Treaty of Waitangi claims and settlements

The Treaty of Waitangi

The Treaty of Waitangi is often considered to be the founding document for European (Pākehā) settlement in New Zealand. It guaranteed to Māori the right to keep their lands, forests, fisheries and all their treasures, but they would hand sovereignty in the English version, and governorship in the Māori version, over to the Crown and would also be able to sell only to the Crown. Initially, there was little dispute, as the settlers were able to buy land from the Māori through legal channels. However, after a while, Māori became disillusioned and less willing to sell, while the Crown came under increasing pressure from settlers wishing to buy. Consequently, government land agents were involved in a number of dubious land purchases. Agreements were negotiated with only one owner of tribally owned land and in some cases land was purchased from the wrong people altogether. Unrest and rebellion caused by these actions were met with further punitive land confiscations. Eventually this led to the New Zealand Wars, which culminated in the confiscation of a large part of the Waikato and Taranaki.

In the 1920s, land commissions investigated the grievances of hapū whose land had been confiscated or otherwise fraudulently obtained in the previous century, and many were found to be valid.[1] By the 1940s, settlements in the form of modest annual payments had been arranged with some hapū. However, hapū came to consider the amounts to be inadequate, especially as inflation eroded their value, and the Crown has conceded that it did not sufficiently seek the agreement of hapū to declare their claims settled.[2]

During the late 1960s and 1970s the Treaty of Waitangi became the focus of a strong Māori protest movement which rallied around calls for the government to 'honour the treaty' and to 'redress treaty grievances'. Māori expressed their frustration about continuing violations of the treaty and subsequent legislation by government officials, as well as inequitable legislation and unsympathetic decisions by the Māori Land Court alienating Māori land from its Māori owners.[3]

In 1975 the Treaty of Waitangi Act established the Waitangi Tribunal to hear claims of Crown violations of the Treaty of Waitangi, to address those concerns. It allowed any Māori to lodge a claim against the Crown for breaches of the Treaty of Waitangi and its principles. Originally its mandate was limited to claims about contemporary issues, that is, those that occurred after the establishment of the Tribunal. Early claims included the "Te Reo Māori" claim.[4] As a result of the Tribunal's report into the claim, in 1987 the government made Te Reo Māori an official language of New Zealand, and established the Maori Language Commission to foster it. The pivotal issue considered by the Tribunal was whether a language could be considered a "treasure" or "taonga", and thus protected by the Treaty.

In 1985 the Fourth Labour Government extended the Tribunal's powers to allow it to consider Crown actions dating back to 1840,[5] including the period covered by the New Zealand Wars. The number of claims quickly rose, and during the early 1990s, the government began to negotiate settlements of historical (pre-1992) claims.[6]

While early Tribunal recommendations mainly concerned a contemporary issue that could be revised or rectified by the government at the time, historical settlements raised more complex issues. The Office of Treaty Settlements was established in the Ministry of Justice to develop government policy on historical claims. In 1995, the government developed the "Crown Proposals for the Settlement of Treaty of Waitangi Claims"[7] to attempt to address the issues. A key element of the proposals was the creation of a "fiscal envelope" of $1 billion for the settlement of all historical claims, an effective limit on what the Crown would pay out in settlements. The Crown held a series of consultation hui around the country, at which Māori vehemently rejected such a limitation in advance of the extent of claims being fully known.[8] The concept of the fiscal envelope was subsequently dropped after the 1996 general election.

Despite the protest, three major settlements were reached during this time. The Minister of Justice and Treaty Negotiations at the time, Sir Douglas Graham, is credited with leading a largely conservative National government to make these breakthroughs.[9]

The process of negotiating historical claims continued after the 1999 election and the subsequent change in government without radical change to government policy. The models developed for the early settlements remain a strong influence. The first Labour Minister of Treaty Negotiations was Margaret Wilson. On her appointment as Speaker of the House in early 2005, she was followed in the role by Mark Burton. He was replaced by Deputy Prime Minister Michael Cullen in November 2007.

In June 2008, the Crown and representatives from seven Maori tribes signed an agreement relating to Crown forest land that was dubbed "Treelords" by the media,[13] because of perceived similarities to the Sealord deal of the 1990s. Like Sealord, it relates to a single issue, but covers multiple tribes. The agreement contains only financial redress, on account against comprehensive settlements to be negotiated with each tribe within the Collective. The agreement is the largest to date, by financial value, at NZ$196 million worth of forest land in total (including the value of the Affiliate Te Arawa Iwi and Hapu share). In addition, but not counted by the government as part of the redress package, the tribes will receive rentals that have accumulated on the land since 1989, valued at NZ$223 million.[14]

As at July 2008, there have been 23 settlements (counting the above) of various sizes.[15] Except as noted above, settlements generally include financial redress, a formal Crown apology for breaches of the Treaty, and recognition of the group's cultural associations with various sites.

