Justice

Foundation Documents Challenge Government Policies

By CCANZ / 24 September 1995

The following is a paper prepared in 1995 by CCANZ, which, while now out-of-date, provides an historical context for issues surrounding Maori in government.

Introduction

This paper indicates how the two foundation documents in the life of Aotearoa/New Zealand challenge a range of government policies. It also suggests a way into the future that takes the documents seriously.

Treaty claims settlements

When the Labour government came to power in 1984, it responded favourably to a growing call for the recognition of Treaty rights by Maori, adopting strong treaty rhetoric. However, when the desire by Maori for the return of land, forests, fisheries and waterways unjustly acquired in violation of the Treaty was seen to clash with Rogernomics, which envisaged their transfer to the private sector, it was clear that Maori and the Crown were on a collision course. As a result Labour distanced itself from its earlier position on the Treaty. Ever since, governments pursuing the liberal economic agenda have sought to rein in the Treaty settlements process.

Waitangi Tribunal

It is important to realise that the Tribunal was established as an instrument of the state, being a court of enquiry, with all its members appointed by the government. It is also subject to the findings of a higher judicial body. There was a time when it stressed the belief that Maori never ceded their sovereignty. Following the State Owned Enterprises case before the Court of Appeal in 1987 it has spoken of a cession of sovereignty that took place with the signing of the Treaty.

In 1993 government passed the Treaty of Waitangi Amendment Bill, which provides that the Tribunal shall not recommend that the Crown acquire ownership of any land or interest held by any person. This was unnecessary as the Tribunal can only make recommendations which the government is free to ignore except where a private owner has bought State Owned Enterprises land with full warning of the (remote) risk of resumption if the Tribunal so orders. This action makes it clear that the Tribunal is an instrument of the Crown that will be reined in should it threaten Crown interests. Despite protestations to the contrary, it is clear the Waitangi Tribunal is being increasingly marginalised by the government. Its desire for direct negotiation with iwi, the Sealord deal, the land bank and fiscal envelope, together with a cut off date for the lodging of claims, are all evidence of a sidelining of the work of the Tribunal. It has been struggling to retain a significant role for itself. It is clear that the Waitangi Tribunal cannot deliver mana I te whenua and tino rangatiratanga to Maori.

The fisheries claims and Sealord

Early in its term of office the National government declared a goal of settling all Treaty claims by the year 2000. In mid 1992 the government was presented with a means of putting an end to fisheries claims through the Sealord deal. The Crown’s view is that all Maori claims over commercial fishing are now deemed to be fully and finally settled. No case can be tested either before the courts or the Waitangi Tribunal. So the Sealord deal cannot be challenged.

Traditional Maori fishing rights were protected under section 88(2) of the Fisheries Act, which has now been repealed. Such rights will now be the subject of regulations determined by government. Tiriti fishing rights have been redefined to mean a share in a commercial fishing company driven by profit and which might have some trickle down benefit for some iwi, and the right to be consulted over various fisheries management decisions on the government’s terms.

Consultation will be with persons the government deems appropriate, with the government making up its own mind in the end. The nature of the consultation (or the lack of it) over the Sealord Deed of Settlement has been questioned by a number of Maori. Much of it was deemed commercially sensitive and therefore unable to be discussed with iwi. The Crown saw it as an opportunity to set in place some finite limit on the Treaty settlements process.

While Maori were successful in moving the settlement sum up from the $50 million the Crown wanted to settle for, and worked hard to get 50% of the quota allocation, it is significant that the Crown was able to do this for as little as $150 million – one third of the amount the Crown wrote off in the Bank of New Zealand transaction. Late in the day a clause was inserted into the Deed of Settlement by the Crown which stated, “Maori recognise that the Crown has fiscal constraints and that this settlement will necessarily restrict the Crown’s ability to meet from any fund which the Crown establishes as part of the Crown’s overall settlement framework, the settlement of other claims arising from the Treaty of Waitangi.” (This is the origin of the fiscal cap for Treaty claims settlements.)

