The unintended consequences of treaty settlements

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Hobson’s Pledge says that wherever it can be reasonably established that the Crown unlawfully confiscated property from any individual or group, compensation should be paid, provided however that any such compensation should be “full and final”. 

However, of the 75 settlements detailed below, only 31 involve land confiscation. Areas in which land was confiscated were limited to Taranaki, Waikato, the Bay of Plenty, and some areas in Gisborne and northern Hawke’s Bay.

Treaty breaches alleged by the remaining claimant groups are mainly to do with the sale of land, with claimants wanting more money. Confiscation claimants also complained about land sales in their areas.

Although confiscations were highly contentious at the time, with substantial opposition in Parliament, they were nevertheless legally carried out under the New Zealand Settlements Act 1863.

Those of us living in the relative peace and security of the 21st century often overlook the fact that 19th century settlers were fighting a war they could not afford to lose and the threat of land confiscation had a real impact on which side tribes chose to support.

Another overlooked fact is that the total financial amount involved in each settlement, referred to as the “quantum”, does not reflect the gravity of the alleged treaty breach. The quantum is calculated by following a simple formula which is essentially to do with the land area the tribe claimed to own in 1840 and the number of tribe members today. (1)

In other words, the tribe that claimed the biggest land area in 1840 and the most registered members today should get the biggest pay-out. Moreover, every claimant group may expect a pay-out.

The divisive process of Treaty settlements began more than 30 years ago, when a Labour Government made the highly unusual decision to commission a seven-member tribunal to settle all Maori grievances back to February 6, 1840, the date the Treaty of Waitangi was signed.

Maori Affairs Minister Koro Wetere said this was to address “the mounting tension in the community that springs from the sense of injustice that is harboured about the grievances that are outstanding”. (2)

The first small settlement, at Waitomo, involving a $1 million loan, was achieved in 1990, followed by a commercial fisheries settlement worth $170 million in 1992. The first big land confiscation settlement, with Waikato-Tainui, also worth $170 million, was agreed in 1995.

There was a row over how much this was going to cost. The Bolger National Government proposed a cap of $1 billion, calling it a “fiscal envelope”. Tribes objected and the cap was dropped in 1996.

Nevertheless, the two big tribes that had settled early negotiated into their settlements a clause that entitled them to a proportion of all settlements over $1 billion in 1992 dollars.

Waikato-Tainui would get 17 percent of all future treaty settlements and Ngai Tahu 16.1 percent. Top-ups started in June of 2012, when the $1 billion mark (in 1994 dollars) was reached. The amounts of these ongoing top-ups are not reported by the Government, although they can be found in the annual financial reports of both tribes.

The Office of Treaty Settlements soon operated like a well-oiled machine. By March 31, 2016, a total of 61 treaty settlements with a financial redress total of $2.47 billion had been completed with a further 55 in other stages.

The process is explained in detail in the “red book” titled Healing the past, building a future, which is published by the Office of Treaty Settlements. (3)

Of course, the promise of cash brought a flood of grievances. A total of 2034 claims were registered by September 1, 2008, the deadline for historical claims. This compared with just nine grievances a delegation of chiefs took to Queen Victoria in 1882.

Investigation of grievances has a long history with investigations by land sale commissioners in the 1840s, confiscation compensation commissions in the 1860s, the Native Land Commission in 1920, and others.

A further commission chaired by Supreme Court Judge William Sim in 1926 led to a series of settlements – including the Ngai Tahu Claim Settlement Act 1944, the Taranaki Maori Claims Settlement Act 1944, the Waikato-Maniapoto Maori Claims Settlement Act 1946, and more.

A number of claims have been settled a number of times. For instance, Ngai Tahu’s $170 million settlement in 1998 was the fifth settlement originally generated by a single complaint to do with the tribe’s sale of 20 million acres in 1848, known as the Kemp purchase. The complaint was about reserves not being marked out.

Both the Treaty settlement policy and process ignore basic assumptions we have about our democratic system.

Democracy is based on the idea that everyone should have equal rights and be allowed to participate in making important decisions.

At no stage has the New Zealand public been given the opportunity to support or oppose the increasingly expensive policy of paying cash compensation for events that occurred up to 176 years ago.

Moreover, the Treaty settlement process circumvents our democratic processes. Once a settlement is signed, the agreement becomes legally binding and legislation to implement the settlement is merely a rubber-stamping exercise.

Groups created through the settlement process, which are known as post settlement governance entities, benefit from the system without being required to contribute.

Amendments to the Charities Act meant that from April 1, 2003, any organisation that administers a marae situated on a Maori reservation may qualify for an income tax exemption as a charity. These tax-exempt tribal entities don’t contribute to the government coffers that provided their seed capital.

The 30-year Treaty settlement process has created a network of wealthy claimant groups with substantial political power.

These groups have regular meetings with the Prime Minister, have been granted co-governance rights on a number of councils, are demanding the right to control water, and expect to help determine resource consents under the proposed iwi clauses in the Resource Management Act.

Settlement deals include rights of first refusal to surplus Crown properties (for up to 176 years), statutory acknowledgements of interest in streams, rivers, lakes, mountains, and scenic areas, geographic place name changes, and co-governance arrangements with local bodies.

The settlements detailed below were compiled from details on the Office of Treaty Settlements website and include claimant group, date of settlement, and dollar value to December 31, 2016.

Each settlement includes financial redress (cash and/or property), rights of first refusal on the purchase of properties within the claim area, cultural redress, and co-governance arrangements. 