In November 2008, Chris Finlayson, a Wellington-based lawyer with experience in Treaty claims, was appointed Minister for Treaty Negotiations following the National Party victory in the 2008 election.

As well as the much publicised land and financial compensation, many of these later settlements included changing the official placenames. This has introduced significant numbers of macrons into official New Zealand placenames for the first time.[16]

The Treaty settlement process has attracted criticisms from across the political spectrum since it began. As noted above, Māori were concerned that the level of redress provided was too low, and that the settlement process was subject to too much Crown control. Conservationists were concerned about the impact of claims to conservation land, and many Pākehā were concerned that settlements would directly affect them. Public Access New Zealand and the One New Zealand Foundation[52] respectively were lobby groups formed to represent these views. In general, those who feel that the Treaty claims process has gone too far are Pākehā, while those who believe it does not go far enough are Māori. However, there are some exceptions on both sides: the politician who has perhaps been most prominent in arguing against the Treaty is Winston Peters, who is Māori, while there have been a number of Pākehā pro-Treaty groups.

However, during the 1990s there was broad agreement between major political parties that the settlement of historical claims was appropriate, within the confines of the government's policy to limit impact on private landowners and access to conservation land. Legislation enacting Treaty settlements was passed by Parliament with an overwhelming majority. On the claimants' side, support for a settlement was expressed through ratification among adult members of a tribe, in contrast with the early settlement attempts of the 1940s.

Over time, the consensus on the part of politicians has frayed. Winston Peters has critiqued the increasing number of claims registered at the Waitangi Tribunal, a result of the law which allows any Māori to lodge a claim, and suggested that a "Treaty of Waitangi Gravy Train" has formed around the claims process.[53] The ACT party has echoed that criticism – despite stating that "claims should be promptly settled where land was unlawfully taken or improperly compensated, if we can identify the descendants of those who were wronged",[54] they have never voted in support of Treaty settlement legislation, and coined the phrase "Treaty of Waitangi Grievance Industry",[55] to describe the participants in the settlement process.

The Orewa Speech in 2004 saw the National Party for the first time take up the term "Treaty of Waitangi Grievance Industry". National's Māori Affairs spokeswoman Georgina te Heuheu, who was Associate Minister to Sir Douglas Graham, was replaced in the role by Gerry Brownlee. Specific criticism that members of the National Party have made against settlements is that they are not being negotiated quickly enough, that insufficient attention is being given to ensure that claimant negotiators have the support of their people,[56] and that settlement legislation is giving inappropriate weight to the spiritual beliefs of Māori.[57]

The Māori Party and Green Party both criticise Treaty settlements on the grounds that the Crown has too much power in negotiations, that settlements negotiated at an iwi level ignore the rights of hapu (clans or subtribes), and that settlement redress is too parsimonious.[58]

While some disagreement remains, parties unanimously supported the legislation to implement the Te Roroa, Affiliate Te Arawa and Central North Island settlements, which were passed in September 2008.[59]

Maori academics Evan Poata-Smith, Carwyn Jones,[60] Margaret Mutu, Linda Te Aho, Hemopereki Simon and Robert Joseph[61] are critical of the processes of Treaty settlement.[62][63][64][65]

• Graham, Douglas (1997). Trick or Treaty?. Wellington: Institute for Governance and Policy Studies at Victoria University of Wellington. ISBN 0-908935-24-2.
• Orange, Claudia (2004). An Illustrated History of the Treaty of Waitangi. Wellington: Bridget Williams Books.
• Michael Belgrave; Merata Kawharu; David Vernon Williams, eds. (2005). Waitangi Revisited: Perspectives on the Treaty of Waitangi. Melbourne: Oxford University Press. ISBN 0-19-558400-7.
• Simon, Hemopereki (2017). Te Arewhana Kei Roto i Te Rūma: An Indigenous Neo-Disputatio on Settler Society, Nullifying Te Tiriti, ‘Natural Resources’ and Our Collective Future in Aotearoa New Zealand, Te Kaharoa. 9 (1), https://www.tekaharoa.com/index.php/tekaharoa/article/view/6/4
• Janine Hayward and Nicola R. Wheen (eds.). Treaty of Waitangi Settlements. Wellington: Bridget Williams Books.
• Malcolm Mulholland and Veronica Tawhai (2017). Weeping Waters: The Treaty of Waitangi and Constitutional Change. Wellington: Huia.
• Katarina Gray-Sharp and Veronica Tawhai (2011). Always Speaking: The Treaty of Waitangi and Public Policy. Wellington: Huia.
• Jones, Carwyn (2017). New Treaty, New Tradition: Reconciling New Zealand and Maori Law. Vancouver: UBC Press.
• Linda Te Aho (2017). The false generosity of treaty settlements: innovation and contortion. In International Indigenous Rights in Aotearoa New Zealand (pp. 99–117). Wellington: Victoria University Press.

• Key Māori claims, New Zealand Herald