More great sadness at passing of leaders
While political tension increased for Māori in 2006–07, there was also great sadness. Like our Tongan1 and Samoan2 relations, we lost significant leaders. In August 2006 the Tainui confederation of tribes lost their Arikinui of forty years, Dame Te Ātairangikaahu. As the hereditary leader of Tainui’s Kīngitanga movement, she was their Queen. Tainui established the Kīngitanga in the 1850s in an attempt to stop the confiscation of their territories by European immigrants. They are the only tribal confederation in New Zealand to have established a British style monarchy, and although most iwi are not part of the Kīngitanga, it nevertheless enjoys widespread support and respect within Māoridom. Thus, despite Dame Te Ātairangikaahu holding no constitutional position in New Zealand law, she was often referred to as ‘the Māori Queen’. She was a strong figure in Māori politics and a staunch supporter of Māori sports and culture.3
Emeritus Professor Sir Hugh Kāwharu
In September, Ngāti Whātua lost their paramount chief, Emeritus Professor Sir Hugh Kāwharu. He was the chair of the Ngāti Whātua o Ōrākei Māori Trust Board for more than twenty years and was the major force behind the Ngāti Whātua Treaty of Waitangi claims to the Auckland area. His determination to break though government mean-spiritedness and intransigence in order to settle the claims saw him taking on a hugely punishing workload after he retired as Professor and Head of the Department of Māori Studies at the University of Auckland in 1993. He signed an Agreement in Principle towards settlement of those claims shortly before his death.4
In April 2007, the veteran Māori actor and film maker and one of New Zealand’s most outstanding television and film producers and directors, Don Selwyn, passed away. He was Ngāti Kurī, Te Aupōuri and Ngāti Kahu of the Far North. His greatest masterpiece was Te Tangata Whai Rawa o Wēniti – The Māori Merchant of Venice,5 the film version of Shakespeare’s famous play which had been translated into Māori by Pei Te Hurinui Jones in 1945.
Māori–government tensions persist; Māori protest continues but with more effective support
On the political scene, however, the racist attitudes towards Māori which continued to dominate the New Zealand Parliament resulted in ongoing and increasing tension between Māori and the government on many issues over 2006–07. Māori had once again had to resort to protest action as the government repeatedly denied us our legal rights. However, this time, coordinated protest across the country as a result of refusals to return stolen lands resulted in the government backing down and calling a temporary truce on that particular issue. For apart from strong judicial backing, particularly from the Waitangi Tribunal, and international condemnation from the United Nations,6 the presence of the small but very effective independent Māori voice in Parliament, the Māori Party, ensured that Māori issues were no longer determined solely according to the racist whim of the major parties in the House.7
Treaty of Waitangi claims ongoing source of tension
The area that continued to be the major source of tension was the settlement of Treaty of Waitangi claims. British immigrants who have settled New Zealand in large numbers since the 1850s had long sought to get rid of the Treaty of Waitangi. For over a century they simply ignored it, and the courts sanctioned their behaviour.8 But in the aftermath of World War II, international agreements outlawing racial discrimination along with highly visible and embarrassing Māori protests forced the New Zealand government into establishing the Waitangi Tribunal in 1975. Its brief is to inquire into Māori claims of breaches of the Treaty. The government of the day did not expect that the Tribunal would hear many claims, meet often or cost much.9 However, by the 1990s the Tribunal was building an extremely bleak and ever-expanding scenario of the extensive and serious nature of the atrocities committed against Māori. In an effort to try to limit its liabilities in the area the National government announced in its policy released in 1994 that it wanted to settle the claims. It accepted responsibility for the atrocities and was prepared to compensate Māori. However money set aside for the settlements would be restricted to an arbitrarily set $1 billion and the government would avoid returning any land if it could get away with it.10
The loathed fiscal envelope settlement policy remains to extinguish Māori Treaty claims
Since 1994 Māori had fought against the policy. It had been drawn up unilaterally by the government with no Māori input and was deeply racist in its intent. Even in the face of ongoing strident Māori,11 judicial12 and international criticism,13 neither a National- nor a Labour-led government had been prepared to either amend the policy or withdraw it and start again. As more and more claimants were being bullied into accepting pitiful settlements, it was becoming clear in 2006–07 that the primary aim of the policy was to get Māori around the country to agree that rather than settling their Treaty of Waitangi claims, they should instead extinguish them. And furthermore, they were also effectively agreeing to a systematic extinguishment of the Treaty of Waitangi itself. In mid-2007, legislation was before Parliament to remove all references to the principles of the Treaty of Waitangi from all legislation, and it had the support of the current coalition government. And to try to minimise the international backlash, the New Zealand government joined Australia, Canada and the United States in November 2006 in opposing the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. Māori had supported and worked on the Declaration for twenty years.
