establishment of the Native Land Court which was designed to destroy communal ownership and instead register Maori land in only 10 owners nominated by the Court. This succeeded in making sales much more likely.

Or the fact that land was taken under the Public Works Acts for public purposes without payment of any compensation.

Or purchases made by the Crown where the Crown simply welched on the deal and either paid a pittance or nothing at all, or failed to set aside areas for the Maori owners as agreed, or included areas in the survey which had never been included in the sale in the first place.

Or the review of pre-1840 sales, often claimed by speculators to be hundreds of thousands of acres, where the Crown, on confirming a sale, gave a title to the buyer of about 2750 acres maximum and then, instead of returning what was left to the Maori sellers, kept it without paying anything for it.
These examples have been proved beyond any doubt and the end result was that by 1900 most Maori had become landless, impoverished and marginalised. That these matters have not been addressed coherently before now is a disgrace. After all the Crown had entered into the Treaty of Waitangi and the Crown's obligations under it had been accepted by Maori in good faith. They were soon to become disillusioned. Indeed the Government thought the Treaty was a nullity for many decades.

I am not suggesting that everything done was bad, or that Maori themselves should not carry some of the responsibility for their ultimate plight. Some Maori sold their lands and were paid more than once, and some leaders failed to acknowledge that the proceeds were held on trust for the iwi rather than for themselves alone.

Nor am I suggesting that the present generation of non Maori should feel 'guilt' for what happened so long ago. We weren't there at the time, but we have benefited indirectly in that the Government's ill gotten gains at the expense of Maori have been enjoyed by successive generations of New Zealanders. So we have a duty to put things right if we can.

We are not alone in all of this. Australians and Canadians in particular are doing much the same at the present time. Can anyone really believe that harmony and the peaceful development of the country is possible when 15% of the population feel deeply aggrieved and left out? I hope not. So something has to be done. The question is what?

That is the question the Government has spent so much time on over the last 6 years and I want to talk to you tonight about what has happened in that time, where we are at today and what the future holds.

It has to be understood that Maori had been here for 1000 years before us. They had a well developed societal structure, well understood the need for ecological and environmental considerations and no doubt would have happily carried on had the ships not arrived with settlers from Europe imbued with quite different cultural backgrounds and understandings. And of course many came in the belief that land had been bought for them and simply awaited their occupation. So there was an inevitable clash of cultures, of attitudes, of hopes and aspirations. Inevitably these differences would merge over time to some extent but quite why it was decided that Maori culture and traditions would have to be submerged in the European model is hard to understand. It may well have been thought it was in their best interests, but today that seems totally arrogant. But that is what occurred, at least until the last decade or two.

In 1991 the Government decided to act to address the grievances. Not only was it the right thing to do (albeit long delayed), but the Court of Appeal and the reports from the Waitangi Tribunal had given the Government little choice. Parliament had enacted laws which referred to ``the principles of the Treaty'' and had left it to the Courts to determine what those principles were and what obligations the Crown assumed under the Treaty. This the Courts began to do with some enthusiasm. No longer could the issue be ignored in the hope that it would all go away.

When we began certain obstacles to progress quickly became apparent.

On the Crown side we had no policies at all. Earlier attempts to address claims had been on an ad hoc basis with no real comprehension of the totality of the problem. We had little idea how to address 500-600 individual claims. Where do you begin? If you successfully resolve the first one what effect would that have on the others? Wouldn't we create precedents we would have to follow later? In other words how could we treat each claim on its merits yet follow the precedents already set. On the other hand we could not sit back and wait for every claim to be fully researched before beginning to address those which were ready to be negotiated. That would have been unfair and may well have encouraged those claimants to elect some other form of action. Of course when working out what to do with the first claim, we had to decide what redress the Crown could provide. It could only be Crown or Government assets and not privately owned land or other assets. But which Crown assets? Many of them were held for and used by the public at large and had been for a very long time. What is more those properties had been nurtured and developed using taxes collected from everyone. The conservation estate is one such asset held for the public and indeed extensively used by the public. Would it be proper simply to return those properties to Maori from whom it had been taken?

