Key govt’s $1.2b treaty settlements record

Posted on August 24, 2014
By Mike Butler

The current National-led government has been by far the most generous with treaty settlements, having paid out $1.22-billion over six years, and is pushing for as many signed agreements as possible before the September 20 election.

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”.[1] But questions remain about whether the grievances were real, the settlements final, and the claimants genuine. Comments on Finlayson’s article were soon closed and respondents reminded to keep remarks publishable.

Many know that grievances were carefully nurtured and promoted since anti-free world Maori-sovereignty protests on Waitangi Day in the early 1970s and a land march in 1975.

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. But how real are the grievances?

A can of worms was opened. The number of grievances multiplied, from just nine in 1882 [2] to 2125 claims by 2009.[3] Where did all those other complaints come from and how genuine are they?

Historian Alan Ward analysed about 650 historical claims lodged between 1985 and 1997 to find common threads. The grievances are:

1. The “loss of rangatiratanga”, which includes the loss of resources, and the exclusion of Maori from the decision-making institutions.

2. Purchases under the native land acts, which extended well into the 20th century. Ward particularly criticizes the “individualisation of title”.

3. Crown purchases from 1840 to 1865, which Ward claimed discouraged Maori leasehold and joint venture arrangements and the coexistence of aboriginal title rights.

4. Confiscation or forced cession after military occupation, in particular districts.

5. The colonial government’s alleged failure to ensure that adequate reserves of land remained in Maori ownership, or in trust, to fund Maori welfare.

6. The loss of ownership or control of rights in foreshores and inland waterways.

7. Public works takings disproportionately imposed upon Maori land, the rating of Maori land, and the good and bad consequences of development schemes.[4]

The scope of grievance had become so wide by 1997 that everything the government did since 1840 could warrant a claim.

Most ingenious is “loss of rangatiratanga”, a grievance that was conjured up, as the Treaty Transparency report explains, by reinterpreting the Treaty of Waitangi to change the meaning of the word that translates “ownership” in article 2 to mean “chieftainship”. “Loss of rangatiratanga” is the claimed loss of the right of chiefs to carry on being chiefs. This is nonsense if the treaty is an agreement in which sovereignty is ceded in return for rights as British subjects.

Claimants complain of “land loss” and demand that the land be “returned”. But claimants do not say that chiefs sold the land and kept the substantial amounts of money paid for it without sharing. New Zealand has a total land area of 26.8-million hectares. Of this, 24.13-million hectares were sold. Claims about land sales before 1840, about sales between 1840 and 1865, and sales through the Native Land Court, are really only claims for more money.

Confiscation of land is the most obvious grievance. A total of 1.2-million hectares were confiscated during the 1860s wars, much of which was returned at the time. Confiscations, limited to some areas, were punishment for tribal rebellions, followed warnings, and were carried out legally.

Compensation courts were set up at the time to investigate complaints. A further commission under Supreme Court Judge William Sim from 1926 considered whether confiscations exceeded in quantity what was fair and just. That commission found some confiscations excessive and recommended annual payments to Taranaki tribes (₤5000) [5] and to Waikato (£3000).

Treaty Negotiations Minister Christopher Finlayson usually says that tribes suffered dreadfully as a result of Crown treaty breaches. He would be more correct to say that tribes suffered dreadfully at the hands of each other before 1840. British settlement ended slavery, infanticide, cannibalism, and permanent warfare.

How full and final are the settlements? Because full and final settlements of the past have been re-settled, and because two of these re-settled claims have ongoing top-up clauses, there is little evidence to indicate current settlements are final.

Following Sim’s recommendations, a number of claims had full and final settlements in the 1940s. The 1944 Taranaki Maori Claims Settlement Act enabled an annual payment of ₤5000 to the Taranaki Maori Trust Board, plus a £300 lump sum payment for loss of property at Parihaka in 1881.[6]

Similarly, the Waikato-Maniapoto Maori Claims Settlement Act 1946 provided for the establishment of the Tainui Maori Trust Board to receive ₤5000 a year in perpetuity plus a further ₤5000 and £1000 a year for 45 years.

