David Williams: The real importance of the Treaty settlements isn’t the money

by Dale Husband
Sun 23 Apr 2017
14 min read
5
  • David Williams with his wife Helen McNeil at the Takaparawhau 30th anniversary in 2008.

Auckland University law professor David Williams — currently a Visiting Scholar at Oxford — has applied a love of history and a sharp legal brain to researching the history of many Treaty claims.

Here he talks to Dale about his education in te ao Māori — which began when he was a university student looking to find out more about his own country before leaving as a Rhodes Scholar — and his long association with Ngāti Whātua.

 

Kia ora, David. So there you are, back in England, this time as a Visiting Scholar at Oxford — well away from your usual haunts in the law department at Auckland University, and some distance, too, from where you got your start in life in Aotearoa. Can you tell us where that was?

Here’s something I wouldn’t have been able to say when I was younger: Ko Raekatia te maunga. Ko Manawatu te awa. Ko Ngāti Pākehā te iwi. Ko Rawiri Wiremu ahau. That tells you the Raekatia range in southern Hawke’s Bay, at the headwaters of the Manawatu river, is where I’m from. A hill country farm.

In those days, in the late 1940s and ‘50s, it was very much old-style Hawke’s Bay settlers on sheep farms. I knew only a few Māori kids, but the shearing gang was all Māori. They used to be hard drinkers — and then they all became Mormons, so it was hot chocolate after that. But, apart from the shearers, I had a very Pākehā farming background.

How did your family come to be farming in Hawke’s Bay hill country?

In the 1890s my grandfather won a ballot for a farm in what was then bush country in southern Hawke’s Bay, northern Wairarapa. He and a lot of other men who won land in the ballot walked from Napier and Hastings down to the area that’s between Porangahau and Dannevirke.

Then they burned the bush. They burned these incredible square miles of native bush — though they saved enough timber to build their houses and woolsheds and put in the fence posts and batons. The deal was that, if they did that within five years, they owned the land. They didn’t pay for it in cash. They paid in labour and improvements. It was part of the Liberal government’s settlement policies of that time.

My grandfather farmed it for years, and my father after that. I was supposed to follow on, but I got the idea that I’d like to go to university. Instead, it was sold to a man I went to school with. It’s still a beautiful hill country farm.

And your people, back before that farming venture?

Well, the first of my ancestors arrived in February 1840 on one of the ships that came into Petone, and the last of them arrived in 1870. So my lot have been Pākehā of Aotearoa New Zealand for a while now.

But I have to say, I’m not related to any of the famous Williamses. I always get asked: “Are you one of the Williamses?” Which means: Am I a descendant of Henry “Karuwha”, the “four-eyes”, Williams, who translated the Treaty? Or am I a descendant of Bishop William Williams, Henry’s brother who was known as Wiremu Parata? But no. I’m not. Even though I’m a Hawke’s Bay Williams and I did go to an Anglican church school.

As you were growing up, what tended to be the subject of discussion around your family table? Was it politics?

No. The talk was mostly about farming. The only political talk I can remember is about how, for example, some stock and station agencies screwed farmers during the Depression — and some of them lost their land. I was born in 1946, so the Depression still held pretty raw memories for many of the farming folk as I was growing up.

Sport was a different story. Funnily enough, it was my mother, Dorothy — or Dot as everyone called her — who was the sports fanatic in the family. My dad, Vernon, was a true farmer who just loved to be out on a horse or in the Jeep, up on the range looking after the sheep and beef cattle.

But Mum was an avid rugby supporter and was really pleased that I played a lot of rugby in my life. I was a prop when younger and then a loose forward later. Mum even came on to the field one time in Wellington while I was playing a club game for Varsity out in Petone. She was waving her umbrella and threatening a guy who’d donged me.

Any siblings?

A younger brother, Gary, a water engineer who’s done a lot of work on ecological projects. He was a member of the Values Party when it was first formed, and he’s still very strong on those sorts of issues. It’s interesting that out of a conservative Hawke’s Bay farming family came two sons, one of whom finished up focusing on indigenous rights and the other working on ecological issues.