The Treaty of Waitangi Claims Settlement policy was designed to legislatively absolve the Crown of any and all liability and responsibility for its innumerable historical breaches of the Treaty of Waitangi and the theft of more than 90 percent of the country’s lands and resources from Māori. The government did this by bullying select groups of Māori, purportedly representing ‘large natural groupings’ of many thousands of other Māori, into agreements that were legally binding and unchallengeable. The Crown’s primary aim for the agreements was to provide:
• full and legally unchallengeable removal of legal liability for all breaches of the Treaty of Waitangi, both identified and unidentified, committed in a particular geographic area prior to 1992
• full and legally unchallengeable acceptance by the iwi of all discriminatory legislation, including the Foreshore and Seabed Act 2004, along with all assertions of Crown authority, dominance and sovereignty over Māori
• full and legally unchallengeable acceptance that iwi had relinquished all their sovereign rights and authority over identified geographic areas to the Crown.
In exchange for that agreement, the Crown was prepared to make an apology for the breaches committed prior to 1992 (but not to stop committing further breaches) and to transfer a few acres of land.14 And while money was always mentioned as being part of settlements, if claimants wanted land returned, they had to use the money offered (and often borrow more as well) to buy the land off the Crown. The policy was, as one would expect, causing huge divisions and strife within iwi. The Crown actively and openly fostered and exploited the divisions as it moved on relentlessly to achieve maximum implementation of its policy.15
Of course, protection of Māori from all of these situations is guaranteed by the Treaty of Waitangi. The authoritative Māori version, known as Te Tiriti o Waitangi, promises that the Crown shall have governance over its own subjects only, that Māori sovereignty is recognised and upheld and that Māori have the rights of all British citizens.16 Since 1987 the courts have repeatedly confirmed the influence of the Treaty.17 It is, after all, New Zealand’s founding document.18 Had the Crown been able to control the rapacious greed of British immigrants in the nineteenth and twentieth centuries, it would not now be faced with not only remedying the wrongs but also addressing the racism that has been allowed to become deeply entrenched in the Pākehā psyche. Māori have made it very clear that delaying remedying the situation will not make it go away. And neither can legislative sleights of hand ever extinguish the Treaty of Waitangi.