The bill finalising the deal was rushed through parliament under urgency thereby preventing debate before a select committee. Today Maori are divided over how fishing quota will be distributed to iwi. The battle between mana moana and population based distribution is drawing energy away from other issues and pitting Maori against Maori. A classic case of the kawanatanga divide and rule strategy! Clearly the mana Maori motuhake and tino rangatiratanga of Maori with regard to fishing has been denied.

Fiscal envelopes

The latest scheme to achieve the government’s election promise involves what is called a fiscal envelope, which contains a sum of money that it is prepared to pay to settle all claims, widely believed to be $1 billion. Claimants will have to fight over the contents of the envelope, a policy that has its origins in the Sealord settlement. Given government commitment to budgetary restraint, Maori claimants will again be asked to accept less than just settlements.

A further aspect of the fiscal envelopes policy is the ‘land bank’, whereby surplus Crown properties will be used in land claims settlements. As these properties are notified, iwi will have just thirty days to lodge a claim. This is insufficient time for iwi to research a claim to that land, so further injustice may result. The government has also set a claims cut-off date of June 1996 after which no claims relating to last century, that are not registered with either the Waitangi Tribunal or the Crown will be considered. Many iwi lack the resources and organisation to prepare claims to meet such a deadline. Imposing an arbitrary cut-off-date will create further injustice for Maori. Meanwhile the government will claim it has acted in good faith, has demonstrated financial responsibility and has complied with its election promise. Any failure of the policy will be blamed on Maori. (Sealord revisited!) There is no mana Maori motuhake and tino rangatiratanga here.

Leaked papers outline Crown position

A draft of the government’s Treaty claims settlement policy contained in a leaked confidential document, indicates that settlements will be on the basis of how Maori used or proposed to use land and resources in 1840, rather than their present value. It will not compensate for the loss of potential from resources that had not been considered at that time. This rules out compensation for loss of resources such as coal, oil or geothermal energy, associated with land illegally taken by the Crown.

In considering such claims existing private rights to the resource will be protected, including leases and resource consents. This means all benefits will have been extracted from the resource by the time it is available for claims settlement. Conservation lands will not be readily available for settlements. In the case of Tainui this means they will not get land returned for land confiscated, as over half the Crown land in its area is in the hands of the Department of Conservation.

The fiscal envelope will contain a limited sum – the much guessed $1 billion. Affordability rather than justice on the basis of full compensation for resources taken unfairly will be the basis of settlement. The total amount will be further eroded by a number of items to be charged to the fiscal envelope. These include: gifted land reclaimed by former owners; the cost of the Sealord settlement; the full cost of land and resources returned; the current market value of government assets returned to claimants, including forestry settlements and land returned by order of the Waitangi Tribunal; the cost of landbanks, including their administration; the cost of claimants research, negotiation and technical assistance which have been reimbursed since 1992.

Maori reaction

A number of concerns have been identified by Maori. Tainui’s Bob Mahuta, responding to the content of the leaked paper, said it was “an attempt by the Crown to keep the sordid history of illegal confiscation swept under the carpet… there is not going to be a full and final settlement if they are going to adopt this approach.”

Taranaki’s claims research co-ordinator, Peter Adds, said, “with so many items coming out of the fiscal envelope there is no possibility of a one-off settlement… the notion of a fiscal envelope is one we are not prepared to tolerate… if they want to implement the things they say they are going to, there is no way iwi are going to be content to accept them.”

Concern has also been expressed over the exclusion of women and youth from the settlements process as well as from any benefits that may follow. Any form of full and final settlement means that rangatahi lose their generational Treaty rights. They have responded by forming groups to protest the whole process and the role of their leaders in entering into these deals. The role of middle aged to older Maori men and their claimed mandate to represent Maori in the whole process is increasingly being questioned. Another concern is that mana is being traded for money.

Annette Sykes has stated, “An important part of the future settlement process is that we are starting to be asked by the Crown to equate mana with money. The implication of this I find distasteful. For you can never satisfy the confiscation of taonga and wahi tapu with money or resources in kind.” Clearly kawanatanga is determined that it will be in control of the process and will seek to co-opt Maori to that end. There is simply no place for the recognition of mana i te whenua and tino rangatiratanga.