You went off to Wanganui Collegiate, then to law school. What steered you towards law?

Well, law truly was an accident. I went to university because I loved history. I got that love of history from two teachers at Wanganui Collegiate, Murray Davis and Jim Wallace. They were quite conservative men, but they gave me a lot of history to chew on. And that’s what I wanted to study.

So I did a conjoint law and arts degree — which wasn’t common in those days. I didn’t actually intend to be a lawyer. It was more the intellectual challenge. At one stage I thought I might be an Anglican priest. Later on, it turned out that I did become an Anglican priest. But I’ve never been a parish minister.

I just didn’t want to be a farmer, and I did want to travel. Then I found out that I could do quite well in my exams and I finished up getting a scholarship that took me to Oxford.

When you were studying history at university, what topics were available then?

Imperial history was the only history I was taught. In my final year at Victoria, I did three Stage Three papers. One was about the old dominions and the way in which Canada, Australia, South Africa and New Zealand emerged as independent countries out of what had been British settler dominions. One was a paper on decolonisation in West Africa. And the third was on the end of the British Raj in India. Not one single jot of New Zealand history at all.

After I won the Rhodes Scholarship and before I left the country to go to Oxford, I thought I really ought to do something that told me a little bit about my own country. So I enrolled in an introductory course on Māori society, which was taught by two Pākehā. One was Joan Metge and the other was Bernie Kernot.

In 1969, a whole group of us keen people — predominantly Pākehā but a significant number of young Māori as well — went on a study trip around Tai Rāwhiti. Five days going north, staying at different marae, and five days coming south.

We had Pine Taiapa, the tohunga whakairo, as our kaiārahi, so we got a Ngāti Porou view of the world, which was a fantastic introduction to aspects of New Zealand society that I’d never come across before. I think of St Mary’s, Tikitiki — oh, ātaahua — so beautiful.

So that was my introduction to Māori society in a way which was beyond my contacts with the shearers I knew when I was growing up. But the other thing, of course, about going to university in the 1960s, is that you could come from a really conservative school like Wanganui Collegiate and take part in all sorts of activities that challenged any preconception you had. Such as the Vietnam War demonstrations.

I arrived a very conservative young man and, by the time I’d finished my courses, I was a marcher on the streets, going to the Peace, Power and Politics conference in 1968 and that sort of thing. I started off as a young National and finished up as a sort of socialist.

Since then, you’ve had a long association with Takaparawhau and Ngāti Whātua. Also a long association with Tanzania. They’re a long way from Whanganui and from Hawke’s Bay. How did that come about?

Odd as it may seem, Dar es Salaam and Takaparawhau are, for me, very intimately connected. When I finished my studies in England, I wanted to do something different. I didn’t just want to go back to where I’d come from. I wanted to see a bit more of the world.

In the early 1970s, a lot of young people were interested in socialism. East European communist countries didn’t look very attractive as models for the future. In Africa, though, there was a new view of the world and Tanzania was one of the leading lights. So I went to the University of Dar es Salaam.

At that time, the independent African states were very concerned about the South African government’s apartheid policies. About Ian Smith’s regime in Rhodesia too. And about the Portuguese control of Mozambique and Angola.

And what was New Zealand doing? New Zealand was one of the main countries that had friendly contacts with the racist governments of southern Africa. So, as a New Zealander, a white New Zealander, I was constantly challenged about the history of colonialism in my own country — and asked why our government was so friendly to apartheid South Africa.

They’d ask me questions like: “When’s New Zealand’s independence day?” In Tanzania it’s the 9th of December. Everyone knows that. They celebrate it every year. So they asked what day we celebrated.

Well, we celebrate Waitangi Day. What’s that exactly? It’s when a Treaty with the British was signed. Oh, so you celebrate the arrival of colonialism? I’d say: “Well, we don’t think of it quite like that.”

Anyway, living outside your own country can help you learn what you didn’t know about your own country. And that was certainly the case for me.

Then, a few  years later, you were back to Auckland?