The Ngai Tahu Claim Settlement Act 1944, awarded £300,000, payable at a rate of £10,000 a year for 30 years, to the tribe that sold the South Island and made a business out of lodging claims against the government. The words “full and final settlement” featured on the front page of the Act.

Although those 1940s settlements were agreed as full and final, the Treaty of Waitangi Amendment Act 1985 that allowed claims all the way back to 1840 created an opportunity for all tribes to revisit old grievances to get more money.

Waikato-Tainui negotiated a further $170-million in 1995, Ngai Tahu a further $170-million in 1998, and Taranaki tribes a further $260-million by 2014.

Moreover, both Waikato-Tainui and Ngai Tahu negotiated relativity clauses entitling each to a percentage of all future treaty settlements once they exceed $1-billion in 1994 dollars. These clauses were triggered in June 2012. The government calculated that Ngai Tahu’s 16.1 percent was $68.5-million, and Waikato Tainui’s 17 percent was $70-million. Both tribes pocketed the cash and claimed more and the matter went to arbitration – behind closed doors.

How genuine are the claimants? What is clear that 110,928 people of the total Maori descent group of 668,724 did not know their tribe, and the total number of Maori who identified with a tribe numbered 512,325 persons.[7] Yet tribal voting figures show that fewer than 25 percent of the tribe’s claimed members are interested enough to vote.

For instance, the Ngapuhi website says that in a vote in 2011, Ngapuhi “overwhelmingly gave their mandate to an entity known as Te Ropu o Tuhoronuku”, giving a figure of 76.4 percent support. But the finer print on the website says that the 76.4 percent was of the 23 percent who voted, giving a claimed majority of only 21,850 members of the 125,000-member tribe. That’s hardly a majority. A heated argument is going on between Ngapuhi factions because the group with the mandate gets the money.

Therefore, so-called Crown-Maori treaty settlements are only really agreements between the Crown and fewer than 25 percent of those who voted. This is hardly representative and only the most wishful thinker could imagine settlements made on this basis as durable.

Aside from questions over whether grievances were real, settlements final, and claimant groups representative, it is clear that we as voters and taxpayers have not been consulted in any meaningful way on whether alleged past injustices are best addressed by making large payments to tribal groups.

The architect of this grand scheme, Sir Geoffrey Palmer, carefully set up a system that allowed settlements to avoid being voted down and to proceed without much scrutiny at all.[8] Settlements become legally binding upon signing. Parliament merely gives a stamp of approval. Wide general support is claimed, without evidence, and any critics are simply branded as racist.

Treaty settlement proceeds, including land, buildings, cash, and long-term leases to government departments, go to the small elites who managed to get the mandate to negotiate a settlement. These groups have the right to trade as tax-exempt charitable bodies without having to show any sign of charitable work, and trade in competition with businesses that borrow money to buy land and buildings, pay interest on the money borrowed, compete for tenants, and pay tax on profit.

Having developed special relationships with selected politicians and government departments, armed with letters of introduction and co-governance rights, the new tribal corporations have assumed a place in local government as of right rather than having to compete for votes, and are demanding the right to share the consent process cash flow through consent-for-cash deals in areas where sacred sites are claimed.

The table in Treaty Transparency – Settlements 1989-2014 updated shows that to July 31, 2014, a total of 53 settlements with a total financial redress amount of $2.52-billion have been completed, and 10 settlements totalling $214.94-million are awaiting legislation. Four groups have deeds of settlement ready for tribe members to ratify. There are a further 13 agreements in principle, and around six.groups are in negotiation.[9]

Treaty Negotiations Minister Chris Finlayson also wrote, on Waitangi Day this year, “that some people say they want an end to historical settlements. Most people agree”.

Perhaps he is operating under the illusion that we can all get back to normal after all settlements have been completed.

But the treaty settlements process has created a vast industry of negotiators, lawyers, law firms and tribal corporations all relying on this form of corporate welfare, and this has expanded into local government co-governance. Heavy treaty principles indoctrination goes on at schools, universities, teacher-training colleges, hospitals, in fact through all government departments.

Sadly, the treaty industry has become the new normal and already the evidence shows that treaty settlements have been an expensive mistake.

*You can read the latest Treaty Transparency Report HERE.