Andrew Little, Jane Kelsey, and Ngahiwi Tomoana, on Te Ao with Moana.

Andrew Little, Jane Kelsey, and Ngahiwi Tomoana, on Te Ao with Moana.

A fortnight ago, Moana Maniapoto had three guests on Te Ao with Moana to discuss the Treaty settlements process. They were Chris Finlayson, Margaret Mutu, and Chris McKenzie.

In a follow-up last Tuesday, Moana spoke with Andrew Little (the Minister of Treaty of Waitangi Negotiations), Professor Jane Kelsey, and Ngahiwi Tomoana, a Kahungunu leader.

Here’s an edited transcript of that kōrero.


Moana: Kia ora, Minister. As the Minister of Justice and also Treaty Settlements, how just do you think these settlements are?

Andrew: The settlements are not going to be perfect, and after what is now 179 years of grievances, of the burden of grievances having been carried through generations, they are a process where, for Pākehā and the Crown, we are forced to look back, as we should do, to account for the harm done to Māori, to iwi, to hapū, to whānau, and then to look forward to build a foundation which allows us to build that future.

Moana: What do we need to do, Jane?

Jane: We need to be prepared to give away some power. And that’s the hardest thing, because all of the settlements to date have been asymmetrical. They’ve been one-sided. The Crown has effectively had the decision-making power, ultimately. It sets the terms and that’s part of what we see at Ihumātao. Not in the actual occupation now, but in terms of the way the Crown has engaged with Māori in the past.

It’s a one-sided process, and Pākehā, I think, are still so scared to give away power, to share power genuinely. And until we’re prepared to do that, then te Tiriti doesn’t come into operation.

Moana: Ngahiwi, in Kahungunu, how much do Pākehā in your area understand about the history of colonisation and the impact it’s had and continues to have on your iwi?

Ngahiwi: Very little, but growing. One of the things that the Treaty process has done has been to illuminate some of the past. So it’s been buried in hapū archives, in marae archives and government archives. So it’s been revealing to the community in general. Not what happened overseas, but what happened right on our doorstep. And it’s about taking these stories and then putting them into resources that everybody can own.

Andrew: I think mandating is the hardest part of getting the process underway because that’s for iwi and hapū. Obviously who speaks for them is crucially important. For the Crown, wanting to reach an agreement on redress, the Crown wants to know that whatever agreement reached is genuine and it’s enduring. And so a lot of time is taken. And I’ve been dealing with Ngāpuhi, so 10 years on, or no, five years after a mandate was recognised, actually it turns out that it’s not well supported. So you’ve gotta get a mandate.

Moana: Couldn’t you, as the minister, just go: “Okay, what do you want?” And they rearrange themselves into the entities that suit them. Can’t you just do that?

Andrew: It’s kind of the kōrero I’ve been having since the end of last year. Actually part of last year was about having a kōrero as well. But there are differing views, and I think the thing about any settlement, even those that have been concluded, there is never unanimity, and there is never unanimity of view right throughout the process, about what should happen, what the claim should be, and how you fix it up.

But it is about having enough support for something that lays that foundation, so that everybody at some point can turn to the future with confidence, and the Crown can start to forge the partnership that was envisaged by the Treaty. It’s happening in some quarters.

Moana: Okay, so Jane, I first met you as a professor at law school and we’ve been talking about these issues for a long time. When you look at the overlay since the ‘80s, where is the gridlock in Crown, iwi and Māori relationships? What do you see?

Jane: If we look at the evolution, for example, of the Treaty settlement policies, it’s always been the Crown saying “these are the parameters”, then let’s work out what the mandate is and what the terms of negotiation are within the Crown-determined framework.

And one of the biggest concerns, I think, now, with the focus around the settlements, is that there’s a perception that once these historic settlements are done, then that’s the end of the relationship and the constitutional questions that underpin that. Which are where a lot of these problems that we’re seeing now are emerging.

Andrew: I think there’s a lot of things that point to a different conclusion. You look at some of the results of settlements. I look at the Te Hiku accord up north. So that is about building the relationship between iwi and down to the government department level, and saying: “Right, you come here into our rohe and you’re dealing with our people. We want a say in that.”

Moana: Ngahiwi, you’ve been popping up on the news lately around Oranga Tamariki. So there’s a government ministry and a tribe trying to establish a relationship at that level. It’s still hugely challenging, isn’t it?

Ngahiwi: When I first got involved 30-odd years ago, I was asked: What is the make-up of the iwi? Before you go and talk to the Crown, ensure what the make-up of the iwi is. And we found the bastion of our iwi was hapū. And the foundation of hapū was whānau. And unless we included them in Treaty discussions, we’d never get support, we’d never get unanimity.