When I came home to Aotearoa in 1974, I joined a group called CARE — the Citizens Association for Racial Equality. We were best known for our anti-apartheid stand, but we weren’t just against racism in South Africa. We were also against racism within our own society.

There were prime ministers who said regularly on Waitangi Day that New Zealand was the happiest multiracial society in the world, and what a wonderful society it was. And then along came the Māori Land March and, through meetings before that march, I got to know Joe Hawke and others of Ngāti Whātua.

Then in 1977 and 1978 was the occupation at Bastion Point, Takaparawhau. In fact, I was the guy that said to Joe Hawke that we should do something. And he said: “Yeah. I think we should occupy the Point.” That 18 months was an education. My first real immersion in te ao Māori.

I became involved as someone who turned up to the Monday meetings, but then also as someone who was part of the legal strategy team. I was there with the leaders at the Supreme Court in 1978 — and I’m still involved. So it’s been a lifetime of engagement with the whānau and hapū of Ōrākei.

As you know, in the 1970s they had only one quarter of an acre of land in their name — in the whole world. It was the urupā in Okahu Bay. They were all living in state housing. And the marae wasn’t a Ngāti Whātua marae. It was a national marae owned by the government. A very different world from now, where Ngāti Whātua Ōrākei so actively hold the mana whenua for the central isthmus of Tāmaki Makaurau.

You’ve become renowned for your understanding of Treaty issues. But most of us have come through education systems that barely touched on that part of our history. So what, as New Zealanders, should we all know?

One of my contributions has been to write a book Te Kooti Tango Whenua — which means the land-taking court. It’s a history of the Native Land Court in the 19th and early 20th century. I wrote that with the assistance of the Crown Forest Rental Trust to provide background information for claimants who were gearing up for historical claims in the late 1980s and early 1990s.

Doug Graham, who was then the Minister of Justice, recognised that the confiscations, the raupatu, after the wars of the 1860s and 1870s were a big issue. But he wasn’t at all convinced that there were any other claims of great significance.

The point that I picked up from Hugh Kawharu, from his work on Māori land tenure, was that the Native Land Court was the main engine of destruction of Māori attachment to land, Māori control of land, and Māori connection to their whenua.

The Native Land Acts from 1865 are a big issue that most people who haven’t studied history know very little about. In some ways, all those who suffered the raupatu — having their land confiscated without payment and being left more or less landless — had a grievance in common about the way colonisation worked.

But in most of the country it was the Native Land Court that deprived Māori of land ownership, whether they liked it or not. They did it in a whole range of ways — through survey charges and partitions, putting in roadways and so on.

And that process caused great divisions within hapū and whānau. There was the pupuri whenua people and the tuku whenua people. The pupuri whenua people wanted to hold on to the land. The tuku whenua people were saying: “Look, we can’t do anything with this land anyway. It’s economically useless. Let’s just hand it over to the Pākehā and get some money for it in the meantime.”

That incredibly divisive process, I think, is a most important element of the history of Aotearoa New Zealand. And it needs to be better known. Of course, it’s there if you read the Waitangi Tribunal reports. But not too many people do that  — which is a pity.

Not enough people turn up to Waitangi Tribunal hearings either. But the hearings are public events. Any person, including any Pākehā, can turn up when the tribunal is hearing claims. And they’ll hear historical reports that give all sorts of details that really ought to be widely known. Especially about the Native Land Court — the land-taking court.

On the plus side, there seems to be a greater appreciation of cultural dimensions when laws are drafted now — and a greater regard for the principles of the Treaty. And a number of people are hoping that, at some stage, we’ll see a merging of tikanga Māori and the Westminster system. Are we witnessing the beginnings of that?

I’m a bit wary about the merging concept, because merging tends to be a one-way street — plenty of recognition for colonial values, not so much for indigenous values.

True, there are ways in which Māori values have been incorporated in some respects into our state legal system, such as in the Resource Management Act, and the way in which whanaungatanga has influenced family law. And there are some ways that tikanga has been recognised as itself a source of New Zealand law in a formal way.