Then there were natural resources such as rivers, lakes, harbours and other resources such oil, gas and geothermal activities over which the Crown had assumed control in the national interest. Ostensibly they had come into Crown control to ensure their controlled utilisation particularly as many of the resources were capable of being lost through over use. What could be done with these? Often they were in the middle of the confiscated lands. And what about customary rights to fishing which are guaranteed by various statutes today. And what about those physical features such as mountains which have a spiritual importance to Maori? How could we resolve historical traditional interests of great importance to Maori with the needs of all New Zealanders today?

How could we stop the Government selling Crown lands which were surplus to requirements but which were likely to form an essential part of a redress package? There may be little Crown land left in a given claim area which makes any settlement more difficult. And of course from a structural point of view the 'Crown' consists of a number of Departments and Ministries with different aims. The Treasury exists to ensure fiscal and monetary policy is responsible. The Dept of Conservation is tasked with preserving our heritage. The Ministry of the Environment has different goals yet again. So all this had to be brought together to a common view. Clearly there was much to be worked through before the Crown could achieve anything.

But all was not well on the Maori side either. Most iwi know and feel deeply the grievances which have been handed down from generation to generation. Indeed they live the grievances. But they had little idea how to resolve them which is hardly surprising because they had largely despaired of anyone ever addressing them. And where some thought had been given to possible solutions there was no agreed position across all Maori. With each iwi claiming autonomy, what one might accept as fair may not be acceptable to another. So again, settling the first claim in one form may or may not work in other negotiations. A greater problem was that over the years Maori structures had broken down with many iwi members moving to the cities leaving a leadership vacuum back at the marae. Few hapu had up-to-date records of their members. If a settlement was to be reached a substantial majority of all iwi members would be required to agree, but where were they? Another difficulty was that most claims related to historical tribal lands but these lands were claimed by other iwi as well. How could the Crown know with whom to negotiate? Who was the proper claimant and who were their correct representatives?

Even within the iwi some hapu held one view while other hapu another. Some want to know what the settlement will mean for their hapu before the negotiations even begin. While perhaps understandable, it is hardly helpful to argue how the cake is to be divided before there is any cake.

So there was much to be done on their side as well. The fact that we seem to have made good progress reflects the remarkable amount of goodwill on both sides and the effort put in by each.

In December 1994 the Government published a booklet which set out some proposals as to how settlements might be reached and on what basis. It had taken a great deal of deep thought by various departments. We attended a number of hui to answer questions. These 'fiscal envelope hui' as they became known were character building. Maori rejected the proposals outright and took the opportunity to tell the Crown representatives just what effect the events of the last century had had on them. It was incredibly emotional and, for the Crown attendees, a very sobering experience. But this was essential if there was to be any sort of reconciliation. Any fond belief that the problem would go away if we continued to ignore it would have been dashed by every one privileg ed to have listened to the cries from the heart expressed on those highly charged days. Many Maori believed that the proposals should have been developed with them before any publication but I do not believe that would have been possible. No one iwi will agree with another on the approach and none would agree to have another bind them to some common approach. We would have been going for years. So I think we were right to do this and we did listen and study carefully all the submissions we received and indeed amended some of the proposals as a result.

From the Crown's point of view we had to try to plan for what clearly was going to be an expensive exercise. Any government has to act in the best interests of all New Zealanders and you will be aware there is an almost insatiable demand in every area for more and more government funding. Education and health are amongst the more expensive. No government will be enthusiastic about embarking on a course of action without knowing where it will eventually end up. So we had to try to assess what the value of all the settlements might be, and what could realistically be afforded. This was a very difficult and sensitive task as you can imagine. The Crown was going to decide how much it would be prepared to set aside. The defendant was determining the damages he was prepared to pay. But how else could it be done when there were 500 to 600 claimants many with differing views ? No claimant would permit another iwi to decide what a settlement for them should be.

