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Flavell: Treaty Settlement Symposium

Treaty Settlement Symposium; 10 April 2008

Te Ururoa Flavell, Treaty Spokesperson

What does 2008 offer for the Treaty Settlements Process?

144 days. That is all that is left before the time is up. 144 days left to lodge all historical Treaty of Waitangi claims with the Waitangi Tribunal.

And then, according to which side is in power, the theory is that all historical claims will be resolved by 2014 if National or 2020 if Labour.

Although as the National Leader said on the 5th March this year when he was asked when National would settle all Treaty claims and abolish the Maori seats, he replied, who knows!

When the media pushed him further Mr Key replied, “I mean, no one can guarantee that, including the current Government, and the reason is that you have to go through a process and you need durability in that process”.

That answer has made him the target of a persistent line of attack from the Government that is summed up with the phrase, ‘slippery John’.

While they have quite rightly pointed out the perceived backflips and uncertainties evident in National’s stated position, the Government can not be too smug.

For just think about some of the statements made about the durability of the Treaty Settlement process in the last year.

The Government has been accused of making decisions in isolation based on inadequate information, criticized for a dearth of direct engagement with overlapping claimants, indeed in some circumstances failing to engage at all.

They have failed to consult adequately with tangata whenua groups with overlapping claims – an approach the Tribunal criticsed as “picking favourites”.

In the second report on the Te Arawa settlement process the Tribunal described how the Crown, in setting itself up so that it would receive accumulated rentals for the Crown Forestry Rental Trust for itself, is in breach of the principles and duties imposed by the Treaty.

The Tribunal also described the Office of Treaty Settlements as failing to act as an honest broker in the negotiation process, failing to discharge its Treaty and fiduciary duties to all Maori and failing to act honourably and with the utmost good faith.

I could go on, but you get the picture.

These delays and obvious flaws with the process, repeated in each new settlement, are not only destructive for tangata whenua, but are also bad for the nation.

In the Broadcasting Assets case of 1994, the Privy Council described the relationship between the Treaty parties as one founded on reasonableness, mutual co-operation and trust.

Instead a Courtroom mentality has been applied by the Crown, bringing in an adversarial, defensive, oppositional approach to the partnership.

You can’t even begin to consider a timeframe for resolving claims, if during the process itself the Crown is creating fresh breaches.

In this context, the role of the Waitangi Tribunal is minimized. Its findings do not carry the weight of a Court decision and in its 32-year history, the Tribunal has used its binding powers only once - in 1998 in relation to the Turangi township claim. Whether or not the Government accepts its recommendations or gives effect to them is entirely a political decision.

Another factor adding to the political frustration around settlements is the saga of the relativity clause –which provides that if the total of all Treaty Settlements should ever exceed one billion dollars, Ngai Tahu and Tainui will receive a top-up.

The Government, through former Minister Mark Burton, even acknowledged their dissatisfaction in question-time last August, in which the Minister said, and I quote,

“There is no question that the ratchet clause in those two settlements does, on a daily basis, impact on and make more complex and difficult subsequent claims”.

And indeed, just last Thursday, Ngai Tahu leader Mark Solomon confirmed that a $400 million central North Island settlement would take the total Treaty settlement payout to well over $1 billion, stating, "We'll be invoking our relativity clause if this deal goes ahead. We've been told the current Treaty total payout figure stands above $700 million”.

The Maori Party believes in the interests of moving forward as a nation, it is time to buy out the relativity clauses with Tainui and Ngai Tahu.

Wellington lawyer, Tom Bennion, agrees that such a strategy would be far more effective for settling claims quickly rather than making them miserly in order to fit within the limits of the infamous fiscal envelope.

But he warns, “this might be possible if a new and more generous fiscal envelope were to be negotiated – not likely in the current electoral climate”.

A new approach has been tentatively suggested with the use of assets such as forests rather than monetary settlements. This was a concept we introduced last May with our Treaty package, in presenting the concept of joint ventures with state owned enterprises and other innovative approaches to respond to settlement priorities.

Another way forward that has interested us, was recommended by Professor David Williams who suggests that rather than go down the path of unseemly haste, with both older parties clamouring for more popular dates and timeframes, all parties should engage in a longer conversation.

There was a recommendation also that the United Nations Special Rapporteur on the rights of Indigenous peoples, Professor Rodolfo Stavenhagen, recommended, urging a review of the settlements process. The recommendation in his report was that “the Crown should engage in negotiations with Maori to reach agreement on a more fair and equitable settlement policy and process”.

David Williams has given more detail to this recommendation, suggesting that the conversation must be a genuine one, not a soliloquy by Maori with the Crown’s general position already predetermined regardless of the grievances disclosed.

We are tired of being greeted with a ‘talk to the hand’ approach.

The Waitangi Tribunal hearings have been a powerful and incredibly moving forum for those who choose to listen.

But what we see happening more frequently is the push from Government to stay away from the Tribunal and place pressure on groups to go to direct negotiation.

This all came to a head in June of last year when the Tribunal ordered the Government to pull out of direct negotiations with Ngati Whatua o Orakei because of the way in which the process was impacting on Ngati Te Ata, Ngai Tai ki Tamaki, Te Kawerau a Maki, Marutuahu, the Hauraki Maori Trust Board and Te Taou. The Tribunal described the process as cavalier, unfair and that officials acted in a generally un-cooperative manner.

In fact so severe were the Tribunal’s criticisms that they called the Crown’s process with Ngati Whatua o Orakei the most flawed settlement negotiating process it had ever seen.

Well that was until a week later when they found serious flaws with the way in which the Crown treated non-settling Te Arawa groups, concluding “the preservation of tribal relations has been adversely affected”.

Lest there be any doubt, this is no good.

But never fear, the Maori Party is here, and we believe our six suggested solutions will take us some way forward as a nation.

These strategies are given more detail in the conference paper, but in brief:

* Break the fiscal cap which has applied to the treaty settlement process;

* Buy out the relativity clause;

* All claimants to be guaranteed a minimum quantum, a basic level of resource to ensure that opportunity for development is not compromised;

* Innovative approaches to other forms of development will be considered;

* Establishing an independent settlements authority to improve the settlement process from a Maori perspective, ensure the claims are settled earlier and fairly, and that there is a broad consensus for the process;

* And more resourcing for the Waitangi Tribunal so that it can work at full capacity.

Finally, I recall the findings of the New Zealand Maori Council vs the Attorney General, some twenty one years ago this year. In summing up, Justice Richardson suggested, and I quote

“the responsibility of one Treaty partner to act in good faith, fairly and reasonably towards the other, puts the onus on a partner, here the Crown, when acting within its sphere to make an informed decision”.

Let the Crown be well and truly informed, that the process of responding to Treaty settlement claims to date has not been in good faith, has not been fair, and has not been reasonable.


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