Yet settlements are proceeding nevertheless
Since mid-2006 the Crown had been dealing with twenty settlements. The Ngāti Mutunga Settlement Bill was enacted in November.19 It provided $14.9 million for Ngāti Mutunga to buy back some of the 150,000 acres the Crown stole from them. The land alone had an estimated monetary value of $5.19 billion,20 making the settlement monies less than 0.3 percent of the value of the land stolen. The Settlement Act acknowledges that the settlement did not compensate Ngāti Mutunga for the atrocities committed against them.21 These include the rape, murder and illegal incarceration of large numbers of the iwi, the government waging war on them when they refused to give their lands to British settlers, the government confiscating all of their lands and many other breaches of the Treaty of Waitangi they have suffered and continue to suffer.22 But the Act then says that Ngāti Mutunga had forgone full compensation as its contribution to the ‘development of New Zealand’, and as such the settlement was full and final.23 In the House during debate on the Bill, the Māori Party was scathing of the Crown’s mean-spiritedness and referred to it repeatedly as ‘the thief’. They advised Ngāti Mutunga to revisit the settlement in generations to come with a view to being properly compensated and not to accept the full and final stipulation of the Crown.24
Te Rōroa Claims Settlement Bill
Te Rōroa’s Claims Settlement Bill came before the House in March 2007. Te Rōroa are a hapū of Ngāti Whātua who were left virtually landless. They first complained to the Crown about breaches of the Treaty 165 years ago. They had been under relentless attack from Crown officials who denied them their legal and human rights for several generations. The Waitangi Tribunal upheld all their claims in 1992, detailing countless atrocities perpetrated against them by the Crown.25 They had been in negotiations for more than fifteen years. The settlement was for $9.5 million to be used to buy from the Crown a small portion of Te Rōroa’s land, now being used commercially. Extensive wāhi tapu had been stolen from them and 2000 acres of these were returned in the settlement.26
In the House, the Māori Party warned that Te Rōroa had been subjected to ‘a negotiations process drafted by the Crown, and the Crown alone, based on false faith and double-talk. It is a negotiations process that masquerades as being fair and reasonable in the circumstances but which, in fact, is anything but, and an empty insistence by the Crown that all settlements be full and final – an insistence that will haunt this Chamber long after it is cleared …’27 They went on to point out that unfair settlements imposed in 2007 such as this would be revisited by future generations. They also noted that considerably less land than what the Waitangi Tribunal had recommended was being returned to Te Rōroa. They pointed out to the House ‘that an apology and a return of less than 3 percent of the claim value pepper-potted throughout the tribal homeland of Te Rōroa will simply not suffice.’28
Ngāti Whātua ki Ōrākei Agreement in Principle
In June 2006 Ngāti Whātua ki Ōrākei hapū signed an Agreement in Principle to settle their claims to the Auckland isthmus. It agreed to vest three volcanic cones and land around Pūrewa Creek in the hapū but stipulated that the lands were to be managed jointly by the hapū and the Auckland City Council with the Council controlling the funds. The settlement was for $8 million to be used as part payment for up to $80 million of Defence lands at Devonport, which Ngāti Whātua can buy from the Crown provided they lease it back to the Crown and the Crown pays no rent for thirty-five years.29 The agreement came under serious threat when six other hapū with claims over the same area took the matter to the Waitangi Tribunal for an urgent hearing to prevent their claims being extinguished by such a settlement. The hearings took place in March 2007. The Office of Treaty Settlements, which manages negotiations for the Crown, came under severe criticism from the Tribunal when in addition to wrongly treating with claimants and fomenting divisions among the iwi of Auckland, it was revealed that they had withheld crucial evidence from the Tribunal during the inquiry and misled the Tribunal.30
In September 2006 the Te Arawa Lakes Settlement Bill was enacted. The lakes in the central North Island, including Lake Rotorua, had been severely polluted by farm runoff and sewage disposal into the lakes. The $10 million settlement returns the lake beds to Te Arawa, leaving them to consider a clean up that it is estimated will cost $200 million even though Te Arawa is specifically not liable for the pollution.31 This settlement extends Crown theft of Māori assets in that it claims ownership not only over the water in the lakes but also airspace above them. The term ‘Crown stratum’ was being used in 2007 to describe the redefined space above the lakebed.32 In the House during the debate on this bill, the Māori Party tabled a report on Māori experiences of the Treaty of Waitangi Settlement negotiations that demonstrated strong and universal condemnation of the process by claimants.33 Once again, the Māori Party warned that these settlements could not be full and final and would be revisited.
