Through the years, the mainstream media has had trouble applying itself to the task of calling the Crown to account for downplaying the Treaty. You get the impression that most of its influential journalists have seen the 1840 deal as undeserving of much of their time or space, unless there’s a punch-up.
The news priorities are different within the Māori media. A number of the voices coming from that direction stick to the belief that the dishonouring of the Treaty by the Crown (and the media) are at the heart of New Zealand’s problems.
One of those voices is that of Moana Maniapoto who’s on the case in various ways. One example is her documentary series The Negotiators which starts on Māori Television on September 2. And another is Te Ao with Moana which runs on Tuesday nights at 8pm.
Last Tuesday, she had three guests to chew over the little-understood business of Treaty settlements.
They were Chris Finlayson, the former Minister for Treaty of Waitangi Negotiations, who’d worked on Ngāi Tahu’s Treaty claims before entering parliament in 2005. Margaret Mutu, professor of Māori Studies at Auckland University and chief negotiator for Te Rūnanga a iwi o Ngāti Kahu. And Chris McKenzie, who was the lead Treaty settlement negotiator for Raukawa, which included their historical claims and also co-management of the Waikato River.
Here’s an edited version of that programme.
‘A small piece of justice . . .’
Moana: Chris Finlayson, what is the point of Treaty settlements? Why are we doing this?
Chris Finlayson: I think a decision was made a long time ago, in a bipartisan way, that if we wanted to be a successful country, we had to address, even confront, the issues of the past, and using the tools available to us, deal with those issues as best we can.
So, for example, I can recall the Moutoa Gardens issue in 1995. Many of the people there were crying out for justice for Māori on the Whanganui River. And, a couple of years ago, they got their wish. The Whanganui River settlement occurred, with all its imperfections.
I’m not saying that the new Jeruselum was reached in five minutes. I’m saying that we as a country have made a very deliberate choice to address those issues as best we can.
Moana: On a scale of 1 to 10, where would you put us?
Chris Finlayson: I’d put us at about 7.
Moana: Margaret Mutu, you’re a maths hotshot. Where would you put us?
Margaret Mutu: Oh, about negative 10.
Moana: Ooh, ouch. That hurt. What do you think the point of the Treaty settlements is?
Margaret: Well, the research that we’ve been conducting over the last few years has shown very clearly that it was about clawing back the legal rights that Māori had won in the Court of Appeal in the 1980s, so we could get state owned enterprises and Crown forest lands ordered back to us.
The government didn’t want that, and so it set up the Treaty claims settlement process quite unilaterally — Māori had no say in it whatsoever — and then imposed it upon our people so they could re-intrench colonisation and make sure that Māori did not control anything.
Moana: Chris McKenzie, you have been a negotiator. You’ve negotiated three settlements. What do you think the point of Treaty settlements is?
Chris McKenzie: I think from the time the Treaty was signed and the breaches began, every generation has tried to address the issues of injustice, whether it be via the Native Land Court trying to protect lands, through to the appeals courts, through to the legislative mechanisms, the Waitangi Tribunal.
And here we are at settlement negotiations, all striving for a small piece of justice to address a number of significant wrongs that have happened over a long period of time.
Moana: You’ve said in the interviews that we’ve conducted for the series (The Negotiators) that the Treaty settlements process isn’t about justice. So why have you got involved in it?
Chris McKenzie: Yeah, it’s about bit justice for the time that we’re in. And you are almost forced into a position of negotiation with the Crown. Partly because there are members amongst the tribe who feel like this is the way to some resolution. Partly because your neighbours have been involved in settlements and, if you don’t, your identity is further diminished. And partly because there are a number of small by-product outcomes which are good for the tribe. You boost your identity, you get a better understanding of your own history . . .
Moana: It’s better than nothing?
Chris McKenzie: It’s better than nothing, yeah.
Moana: Queen Elizabeth said we are strong enough and honest enough to learn the lessons of our past. What have we, as a nation, not learned, do you think, Chris?
Chris Finlayson: I still think there are some people in the community who dream of a world that never was and never could be. People who don’t recognise that a large number of their fellow countrymen had forebears who were pushed off their land — the dreadful crimes that were committed in Taranaki and Waikato with raupatu, the shonky land deals around the place.
So it’s very important to make sure that people know their full history. When I was a kid growing up in Wellington, none of this stuff was ever taught to me. When I was studying constitutional law at Victoria University in the 1970s, we never mentioned the Treaty once.