So we had to go to each of our 80 or 90 marae and have a hui. Now this word hui is very overused and abused and people say “too much hui, not enough do-ey”. But hui is one of our tikanga that we need to use to unlock a lot of these things. Because we go straight to the Crown process, straight to the artificial constructs that we’re forced to go through, without going through our own first. So we determined right back then that hapū would have all the land claims. Kua mutu.

Moana So, Minister, how hard is it to progress Treaty settlements in a coalition?

Andrew: For a long time, there’s been a pretty broad consensus right across parliament about Treaty settlements. The Crown does have a formula because the Crown’s gotta make sure that, over the course of Treaty Settlements, which have been running now for 25 years, there is at least some consistency, because the Crown’s gotta still be fair.

The Crown has always acknowledged that it is not providing full restitution for the harm and loss caused, but it is about providing some redress so that there can be some economic restoration and a facing of the future together.

So that’s what you do, but there is scope for creativity, too, and I think in your last week’s panel discussion, former minister Chris Finlayson talked about (that).

Moana: Ngahiwi, you’ve taken the Crown to account outside Treaty settlements. What have you been up to?

Ngahiwi: We see the Crown as our partner. We still act as if we’re true partners, and we expect the Crown to act in certain ways. And so we’ve said to the Crown, over Oranga Tamariki, for example, the iwi will take kaitiakitanga of all children in our rohe, but you can help us, not the other way.

And we say: Not one more child to be uplifted. And the Crown have come back and said: “Well, actually, we agree with you. How are we going to do it together?” So we’re working on a process of developing a way in which iwi take kaitiakitanga over all of our tamariki, mokopuna — and the Crown supports it.

So  we act as if the Treaty is in operation today. And that’s the challenge for us going forward. To move from the whānau, hapū, iwi grievance mode into front foot, and say: “Here’s where we’re going, Crown. You’re our partner. You support us.”

Moana: Jane, every week we seem to go backwards to the fundamental problem about a lack of a really authentic engagement at a high level, that would have an impact on grassroots.

Jane: In a way that’s an inevitability with parliamentary politics. It’s majoritarian. And that’s why I think finding other avenues is really important, whether it’s what Ngahiwi is talking about, whether it’s occupations — because it’s protests and occupations that up the ante, that make the politicians have to respond — or even in the Waitangi Tribunal with the contemporary claims. There are very few places that you can challenge matters like the justice, or injustice, issues, or the contemporary manifestations of colonisation that just get shunted to the corners.

Moana: Yeah, but now they’ve been shunted into the Tribunal.

Jane: Yes, they have. But, if it’s not in there, and it’s not doing your own thing, and it’s not protest, where else? Long court cases that cost megabucks? . . .

We’re going back to the Tribunal. I’m the expert for Angeline Greensill and some of the others who were original claimants in Wai 262, because the Trans Pacific Partnership Agreement has come in and tromped on the top of that and there’s a question of how to resolve it. This is one of the very few fora in which you can actually make the Crown answer.

I’m a sceptic about much of what the Tribunal can achieve, but there are so few places that you can get the Crown to answer and my role as a Pākehā in that is to provide whatever support I can to help make that process work for Māori.

Moana: So, Minister, when you see all these things going on, and you’ve got an understanding of what the challenges are that are facing iwi within the iwi Treaty settlement model, but also these big governance issues. I mean, how do you actually keep across it all?

Andrew: In the end, governments work on a mandate, or perceived mandate. They work to maintain public confidence. And in the current democracy that we’ve got, we know that there are people, opportunists, who will come in and stir things up. That’s what 2004 was about with Don Brash.

There is an audience for those who say: “Look, Māori are getting all this advantage. Can’t we all be treated equally and fairly?” There’s still an audience for that.

But I think there is a growing chunk of the population, certainly an emerging generation, who do have a better understanding. I think we’re still a long way behind about truly understanding our history. The privilege I have as minister is getting to see that.

But I think there’s a generation emerging that has a natural curiosity. That not only wants to know and understand but wants to be part of the next long journey of putting it right, so that, at some point in the future, hopefully sooner rather than later, we can say we are as close as possible we can get to the Treaty partnership that was at least talked about in 1840.

Moana: Ngahiwi, has the fisheries settlement made a difference to your people at grassroots level?

Ngahiwi: The fisheries settlement put petrol in the iwi tank, to drive the iwi engine, which then tuned into the hapū engines, and now we want to tune them into the whānau engines. I think across all iwi, it helped spin the wheels to get things moving.

But it was full and final, and we keep seeing cuts and threats of cuts to our different fisheries and to our different species. So we’ve just gotta push that back.That’s a given. We used to call it injunctivitus. We used to injunct anything that dropped until we found out it was too much burn of resources. So we go back to hui. We’d rather go to the Crown and say: “Let’s hui. This is full and final. Do not do this, otherwise you’re in trouble.”

Now there’s critical mass and economies of scale within iwi and hapū, within Māori incorporations now, to take anyone on, but we don’t want to waste resources doing that.

