Treaty Transparency Report: Never-ending settlements

Posted on October 13, 2013
By Mike Butler

The latest Treaty Transparency Report, provides an updated summary of settlements from the Office of Treaty Settlements dated July 31, 2013. It shows that with a total of 60 treaty settlements more or less completed and at least 23 under negotiation, a total of $2.23-billion has been agreed upon and largely transferred. According to the OTS progress report, the settlement process is probably less than half way through.

This latest treaty settlements update outlines what is wrong with the historical redress process. It confirms Opposition MPs’ predictions that the open-ended nature of the 1985 legislation that enabled claims back to 1840 would write a blank cheque for claimants and create never-ending settlements.

The highly unusual decision by the 1984-87 Labour government to commission a seven-member tribunal to settle all real and imagined allegations and grievances back to February 6, 1840, the date the Treaty of Waitangi was signed, was, according to Maori Affairs Minister Koro Wetere, to address “the mounting tension in the community that springs from the sense of injustice that is harboured about the grievances that are outstanding”.¹

Politicians of the day had seen a land march of 5000 people deliver, in October 1975, a petition signed by 60,000 people to Prime Minister Bill Rowling demanding that no more Maori land would be sold. Moreover, every year protestors disrupted Waitangi Day celebrations with demands related to land.

Wetere, and fellow Labour politicians Peter Tapsell, Whetu Tirikatene-Sullivan and Bruce Gregory, argued the case for the Treaty of Waitangi Amendment Bill in 1984-85 although Justice Minister Geoffrey Palmer was the guiding hand. Palmer explained that he set up processes and procedures because addressing Maori grievances was politically unpopular, and legislation to address grievances ran the risk of being outvoted.²

Palmer argued that protests on Waitangi Day proved that the wounds had not healed, and said that one of parliament’s basic purposes was to provide for the redress of grievances, and the bill provided an orderly, institutional framework for the settlement of disputes.

The Treaty of Waitangi Amendment Act 1985 – which allowed the investigation of claims back to 1840; increased membership of the Waitangi Tribunal from three to seven; enabled the tribunal to commission research; gave the tribunal the power to appoint legal counsel; and corrected printing errors in the Maori text of the treaty in the Act – was passed with a majority of 14. The bill was largely ignored by the media and attracted only 24 submissions, with one opposing it.³

Opposition Maori MPs Winston Peters and Rex Austin, along with Douglas Graham and Ian McLean, drew attention to problems with the 1985 bill. Here is a summary of their arguments:

1. The impartiality of the tribunal is in question because legislation would require four Maori and two non-Maori, giving the perception of bias.
2. Allowing claims back to 1840 widens the expectations of all Maori people. It will bring an avalanche of grievances and dissatisfaction when the government has no capacity to solve those problems.
3. If those expectations are not fulfilled there will be land marches, there will be disruption, and there will be massive despoliation and dispossession.
4. It may well be that the bill will become a blank cheque for grievance and dissatisfaction, an open cheque for the transfer of political pressure, first to the tribunal and thereafter to other institutions.
5. The bill puts the Torrens system of land ownership under attack.
6. No resolution of any application will be deemed to be final – a claimant can go back to the tribunal again and again. The bill does not clarify what would happen in such a case. The settlements reached at Bastion Point, Gate Pa, Waikato, and with Ngai Tahu, Whakatohea, and Tuhoe, also could be upset.
7. What will it cost? Will it cost $2-billion, $3-billion, or $10-billion to right the wrongs that have taken place since February 6, 1840?
8. The people who will make the most money out of this will be the lawyers. They will make even more money than the Maori.
9. The Maori world is suffering in a sea of poverty created by the government in areas such as housing, food, and the common decencies of life. The bill will not satisfy Maoridom.
10. There will be a backlash against this bill because people say enough is enough.

Twenty eight years later, with a total of 60 treaty settlements more or less completed and at least 23 under negotiation, the tables at the back of the Treaty Transparency report show how the settlement process has evolved.