Privatisation of power

In Aotearoa/New Zealand, political and economic power has traditionally been in the hands of the state. Over recent years there has been an ideological shift seeking the privatisation of the power that was once the prerogative of the state. This has led to massive restructuring of state departments and agencies. In the process there has been a significant privatisation of power. The major shifts from state to privatised power have been:

• deregulation of the financial market so that market forces rather than the state drives the economy
• removal of trade protections, leading to the importation of cheap goods that leads to the crippling of local industries
• low inflation and the reduction of public debt as the major goal of fiscal policy, despite the enormous social cost of reducing government spending in areas of social welfare, housing, education and health
• commercialisation and privatisation of railways and forestry with massive staff lay-offs
• transfer of control over the country’s financial, telecommunications and transport industries to foreign ownership and control
• deregulation of the labour market (Employment Contract Act) has driven down real wages, left trade unions relatively powerless and contributed to high unemployment
• universal welfare provisions replaced by targeted benefits and minimal income support

These and other moves facilitated the privatisation of state power by the transfer of power over resources and decision making to private capital and private individuals. Jane Kelsey states: “If deregulation of the economy vested virtually unrestrained market power in the hands of international capital, withdrawal of the state from regulating market behaviour and social outcomes bolstered the ability of certain individuals to exercise economic, social, gender and cultural domination over others.” The state’s ability to shape economic policy is now limited. The determiners of our economic future are now located in off-shore financial centres.

Who suffers most from this transfer of power into the relatively invisible and unaccountable hands of private corporations and private individuals? It is Maori, women, the poor, the young, the old, unwell and differently abled. Their suffering had been lessened but not eradicated under the welfare state. But when cuts and adjustments were made to welfare, unemployment and health benefits in 1990 and 1991, there was widespread disillusionment and anger. Pakeha felt that democracy had been betrayed and the country traded off to big business. Many Maori felt betrayed by yet more empty promises to redress their grievances. They were being victimised by the latest variation of an economic and political system built on their continued oppression and stolen resources.

Constitutional Reform

Ironically the result of the efforts of the rich and powerful to diminish the sovereignty of Aotearoa/New Zealand has been the resurgence of nationalism both among Maori and Pakeha. Pakeha want a sovereignty based on the settler nation state, with power concentrated in the hands of the heirs of the original Pakeha settlers. While for Maori self determination lies in the mana i te whenua and tino rangatiratanga of the Declaration of Independence and the Treaty of Waitangi. However there is room for alliances to be formed and built on. Constitutional reform offers just such a prospect for a better and fuller life in Aotearoa/New Zealand for both Maori and Pakeha.

Our government seems to be concerned that self determination might be understood as guaranteeing the right to full independence as a separate state. This is part of a fear within some governments that self determination will lead to fragmentation of nations that would be a threat to world peace, security and economic stability. However as Professor Glenn Morris of the American Indian Movement of Colorado stated, “Global conflict and tensions between peoples and stales do not erupt because peoples are free to exercise their right to self determination, rather it is the absence of freedom and the denial of the rights of peoples to determine their destinies that provokes mistrust, tension and conflict … states must realise that if they had seriously and consistently respected the rights of indigenous self-determination at any point to the present, there would be little need for this (UN) Working Croup now.”

The position being taken by the New Zealand government is contrary to the mana i te whenua and tino rangatiratanga recognised in the Declaration of Independence and guaranteed in the Treaty of Waitangi. As Moana Jackson has said, “It is our belief that our people need to know of the statements being made at international fora by the New Zealand Government, especially when they clearly seek to deny us those rights which are consistent with both the Treaty and the developing consensus of international indigenous law … Indeed if the Declaration is to be a meaningful statement of international norms to which governments and indigenous peoples can refer, it is essential that the ideas propounded by the Crown be challenged.”

There have been a number of calls for a reassessment of the place of Maori in the political life of Aotearoa/New Zealand. The need for a consultative dialogue between Maori and the Crown regarding constitutional reform has been taken up by churches, iwi and a variety of Maori groups. The need for such dialogue has not been taken up by the Crown. The idea of a power sharing partnership that lies at the heart of political arrangements in this country is one that has unsettled successive governments.

Acknowledgments

In the preparation of this paper the analyses of Manuka Henare, Moana Jackson, Jane Kelsey and Annette Sykes have been particularly helpful and are gratefully acknowledged.