Unless Māori reach our full potential, this government will never realise its full potential. And so policies and practices inimical to our development will hamper and hamstring this government’s development. And we want to work shoulder to shoulder with this government rather than head-to-head headbutting. And so we’re prepared to do that in the Treaty manner.

Andrew: Totally, I agree with Ngahiwi. This is a relationship, and the Crown is the Crown, and it is forging a relationship. Jane Kelsey has talked about power sharing. In a sense, at this point in time in the 21st century, I think the Crown is getting better at running relationships that are more open to a sharing of new ideas, innovative ways of doing things, and actually looking to iwi and hapū, to say: “Look, we’ll support you, even resource you, but you do the doing.”

Moana: Are you talking about a service delivery? I hear from some negotiators that, hey, we don’t want to be in the business of doing the Crown’s bidding . . .

Andrew: No, it’s not about the Crown abdicating its responsibilities. I’m a big (advocate) for never abdicating our responsibility. Look, for example, at the Te Whānau ā Apanui settlement recently. They will now be actively involved in working with the Minstry of Education on curriculum for their people in the schools in their rohe. It’s that sort of thing now. It’s not just, do the settlement, have the relationship, we’ll meet every six months and tick these various boxes. It’s an active, ongoing engagement and set of relationships.

Moana: Jane, what is your handle on it? Are you as optimistic? What have you seen?

Jane: In the area I deal with, which is trade negotiations, it’s dismal. It’s really dismal. Because the Crown doesn’t actually see any Treaty relationship (or) any form of equality in those negotiations.

And one of the things I think is really sad is (that) when some claimants took the Trans Pacific Partnership Agreement to the Tribunal, it was hugely adversarial. There wasn’t any “we need to have a dialogue, we need to acknowledge that we did some things wrong, that we need to work out what to do”. It was really adversarial. And that sets a very bad foundation for some of the subsequent discussions you could have.

We had a really good hui on what an alternative trade strategy would look like, and we had “let’s have a strategy about building relationships, based on principles of reciprocity and that invokes tikanga and that says, let’s look after communities, and how do we build communities, and how does our trade strategy serve that — so we have a genuinely Tiriti-based approach to how we engage with the outside world and within Aotearoa. But you might as well be on the moon when you talk to Ministry of Foreign Affairs and Trade.

Moana: What are the blockages, Ngahiwi?

Ngahiwi: I believe that the western systems that we’ve been using for the last 250 years are almost tapped out. Yet, prior to that, we had a thousand years of splendid isolation where we developed our own tikanga, our own protocols, our own ways of doing things.

But they’ve never been tapped into. And I think this is the way forward for us as a country. We need to tap into our own way of doing things and bring those together and work forward together. Now, we have the processes, we have the ability, we have critical mass, and we’re unafraid of going head to head with anybody locally, nationally, internationally.

Moana: How can you become an ally, Minister, in this very positive challenge? What can you do in your position?

Andrew: I think what Ngahiwi represents is one of the products of the Treaty settlement process in that it restores a sense of confidence. Sure, it doesn’t provide restitution, but it restores mana and a sense of identity and the confidence of iwi and hapū to give impetus to their voice. And from the Crown’s point of view, the Crown always says: All we want to know is who to engage with and where to engage.

So the more the Crown, through the Treaty settlement process, can fire that engine of Māori, iwi and hapū, to give them the basis to engage — the intellectual capability and the sense of innovation and entrepreneurship is there. It always has been with Māori. The Crown hasn’t necessarily always recognised that. But, if we create that foundation through the settlement process and draw on the talents and the mātauranga and the knowledge and impetus of Māori, this country has a great future.

Moana:  I’m seeing a look on your face there, Jane. What are you thinking now?

Jane: There’s a tension between mana and rangatiratanga at the hapū level, and the power that is exercised by a state. And it’s all very well and incredibly important to have the former, but the power at the level of the state remains in the hands of the Crown. And that’s the dilemma we have, especially with the suggestion that once the historic settlements are done, then we don’t have to worry anymore.

The previous discussions around historic settlements used that kind of language. And one of the good things about the contemporary claims is that they’re saying: “Poverty is an issue. Health is an issue. Justice is an issue.” And those are issues that require a collective response.

Andrew: Jane, I totally get that. But, it’s all very well for the Crown to say, as it did 30, 40 years ago: “Right, we need help with this. Where’s the voice of Māori?” And you had Māori that were not resourced. Māori that had been ignored, suppressed, oppressed, and suddenly they’re required to engage at a high policy level.

So I get your point. I think the Treaty settlement process was about restoring the foundation, and was starting to create and recognise the capability. Now we’ve gotta engage with it. But we’re still not there yet.


This edited transcript is from the second of a two-part special on Treaty settlements on Te Ao With Moana, which screens on Māori Television on Tuesdays at 8pm.

The Negotiators starts on Māori TV on Monday, September 2.

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