Moana: When I was at law school, too. . . . So we have Ihumātao on the table now. That’s thrown up a number of issues, like private land. What does Ihumātao crystallise for you, Chris?
Chris Finlayson: Oh, I don’t think that protest is necessarily a bad thing, but where I think they’ve gone wrong is that there was a settlement with Te Kawerau ā Maki, an individual settlement. There was also the Tāmaki-wide settlement. And it has to be the way we operate as a country that the government doesn’t step in and take private land for settlements.
Moana: Well, how just is that, Margaret? Private land is taken, it’s confiscated. Next minute, we can’t get it back. Is that justice?
Margaret: It’s entirely arbitrary and it’s part of the mythology that’s built up around the Treaty settlements process that somehow private land is not available. There’s absolutely no logical reason why that should be so.
Particularly if it’s a wāhi tapu, like it is out there at Ihumātao, there is the capability to enter into agreements with the current owners to buy that land off them at market value. Which is far better than what we get. So there is nothing stopping the government doing that, other than a political will.
Chris Finlayson: So you’d take land under the Public Works Act?
Margaret: No, that’s not what I said. I said you can approach the people who are living on land that has wāhi tapu on it, explain to them why that land is so important, and ask them. We’ve had cases of that in the north, where the Pākehā owners simply did not know, and when they were told, we have a case where a whole farm was given back to us because of that.
Moana: There was an arrangement with Fletchers to give some land back.
Chris Finlayson: You’re right, there was an arrangement. The iwi went to the (Waitangi) Tribunal to try and address the issue when the land was made available for sale by the farmer. They failed and then they sat down and they did exactly what Margaret has been talking about and secured some rights over the land. It wasn’t an absolute victory, but it was a good practical arrangement where the core land is able to be turned into a reserve.
Margaret: I don’t think it’s about victory. It’s about what’s right.
Moana: Well, Moana Jackson talks about the Treaty being honoured, not settled.
‘Soul destroying and devastating for iwi . . .’
The Treaty settlement process shouldn’t be allowed to be called a settlement because it doesn’t actually settle anything. It’s a Treaty grievance process that sometimes creates more grievances than it settles. (Ella Henry, from The Negotiators.)
Moana: Chris McKenzie, true or false?
Chris McKenzie: True. And I’d add that they’re called Treaty negotiations, but I’d hesitate to call them negotiations. Also there is quite a formulaic response to the redress that you get back that the Crown promotes, and it’s very difficult to get outside that formula unless you have some pretty forward-thinking cabinet or ministers.
Moana: Some of my friends have said if you have a flash negotiator, he can get more back. How does it work?
Chris McKenzie: There is generally a formula. So, you get three things. You get the apology section, you get some money section, and you get some cultural section.
And it’s generally preordained, based on the circumstances by which the breaches took place. How big the land loss was. How many people you have in your tribe. So, that’s calculated into a formula. You have a set amount of money, and then you set about trying to structure a settlement, within the parameters of a range of set Crown boundaries.
Moana: So, Margaret, as a negotiator, how qualified were you to become a negotiator?
Margaret: I thought I knew our claims really well. What I didn’t know was what the Crown was aiming to do. And you go in, in good faith, thinking the Crown wants to restore its honour. It’s not what the game’s about. So I was hugely unprepared and didn’t know, right the way through, like more than a decade. I was totally unaware of what the true aim was — and, therefore, I was totally unqualified.
Moana: So who are you negotiating with?
Margaret: We’re back in the Tribunal seeking binding recommendations in order to avoid having to do negotiations, because it’s a soul destroying (process), and very, very devastating for the iwi to have to go through that process.
Moana: So, as a minister, Chris, what’s the biggest challenge for a minister that’s involved in these?
Chris Finlayson: Well, I’d simply say, with the greatest of respect and affection, that I don’t think Margaret was a particularly effective negotiator, because she specialised in speaking at people rather than engaging.
And I’d say, in contradistinction, if someone had said to me, at the beginning of my time as a minister, that, during your term, you would be taking the Ureweras out of the National Parks regime and giving it its own legal personality, to be governed by a majority of Tūhoe within five years. And if someone had said to me: And you’re also going to give legal personality to the Whanganui River, I would have said: Well, you’re mad.
Well, those things happened. So with courage and determination and good negotiations on both sides, and the desire to find an outcome, then I think there is plenty of evidence that there have been very good results.