Many claims had not then been researched. The grievance had yet to be proved to be valid. Not every claim is made out. And while some were quite small and might, for example, relate to a small urupa or burial site, others were very large indeed. Cabinet had to agree to set a sum aside and it did so by assigning $100m each year for 10 years, a total of $1b. So far so good. But what if claims were able to be settled on this basis and then a future government decided the sum should be $2b? This became a real issue in the Waikato Tainui settlement in which it was agreed to insert a relativity clause to preserve Waikato Tainui's position in the unlikely event of a future Government deciding to significantly increase the sum available to settle Treaty grievances. At the end of the day the settlements have to have durability and be final. The intention is to put the sad events of the past behind us all and to encourage Maori to move out of grievance and into development mode.

Since then we have had a change of Government and the Coalition Agreement has discontinued the cap on what has become known as the fiscal envelope, but only on the basis that:

The settlements already effected will not be reopened.
Future claims will be settled on their merits, using the settlements already effected as benchmarks.
Fiscal responsibility.
In September 1992, an opportunity had presented itself to settle the commercial fisheries claim. As a result of the Sealord settlement, Maori ended up with about a quarter interest in the total fishery. Since then that share has increased to almost a half with prudent management. We were fortunate that the Maori negotiators showed great leadership and recognised the need to compromise to ensure Maori began to look ahead rather than remain locked in the past.

A number of smaller land-based settlements were reached, and then of course Waikato Tainui. A few more smaller ones followed before Heads of Agreement were signed with Ngai Tahu of the South Island and with Whakatohea in the Bay of Plenty, subject, in each case, to ratification by the whole tribe. All up the fiscal cost of assets transferred or agreed to be transferred to date is a little over $600m. This is but a fraction of the loss suffered but it is hoped it will enable Maori to play their full part in society again and can preserve the things they hold dear. We will all benefit from this.

I mentioned earlier how difficult it is to give recognition to values and traditions which are unique to Maori in today's world. Let me give you an example. To most of us a river is something to use. We fish in it, swim in it, launch our boats into it and may enjoy just looking at it flow by. But we don't revere it as Maori do. To them it represents their ancestors and has its own wairua or spirit. They are naturally offended when it is polluted or diverted for irrigation or other purposes. The potential for disagreement is very real. To Maori, landmarks such as mountains are important because they mark tribal boundaries. They, too, are imbued with a spiritual element which is not easy for us to understand. Such natural features are referred to in waiata or songs and in ancient chants. If we are to live together with goodwill we have to recognise these intangible elements in some way which fits in with current needs. In the Ngai Tahu negotiations, many months have been spent with much lateral thinking trying to devise new concepts which will do this. We have created topuni reserves which are in effect an overlay status which doesn't amend the existing classification whether it be a scenic reserve or historical reserve. We have nohoanga reserves on Crown land for river fishing. These authorise Ngai Tahu to camp there. Then there are what are known as statutory acknowledgments which are designed to ensure that those sites of great importance to Ngai Tahu are not the subject of resource consents without Ngai Tahu being advised. This is not a veto right but a right to be heard. Other innovative concepts have been developed. Ngai Tahu will become a statutory adviser to the Minister of Conservation in relation to certain items of flora and fauna. Some conservation groups are troubled by some of these developments but I do not think there is much merit in their concerns. The settlement will add tens of thousands of acres to the conservation estate and public access rights preserved and even enhanced. The detail in the negotiations is extraordinary but we are nearly there.

Negotiations with others are underway. Ngati Awa in the Bay of Plenty and the very large Taranaki claims are making progress. Muriwhenua in the far north will, I hope, soon come to the table.

Let me conclude. Some say it is all a waste of time. They even claim somehow that this is apartheid. But would they be happy to be absorbed into Maori? Would they agree their culture should wither on the vine? Do we all really have to be the same? We should revel in our differences, learn from each other, listen with tolerance one to the other, two families in the same house, and very proud to be New Zealanders together.