No backlash has been permitted. Because settlements are arrived at through private negotiation and because the deeds are legally binding from the point of signing, the settlement process has been put beyond public scrutiny and outside of the political process. This was done deliberately because governments knew race-based affirmative action of this sort would be highly unpopular. The absence of backlash, apart from an outcry in 2004 in response to National Party leader Don Brash’s Orewa speech on race relations, is the only Opposition prediction that did not eventuate. However, every other prediction has come to pass:

1. The tribunal failed to act as an impartial body of inquiry because its appointed members became advocates for Maori rather than independent assessors of the claims put before them.
2. Allowing the re-investigation of all issues back to 1840 with the promise of monetary compensation let greed take over, bringing a flood of 2034 claims by the 2008 cut-off date for historic claims. In comparison, in 1882 there were only nine grievances.
3. Waitangi Day protests continued unabated, with Prime Minister Helen Clark being reduced to tears at Waitangi in 2000, and mud thrown at Opposition leader Don Brash in 2004. Land occupations have continued.
4. The Waitangi Tribunal soon became used as a tool used to exert pressure on succeeding governments. The New Zealand Maori Council regularly uses its reports backing its demands, as evidence in High Court action to get favourable outcomes – in claims over State-owned enterprises, fisheries, language, radio spectrum, water, and so on.
5. Despite repeated assertions that private landowners would not be affected, several farmers were forced off their land by Te Roroa resulting in an amendment (4A) to the Treaty of Waitangi Act, which said “the tribunal shall not recommend . . . (a) the return to Maori ownership of any private land; or (b) the acquisition by the Crown of any private land.”
6. The term “full and final settlement” lacks all credibility. Many sub-groups of entities that have already received final settlements are permitted to receive further settlements.
7. The cost continues to escalate. A cap of $1-billion known as a “fiscal envelope” was suggested in 1994 and predictably rejected by tribal bodies. A total of $2.23-billion has now been agreed upon and largely transferred so far (see Treaty Transparency report settlement tables). The 46 uncompleted settlements could total a further $1.6-billion. Ngai Tahu has received and is disputing a relativity top-up of $68.5-million and stands to pocket a further $257-million as a result of the relativity clause in their so-called 1998 “full and final” settlement.
8. Lawyers have certainly profited from the “gravy train” created by the bill. The Crown Forestry Rental Trust that was established to transfer Crown forestry assets, receive forestry rentals, and fund claims, has disbursed a total of $671.99-million to claimants. Lawyers, researchers, iwi representatives, and meeting organisers for the 2008 “Treelords” deal, which transferred ownership of central North Island forests to eight tribes, racked up $60-million in fees and expenses, of which an incredible $20-million went to tribal representatives to meet and negotiate among themselves.⁴
9. Settlements were sold as a way to reverse negative social indicators for Maori, but over the past quarter century, Maori social outcomes have worsened: Maori unemployment in 1981 was 14 percent, in 1993 it was 24 percent, and in 2012, it was 36.5 percent.⁵⁶In 2002, 38 percent of those on the domestic purposes benefit were Maori, and by 2012, it was 42.7 percent.⁷ In 2002, 23 percent of those on a sickness benefit were Maori, while in 2012 it was 28 percent. In 2002, 19 percent of those on an invalid’s benefit were Maori, while in 2012 it was 22.4 percent.

Politicians sold treaty settlements as a way of creating “an economic base for Maoridom”. Multi-million dollar packages are being given to 80 or so tribal incorporations that could also be regarded as extended-family businesses. Their members claim an ancestral connection to tribes that existed in 1840.

Many of these corporations are now doing well, but a large proportion of Maori have gained no benefit at all from the treaty settlement process.

Those Opposition MPs of the 1984-87 parliament – Maori MPs Winston Peters and Rex Austin, along with Douglas Graham and Ian McLean – were extraordinarily accurate in their predictions of the likely outcome of the loose, poorly drafted, and terminally naïve, Treaty of Waitangi Amendment Act 1985 that was ignored by the media and that has divided the Maori world into new haves and have-nots. Almost all of their predictions have come to pass.

The full report Treaty Transparency 1989-2013 may be read HERE.

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