It’s not perfect. There is an imbalance of power. The government is the most powerful person in the state. And I used to feel dreadfully sorry for the negotiators who worked five days a week, say in Hamilton, and then have to go down to Ōpōtiki and look after the negotiations on behalf of their iwi. There is that power imbalance — I can’t get away from that.
But, with all the caveats, with all the complaints, basically, I think the system can and does work.
Moana: What could be improved in this whole process? Because all the negotiators that I talked to said, as you’ve mentioned, the power imbalance is incredibly huge, and the outcome reflects about one percent of what was lost. What can be improved, Chris? How can we get to a sense of justice?
Chris McKenzie: Well, the process has to be just, and I think we’ve already highlighted a number of issues around why the process isn’t just. And without it being just, there can’t be justice.
There is, and the previous minister Chris Finlayson is correct, there are a number of very, very good outcomes in some areas that happened as a result, and they should also be celebrated. In one of my tribes, the identity of Raukawa has never been stronger. We are on a pathway to rebuilding a range of aspirations that are good, but justice has not been reached from our view, and I doubt that any settlement negotiator would say that that’s the case.
Moana: So when I look at the maps, the lovely map that shows how many settlements have been, it’s about 70 to date, and there’s a little blob (to Margaret) where you are, where it’s like that beige colour. What’s happened?
Margaret: So we go into negotiations that, like Chris says, we find very quickly are not negotiations. You’re being dictated to by the Crown. You take the offer back that comes to you. In Ngāti Kahu’s case, we listened to the people and the people said: “No, this is grossly unfair. It’s grossly unjust. Go back to where you were originally, before the Tribunal, seeking binding recommendations, because you will not get justice. You will cause” — there’s already division being caused by this process amongst our iwi — “you will make it even worse if you keep going on, where two or three hapū have lands returned and the rest of them get nothing.”
Chris Finlayson: I had a number of Ngāti Kahu people who approached me off the record to say they were desperate to continue the negotiations but that you (Margaret) were a stumbling block.
Margaret: Divide and rule.
Moana: You’ve said, Chris, that the Tribunal needs an attitude change. Why is that? And is this part of the divide and rule, kind of mandating?
Chris Finlayson: No, I just think of the work that was done by successive governments with Whakatōhea, for example, and indeed, I went down to the Battle of Te Tarata commemorations and I was blasted on the paepae for not getting on with the negotiations. And I said, well, when you’re ready, we’re ready to move.
I appointed a really good Crown negotiator, Glenn Webber, to start the negotiations. We got a really good agreement in principle, in about August, 2017, and Andrew (Little) has been unable to take it through to deed of settlement because of a decision by the Waitangi Tribunal that says it was rushed for my political goals. Which, frankly, was a defamation of me.
‘The Crown forgets . . .’
Moana: How does the Crown restore trust, Chris?
Chris McKenzie: Yeah, it’s an issue that will take a long, long time, I think. And I’m not sure that, sitting on the other side of the table, that’s easy for us to answer.
We’ve just negotiated a settlement which isn’t about success, it’s about survivability. It’s about eking out the bare minimum to allow us to be who we are, and to own a couple of aspirations in a number of areas.
And the Crown, moving forward after settlement negotiations, has an important role to play. After the smiles and the cups of tea and the nice ceremonies are finished, the day after starts a new period of trying to rebuild some of that trust.
Moana: So, Chris, you’ve heard at least 59 historical accounts, and it must be quite an emotional response that you’d have to those, to find out that history. How does the Crown restore trust?
Chris Finlayson: I think Chris is absolutely right. It’s not going to be achieved in five minutes. I mean, I saw that excellent clip of yours (referring to the reconciliation ceremony between the Crown and Parikaha, in June, 2017). A fabulous day, when there were representatives of the Crown and opposition parties to sign the deed of reconcilliation.
And I looked out on that crowd after a speech where, for the first time, I acknowledged that rape had occurred by the English soldiers and we talked about a new beginning, and I had my fingers crossed, because I didn’t want the Crown, within a couple of years, to start messing things up again.
So you say, how do we measure success? I’d say, come back and interview me, if I’m still around, in 20 years time, and I’ll be in a better position to answer that.