Central North Island forest settlements run into major problems as the Crown makes itself a beneficiary of the settlement
Attempts by the government to force through a settlement of part of the huge central North Island forestry claims relating to the Kaingaroa forest and other lands around Rotorua triggered a series of court actions. Of direct relevance to these claims was the Crown Forestry Rental Trust, which was set up in 1990 to hold forestry rental money in trust pending successful claims to forestry lands. Well over $400 million is now held by the Trust, of which almost $190 million is held for the Kaingaroa forest.34 On top of that, the Crown Forest Assets Act provides for the transfer of Crown forest land plus compensation to Māori once their claims to the land have been upheld by the Waitangi Tribunal. Claims to the central North Island, including the Kaingaroa forest, have been before the Tribunal for some time, and the Tribunal issued its report upholding the claims in June 2007.35
In a truly staggering fit of arrogance and deceit the Crown managed to persuade part of the Te Arawa confederation of iwi, which is one of a very large number of claimants to the Kaingaroa forest, to settle Te Arawa’s historical claims by giving over to the Crown $40.985 million in forestry rentals set aside for the Māori owners of the lands. In addition, the Crown persuaded them to use the remainder of their rental money plus another $8 million (which they have to borrow from elsewhere) to buy from the Crown the land that is rightfully theirs under the Crown Forests Assets Act 1989. The Crown stood to make a $90 million profit if it passed legislation to settle these claims along these lines. It would be able do so after having convinced the claimants to enter into an agreement that allowed the Crown to become a beneficiary of the Crown Forestry Rental Trust. At that time only those with successful claims to the land could be beneficiaries of the Trust. Those claimants also had to agree to the Crown selling the land in question to Māori: land that the Waitangi Tribunal was likely to find belonged to those and other Māori anyway. The Federation of Māori Authorities and the New Zealand Māori Council took the matter to the courts.36 The Waitangi Tribunal issued a strongly worded report saying that it could not endorse the settlement and that it had grave concerns over the potential negative impacts on overlapping iwi.37
Ngāti Kahu gives up on the settlement process and repossesses its lands
However in the Far North one iwi, Ngāti Kahu, took a very different approach. They withdrew from negotiations after the Crown started to sell off part of Ngāti Kahu’s Rangiputa block, currently being used by the government’s farming enterprise, Landcorp. In 1997 the Tribunal had indicated that it would make binding recommendations in order to return State enterprises lands such as Rangiputa to Ngāti Kahu and other Far North iwi if negotiations with the government failed.38 Since 1997 successive governments had threatened Ngāti Kahu that if they did seek binding recommendations under the State Owned Enterprises Act 1986, the government would repeal the Act. Once negotiations with the Crown had ceased, Ngāti Kahu moved on to the land, repossessing it. Their stance started a chain reaction as other iwi, whose lands were also being sold by Landcorp, took similar action. A protest march in the Far North town of Kaitāia in support of the repossession was the biggest the town had ever seen. In the House the Māori Party relentlessly pursued the government over the issue, calling on all iwi to follow suit and repossess their lands. After two weeks the government backed down and withdrew the lands from sale temporarily. Each of the iwi concerned pursued binding recommendations through the Waitangi Tribunal, a mechanism that allows the Tribunal to order the Crown to return state-owned enterprise land, Crown forest lands and certain other Crown lands to their Māori owners.39
1 King Taufa’ahau Tupou IV passed away in September 2006.
2 Samoa’s head of state, his Majesty Malietoa Tanumafili II, passed away in May 2007.
3 MLR, August 2006, p. 1; MLR, October 2006, p. 1; Derek Fox, 2006(c), ‘Cover Story: “The Lady” ’, Mana no. 72, October–November 2006, pp. 6–27.
4 MLR, October 2006, p. 2.
5 Māori Party, 2007(a), ‘Poroporoaki: Don Selwyn’, press release, 16 April 2007, http://www.scoop.co.nz/stories/PA0704/S00272.htm.
6 Stavenhagen, Human Rights and Fundamental Freedoms of Indigenous People.
7 The Māori Party, with only four MPs, continued to maintain the same punishing work schedule reported on in the previous chapter. It spoke on 164 Bills that came before the House between June 2006 and May 2007. It delivered many more speeches in the House other than these, issued no fewer than 850 press releases and still managed to travel around the country consulting widely with Māori. It was rewarded with high levels of support among Māori in various Māori polls.
