The unintended consequences of treaty settlements

e_Unintended-consequences_1467451214_620X349_c_c_0_0.jpg

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 77 settlements detailed below, fewer than half involve land confiscation which only occurred in 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”, is calculated by following a simple formula which is mainly to do with the land area the tribe claimed to own in 1840 and the number of tribe members today. (1)

Under that formula, the tribe that claimed the biggest land area in 1840 and the most registered members today would expect to get the biggest pay-out. Another assumption is that every claimant group should 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 total amount of these top-ups, as detailed in the table below, is $543.8 million, which is substantially more than both tribes received in their 1990s settlements.

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 participate in making important decisions.

At no stage has the New Zealand public been given any say in the increasingly expensive policy of paying cash compensation for events that occurred up to 178 years ago.

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. These arrangements entrench race-based co-governance for years to come.

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 June 30, 2018.

 

Claimant group

Year

Value ($m)

COMPLETED SETTLEMENTS

 

 

Waitomo

1990

1 (loan)

Commercial Fisheries

1992

170

Ngati Rangiteaorere

1993

0.76

Hauai

1993

0.72

Ngati Whakaue

1994

5.21

Waikato/Tainui

1995

170

Forest rentals

1997

0.25

First relativity top-up

2012

70

Second relativity top-up

2017

190

Third relativity top-up

2018

16.6

Waimakuku

1995

0.38

Rotoma

1995

0.04

Te Maunga

1996

0.13

Ngai Tahu

1998

170

Forest rentals

2000

35

First relativity top-up

2012

68.5

Second relativity top-up

2017

180

Third relativity top-up

2018

18.70

Ngati Turangitukua

1999

5

Pouakani

2000

2.65

Te Uri o Hau

2002

17.2

Ngati Ruanui

2003

41

*Ngati Tama

2003

14.50

Ngati Awa

2005

60.9

Tuwharetoa (Bay of Plenty)

2005

12.4

Ngaa Rauru Kiitahi

2005

31

Te Arawa Lakes

2006

10.8

Ngati Mutunga

2006

14.9

Te Roroa

2008

9.5

Te Pumautanga o Te Arawa

2008

38.9

*Central Nth Island Forests Iwi Collective 

2008

372.56

Taranaki Whanui ki Te Upoko o Te Ika

2009

25.03

*Waikato River

2010-12

211.8

Ngati Apa (North Island)

2010

22

Ngati Whare

2012

18.88

*Ngati Manawa

2012

2.6

Ngati Pahauwera

2012

20

Ngati Porou

2012

110

Nga Wai o Maniopoto

2012

0

Maraeroa A and B Blocks

2012

1.8

Ngati Makino

2012

11.3

Ngai Tamanuhiri

2012

11.35

Rongawhakaata

2012

23.4

Ngati Whatua o Orakei

2012

20

Ngati Manuhiri

2012

9

Ngati Whatua o Kaipara

2013

22.1

Waitaha

2013

11.8

Raukawa

2014

61.58

Maungaharuru-Tangitu Hapu

2014

25.02

Tapuika

2014

6.5

Ngati Rangiwewehi

2014

6

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

0

Ngati Koroki Kahukura

2014

6.98

Ngati Haua

2014

13.18

H.B. Regional Council Planning Committee

2015

 

Kawerau a Maki

2015

6.8

Ngati Kuri

2015

26.68

NgaiTakoto

2015

26.59

Te Rarawa

2015

36.7

Te Aupouri 

2015

24.65

Taranaki Iwi

2015

70

Rangitane o Manawatu

2015

13.8

Ngati Hineuru

2016

27

Te Atiawa Taranaki

2016

87

Ngaruahine

2016

68.2

Te Atiawa Taranaki

2016

87

Whanganui River

2017

115.43

Ngati Kahu ki Whangaroa

2017

6.5

Ngati Pukenga

2017

5.5

Rangitane o Wairarapa

2017

32.5

Ngai Kai ki Tamaki

2018

12.75

 

 

 

TOTAL

 

3413.16

 

 

 

AWAITING LEGISLATION

 

 

Ngai Ranginui

 

38.03

Ngai Te Rangi and Nga Potiki

 

29.5

Tauranga Moana

 

0.25

Te Tira Whakaemi o Te Wairoa

 

100

Ngati Tamaoho

 

10.89

Tuwharetoa

 

27.8

Ngati Rangi

 

16.91

 

 

 

TOTAL

 

223.38

 

 

 

GRAND TOTAL

 

3636.54

 

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

*Central North Island Forests Iwi Collective also received $223-million in forest rentals held in trust since 1989. That is not included in the financial redress total because it was regarded as tribal money from 1989.

* 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 government argues that this is not historical redress and so should not be included in the settlement total. The $211.8-million total includes all payments for 27 years. A total of $130.8-million was paid up front.

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

 

Sources

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

2.Healing the past, building a future. https://www.govt.nz/assets/Documents/Red-Book-Healing-the-past-building-a-future.pdf

  1. Letter, Office of Treaty Settlements to He Toa Takitini, September 5, 2013. http://www.hetoatakitini.iwi.nz/uploads///Quantum_factors_for_He_Toa_Takitini_Letter-_5_September_2013.pdf

 

connect

get updates