But I was involved with Patu Hohepa, Waireti Norman and Richard Sutton from the Law Commission in a project in the 1990s on the law of succession. One of the issues that we tried to push, and it was partly accepted by the Law Commission, but nothing came of it, was that there needs to be areas of law that are ring-fenced so that tikanga Māori applies when it’s Māori issues between Māori and Māori and it involves things that are of importance to te ao Māori and to te reo and everything that is taonga to Māori.

That should be governed by tikanga. And you shouldn’t be able to jump the fence all the time if you disagree with the latest hui decision, and go to one of the national courts to try to get a different result.

If tikanga is to remain strong and meet modern circumstances, the state legal system needs to ensure that there is status for that tikanga to continue to apply and evolve. And not just to merge it into the state legal system. I’m talking about a plurality of laws.

This happens in other parts of the world, such as Canada and the United States, where indigenous justice systems operate. We move into that partly within our state legal system with the Rangatahi courts. But my concern is that tikanga should be something from Māori, by Māori, for Māori.

What do you make of the Treaty settlement programme so far? And what are your thoughts on the recent settlements to do with Te Urewera and the Whanganui river? 

I’ve done a lot of reports for the tribunal. I’ve also been engaged in Treaty negotiations with the government — for instance, on the side of Te Uri ō Hau and Ngāti Whātua ō Ōrākei. And I believe the Treaty settlement processes and settlements have been really important.

They’re important, however, for reasons that have nothing to do with the financial quantum which is what the media reports always used to focus on. The financial quantum is extremely modest if you consider the scale of the losses in the past. For example, I think Tainui reckoned that about 4 percent of the value of their confiscated land had been returned in the financial redress.

But the cultural redress can be significant, such as official recognition of original place names, or the right of access to places of cultural significance. For a long time there was a bit of a straitjacket around Treaty settlement processes, and they all had to more or less follow the model that was laid down by the 1995 Ngāi Tahu and Tainui-Waikato settlements.

In recent years, though, there’s been greater flexibility such as the creation of a separate legal personality for Te Urewera. It’s no longer a Crown-owned national park. Neither is it Tūhoe-owned. It has a legal personality in its own right. That’s a very significant innovation.

Te Awa Tupua for the Whanganui river follows that pattern as well. Having given talks on this here in England and also in Australia, I know that many people, particularly those with concerns for the environment, see this as a significant innovation.

So how chuffed should we be with our innovations?

Overall, I don’t think New Zealanders should pat themselves on the back too much. The Treaty settlements are quite modest acknowledgements of the impact of colonial policies in the past. And it would be better if more Pākehā people got on board with the issues rather than assuming that the government is dealing with all that business, that the settlements will be over soon, and that “we can all get on with life and forget about it.”

Well, I don’t think we can forget about it. A good example right now is the Waitara Lands Bill, where the New Plymouth District Council and the Taranaki Regional Council are trying to freehold lands in the Waitara area which include the original disputed Pekapeka block over which the Taranaki War broke out in 1860.

This land was later confiscated and gifted by the government to the harbour board and to the councils. And now they want to make significant capital gains by selling some of those lands. We can’t deal with that issue unless we know some of our history. It’s there in the Waitangi Tribunal report on Taranaki. But there are people who’re trying to deal with the current issue who aren’t taking note of the history.

Finally, I wonder if you might reflect for a moment on the part you’ve played as a teacher of many students who’ve been forming the new generation of lawyers. I imagine you’ve lent a hand to a number of young men and women with very sharp minds.

Well, Annette Sykes and Moana Maniapoto spring to mind. And I recall one remarkable Māori land law class which was my privilege to teach — and which included Gina Rudland, Sarah Reeves, Angela Armstrong and Shane Solomon.

The colleague who took over from me in teaching that course was Nin Tomas. And Nin and I enjoyed many feisty kōrero about the place of tikanga in the state legal system when I supervised her PhD.

Sadly, of those five bright young Māori leaders, Gina, Angela and Nin have all died at far too early an age. Moe mai ra koutou.

 

© e-Tangata, 2017

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