8 In 1877 Chief Judge Prendergast in Wi Parata v Bishop of Wellington [1877] 3 NZ Jur (NS) 72 dismissed the Treaty of Waitangi ‘as a simple nullity’, a decision that prevailed for almost 100 years. In 1938 the Privy Council in Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 held that the Treaty can only be recognised if it is incorporated into municipal law, a position that still exists today.
9 Oliver, Claims to the Waitangi Tribunal, pp. 9–10.
10 Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims.
11 See chapter 2.
12 Especially the Waitangi Tribunal. See for example the Taranaki Report, pp. 314–15.
13 See Stavenhagen, Human Rights and Fundamental Freedoms of Indigenous People, paras 26–7, 32–5, 42, 93–5.
14 Mutu, ‘Recovering Fagin’s Ill-gotten Gains’, pp. 202–4.
15 Mutu, ‘Recovering Fagin’s Ill-gotten Gains’, pp. 194–5.
16 See Appendix 1.
17 See, for example, Huakina Development Trust v Waikato Development Authority [1987] 2 NZLR 188; New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576 (the State-owned Enterprises case).
18 The country named New Zealand came into formal being following the signing of Te Tiriti o Waitangi in 1840 and includes British immigrants formally invited to settle in that treaty. The original name of the country is Aotearoa (and often Te Waipounamu me Rekohu is added to distinguish the South Island and Chatham Islands), which is the name that identifies the country as Māori. It is widely used by Māori to this day.
19 MLR, February 2007, p. 6.
20 Calculated from the compensation of $34,545 per acre paid to a Pākehā who had his land confiscated for Te Rōroa’s Treaty claims (Walker, Ka Whawhai Tonu Matou, pp. 310–11.)
21 MLR, February 2007, p. 6.
22 Waitangi Tribunal, Taranaki Report.
23 MLR, February 2007, p. 6.
24 Māori Party, 2007(b), ‘Flavell: Ngati Mutunga’, press release, 27 July 2007, http://www.scoop.co.nz/stories/PA0607/S00483.htm
25 Waitangi Tribunal, 1992(b), The Te Roroa Report (Wai 38), Wellington, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/reports/
26 Office of Treaty Settlements, 2005, Summary of the Te Roroa Deed of Settlement, http://www.ots.govt.nz/
27 MLR, March 2007, p. 6.
28 MLR, March 2007, p. 7.
29 MLR, June 2006, p. 8.
30 Waitangi Tribunal, 2007(a), Tāmaki Makaurau Settlement Process (Wai 1362), Wellington, Waitangi Tribunal, p. 101, http://www.waitangi-tribunal.govt.nz/reports/
31 MLR, September 2006, p. 6.
32 Clause 10.1.1 as amended in Office of Treaty Settlements, 2006, Deed to Amend Deed of Settlement of the Te Arawa Lakes Historical Claims and Remaining Annuity Issues, http://www.ots.govt.nz/
33 Dion Tuuta, 2003, Maori Experiences of the Direct Negotiations Process, Wellington, Crown Forestry Rental Trust.
34 Crown Forestry Rental Trust, 2006, ‘Forest Rental Proceeds Held in Trust at 31 March 2006’, in Notes to the Financial Statement for the Year Ended 31 March 2006, http://www.cfrt.org.nz/doclibrary/public/thestorehouse/rta2005-2006/RentalProceeds0506.pdf
35 Waitangi Tribunal, 2008, He Maunga Rongo: The Report on the Central North Island Claims, Stage 1 (Wai 1200), Wellington, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/reports/
36 Te Aho, 2010, ‘Judicial Creativity’, pp.118–9.
37 Waitangi Tribunal, 2007(b), Final Report on the Impacts of the Crown’s Settlement Policy on Te Arawa Waka and Other Tribes (Wai 1353), Wellington, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/reports/
38 Waitangi Tribunal, Muriwhenua Land Report.
39 Margaret Mutu, 2007, Te Rūnanga-ā-Iwi o Ngāti Kahu Land Claims Report for February–March 2007, Kaitāia, Te Rūnanga-ā-Iwi o Ngāti Kahu.