But I will say this. There will be success, there will be a good relationship, if the Crown honours its commitments. If it doesn’t start to backslide the way it did with Tūhoe in the early years of the 20th century. Promises were made, promises were not kept, and then they were shut out of any involvement in the Ureweras, especially after it became a National Park. And then we start hearing “it’s the nation’s birthright to have a national park there”, which is a load of garbage.
So that’s what I think is so very important.
Moana: So, Margaret. Now the Tribunal is dealing with a lot of kaupapa inquiries. Health, inmates, rights. Is that an indication that Treaty settlements have failed, or are we needing to put our attention somewhere else?
Margaret: Well, you need to consider that it’s now 24 years since the first settlement was signed. You’ve had a significant number go through with the promise — one of the promises that is there in the Crown’s list of aims, is that the people will be better, that things will be better for the people. All you have to do is look at the statistics, and the statistics are very clear that things are actually getting worse for Māori.
Moana: Is it the role of Treaty settlements to sort it out, though? Is there something else that needs to be happening?
Margaret: That’s the promise that is there and that’s what you’re given as negotiators. That, if you do this, it will help uplift your people. There is absolutely no evidence that that has actually happened.
What you need to see and what the Tribunal keeps asking for, is for Māori to be allowed to control their own lives, to make their own decisions about their own lives. We see changes in programmes like Whānau Ora, like the kura kaupapa. And areas where Māori are allowed to make decisions about our own lives, is where you see improvements. You do not see it elsewhere.
Moana: So Chris McKenzie. “Full and final” — is that a thing?
Chris McKenzie: It’s definitely a thing that’s written into the deed of settlement. Is it a thing that’s written into the hearts of the people who negotiate this? No, not at all. What we know is that this is full and final for today because this is the best of today’s justice that we could get.
But, there’s a funny thing about that justice. Until it comes, you will continue to strive for it, and every generation will.
Moana: Because, “full and final”, that was an issue around the Kermadecs. What happened there?
Chris Finlayson: I’ve probably incurred the wrath of Dr (Nick) Smith by coming out and saying that he got that one wrong. Full and final has to mean full and final and it means the Crown honouring its commitments under the Treaty to iwi who signed the settlement in 1992.
Moana: Well, how come the dots aren’t being joined at the government, at Crown level?
Chris Finlayson: Why did I set up the Post-Settlement Commitments Unit? And then Kelvin (Davis) has turned it into Te Arawhiti. It’s to address the issue of the Crown not having an institutional memory.
This may sound an absurd proposition, but I tell you it’s the truth. The Crown forgets. And the Crown needs to be reminded, time and time again, that there are obligations that need to be honoured. And I think that the courts have to get involved to ensure that the Crown, if it says something, honours those commitments five to 10 years out.
So, John Key, who I think was a great prime minister, a fantastic guy to work with, was badly let down by Dr Smith on the Kermadecs issue, and we haven’t heard the end of it.
Moana: So, Margaret, what’s your response to that?
Margaret: The Crown has always had a very bad case of amnesia.
Moana: How do we sort that out?
Margaret: It’s really quite simple. You need to go back and get the facts right. Not what the Crown says our history was, but what we know the history of this country was. Sort out exactly what was promised. And that’s why you’ve got the constitutional transformation work going on now that says you must go to He Whakaputanga, the 1835 Declaration of Independence. Te Tiriti — look at exactly what it was, because that promised us a country where everybody would live in peace and harmony and respect.
Moana: (To Chris Finlayson) Do you see that as something to be explored, as some kind of exciting possibility looking at constitutional transformation?
Chris Finlayson: In due course, we’ll have a constitutional discussion . . .
Moana: I think we’ve had the discussion, we need the action.
Chris Finlayson: Yeah, but I think we’re starting to head down that path. But I don’t want to get tied up in an arid debate about constitutionalism. Look at the way the United States Supreme Court has to deal . . .
Moana: I think we’ll do things a lot better.
Chris Finlayson: I think we can do things a lot better than that. So I think change is coming.
I come back to the point that I made at the start of one of my contributions to this documentary (The Negotiators). If someone had said to me in 2008, I’d be turning the Whanganui River into a legal person — or parliament would be — I would have laughed.
So change does come.
This edited transcript is from the first of a two-part special on Treaty settlements on Te Ao With Moana, which screens on Māori Television on Tuesdays at 8pm. Part two will run on 27 August when Moana’s guests will be Andrew Little, Jane Kelsey, and Ngahiwi Tomoana.
The Negotiators starts on Māori TV on Monday, September 2.
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