Cultural redress and co-governance include dollar amounts not included in the financial redress total.

The financial redress amounts are sometimes “plus interest” where the interest is not specified.

The settlements detailed below were compiled from details on the Office of Treaty Settlements website and includes claimant group, date of settlement, and dollar value to December 31, 2016.

 

Claimant group

Year

Value ($m)

COMPLETED SETTLEMENTS    
Waitomo (loan) 1990 1.00
Commercial Fisheries 1992 170.00
Ngati Rangiteaorere 1993 0.76
Hauai 1993 0.72
Ngati Whakaue 1994 5.21
Waikato/Tainui 1995 240.25
Waimakuku 1995 0.38
Rotoma 1995 0.04
Te Maunga 1996 0.13
Ngai Tahu 1998 273.50
Ngati Turangitukua 1999 5.00
Pouakani 2000 2.65
Te Uri o Hau 2002 17.20
Ngati Ruanui 2003 41.00
*Ngati Tama 2003 14.50
Ngati Awa 2005 60.09
Tuwharetoa (Bay of Plenty) 2005 12.40
Ngaa Rauru Kiitahi 2005 31.00
Te Arawa Lakes 2006 10.80
Ngati Mutunga 2006 14.90
Te Roroa 2008 9.50
Te Pumautanga o Te Arawa 2008 38.90
*Central Nth Island Forests Iwi Collective 2008 372.56
Taranaki Whanui ki Te Upoko o Te Ika 2009 25.03
*Waikato River 2010-12 211.80
Ngati Apa (North Island) 2010 22.00
Ngati Whare 2012 18.88
*Ngati Manawa 2012 2.60
Ngati Pahauwera 2012 20.00
Ngati Porou 2012 110.00
Nga Wai o Maniopoto 2012 -
Maraeroa A and B Blocks 2012 1.80
Ngati Makino 2012 11.30
Ngai Tamanuhiri 2012 11.35
Rongawhakaata 2012 23.40
Ngati Whatua o Orakei 2012 20.00
Ngati Manuhiri 2012 9.00
Ngati Whatua o Kaipara 2013 22.10
Waitaha 2013 11.80
Raukawa 2014 61.58
Maungaharuru-Tangitu Hapu 2014 25.02
Tapuika 2014 6.50
Ngati Rangiwewehi 2014 6.00
Ngati Rangiteaorere 2014 0.75
Ngati Toa 2014 75.73
Te Atiawa o Te Waka-a-Maui 2014 20.01
Ngati Tama ki Te Tau Ihu 2014 20.31
Ngati Rarua 2014 19.51
Ngati Koata 2014 19.51
Rangitane o Wairau 2014 25.37
Ngati Kuia 2014 24.87
Ngati Apa ki te Ra To 2014 28.37
Tuhoe 2014 168.92
Tamaki Collective 2014 -
Ngati Koroki Kahukura 2014 6.98
Ngati Haua 2014 13.18
H.B. Regional Council Planning Committee Act 2015  
Kawerau a Maki 2015 6.80
Ngati Kuri 2015 26.68
NgaiTakoto 2015 26.59
Te Rarawa 2015 36.70
Te Aupouri 2015 24.65
Ngati Hineuru 2016 27.00
Rangitane o Manawatu 2016 13.80
Te Atiawa Taranaki 2016 87.00
Ngaruahine 2016 67.50
Taranaki Iwi 2016 70.00
TOTAL   2,752.88
     
AWAITING LEGISLATION    
Whanganui River   110.00
Rangitane o Wairarapa   32.50
Te Tira Whakaemi o te Wairoa   100.00
Ngati Kahu ki Whangaroa   6.50
Ngai Te Rangi and Nga Potiki   29.50
Ngai Ranginui   38.03
Tauranga Moana   0.25
Ngati Pukenga   5.50
TOTAL   322.28
     
GRAND TOTAL   3,075.16

 

* Taranaki tribe Ngati Tama announced in 2012 that it lost its entire $14.5-million settlement received in 2003 blaming poor investments

* By mid-2013, bad investments and bailouts were blamed for wiping out almost half the value off Taupo tribe Tuwharetoa’s $66-million share of the 2008 “Treelord’s” settlement.

*Waikato River. The total includes all payments for 27 years. A total of $130.8-million was paid up front. The government argues that this is not historical redress and so should not be included in the settlement total.

*Ngati Manawa also received $12.2-million worth of Central North Island forestland included in the Central North Island deal.

Settlements compensating for land confiscation: Waikato/Tainui, Ruanui, Te Uri o Hau (ceded), Ngati Tama, Ngati Awa, Tuwharetoa (Bay of Plenty), Ngaa Rauru Kiitahi, Ngati Mutunga, Ngati Pahauwera, Ngati Makino, Ngai Tamanuhiri (ceded), Rongawhakaata (ceded), Ngati Manuhiri (ceded), Waitaha, Raukawa, Maungaharuru-Tangitu Hapu, Tapuika, Ngati Rangiwewehi, Tuhoe, Ngati Koroki Kahukura, Ngati Haua, Ngai Ranginui, Ngati Pukenga, Ngai Te Rangi and Nga Potiki, Taranaki Iwi, Ngati Hineuru, Ngaruahine, Te Atiawa Taranaki,

Sources.

1. Letter, Office of Treaty Settlements to He Toa Takitini, September 5, 2013.

2. Treaty of Waitangi Amendment Bill, December 18, 1984. Hansard

3. Healing the past, building a futureRed Book.

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