8th Annual Public Law Forum; Wellington;

Tuesday 21 March 2006

Dr Pita R Sharples

In New Zealand in 1975, there was a Recreation and Sports ‘Come Alive’ campaign, which was lauded as one of the most far-reaching publicity ventures ever undertaken by the Government. A newspaper report from that time described it as:

“It will touch every man, woman and child in the country, affecting the way we think and the way we live”.

Indeed what occurred in 1975 signalled the birth of a nation, preparing to Come Alive in more ways than one.

For 1975 was the year that a Maori Land March down the length of the North Island drew attention to Maori grievances over the loss of their land. This symbolic site of resistance revealed the heart-wrenching strength and common purpose of Maori feeling about land.

It was also the year that my kapa haka Te Roopu Manutaki won the national kapa haka competitions (surely a world breaking event!).

And 1975 also, saw the birth of the Waitangi Tribunal, the re-emergence of Te Tiriti o Waitangi as a cultural marker; and a renaissance and growth of a new identity as a nation.

Fast forward to 2004, following the release of Tribunal reports on contemporary claims, such as a Maori role in the third-generation radio spectrum, petroleum exploration, and the foreshore and seabed - and the Prime Minister was moved to suggest a review might be necessary, of a structure set up some thirty years prior.

Coming alive is about people having a voice in the exercise of power.

Staying alive is ensuring that the representatives they elect are accountable and responsible to the passionate people who put them there.

I want to look at the challenge of Treaty settlements as a means of both coming alive, staying alive, and thriving as a nation.

The question of the day has been put at ‘is there still a need for the Waitangi Tribunal’?

Let’s examine the evidence. The claims submitted to the Tribunal are expensive. The claims and settlement processes are arduous and grievances tend to detract from positive development opportunities.

The experience of giving evidence is very traumatic. Many of our pakeke have passed away within months of appearing at hearing. Aue taukuri e.

The Power of Potential for Nationhood

None of this, however, diminishes the role of the Waitangi Tribunal as a massive opportunity for Aotearoa to grow.

The Waitangi Tribunal has the authority by Parliamentary statute to determine the meaning of the Treaty for today, and find practical solutions to acknowledged grievances.

It makes recommendations to Government on what action should be taken. The Government then has the final decision on what will happen to the recommendations.

One should never under-estimate the power of the Tribunal to create and shape new interpretations of the Treaty relationship.

The Waitangi Tribunal has been the primary vehicle for the truth and reconciliation aspects of treaty claims.

It is the means by which the people can tell their stories, where the past wrongs of the Crown are heard and recorded, and where an opening is created to explore the previously untapped potential of facing the past to build a future together.

The popular psycho-babble at the turn of the century, with politicians urging New Zealanders to just let it go, to move on, to forget about dredging up the past, to live for the moment, sacrifices a great fundamental truth of democracies.

The right to knowing.

The right to knowing the truth, to knowing the stories.

At the turn of last century, one of our greatest writers, Katherine Mansfied, challenged New Zealanders to

“Risk! Risk anything! Do the hardest thing on earth for you. Act for yourself. Face the truth...”

A century later, another of our greatest writers, Patricia Grace, shares the same sentiment:

"There’s always an edge here that one must walk, that’s sharp and precarious, requiring vigilance.”

Although she was talking about the windy city of Wellington, I can’t help but see the connection to the turbulent gales and storms of a Tribunal hearing.

Anyone who has sat through a Tribunal hearing can not fail but be moved by the turmoil of history. We must strive for courage as a nation to walk the edge, that sharp and precarious edge, in order to increase our knowing of each other.

It is a knowing which New Zealanders are hungry for. I took great heart from a UMR research survey which stated that 57% of 750 New Zealanders surveyed thought that better understanding of the Treaty would help New Zealanders to better understand our country, our history, and to engage in constructive debate.

If we are to move forward we must first be open to healing and reconciliation, which in itself requires the informed involvement of all New Zealanders. Such involvement could come through producing readable versions of Tribunal reports, and making the stories available to whanau, hapu and iwi.

Some 1236 claims have been registered with the Waitangi Tribunal since 1975. Although this statistic has been rendered invisible due to the Crown push for large and natural groupings, it does indicate some of the scope of history available for the public record.

We cannot pretend that the pain of dis-possession is ever likely to be addressed by a quantum sum. In the Taranaki Report, the Tribunal states

'the settlement of historical claims is not to pay off for the past, even were that possible, but to take those steps necessary to remove outstanding prejudice and prevent similar prejudice from arising; for the only practical settlement between peoples is one that achieves a reconciliation in fact.'

Quantum Sum

I want to return, now to this notion of a quantum sum.

Ten years ago the round of hui held at Hirangi marae, issued a direct response to the Crown proposals for the settlement of Treaty of Waitangi claims - commonly known as the Fiscal Envelope.

The Hirangi hui explored in detail the Crown proposals to settle treaty claims with one full and final quantifiable sum.

And this is where it gets murky.

For all the power and good of the restorative process associated with telling our stories this is quickly destroyed once the Crown decides how much and what will be compensated for.

For no matter how assertive the Tribunal reports are, if the total compensation equates to a one-off payment of 1 to 3 percent of losses; and the Government argues this is all we can afford; resolution is always going to be reluctant.

The Hirangi hui attracted unanimous support - and utter rejection of a funding cap being offered to settle all claims once and for all - at a piffling amount which was about 3% of all appropriations for one year.

The 1000 Maori and more who gathered throughout these hui knew the future we now face full on. Where:

- we compromise the outlook for our future generations by accepting a fraction of the true amount of our claims; is that justice?

- where tribes are forced either to sacrifice their uniqueness in the push to large natural groupings, or risk losing out; is that justice?

- where we run the risk of creating serious splits between whanau, hapu and iwi as part of an agenda of divide and rule; is that just?

- where conflict is a consequence of competing cross-claims; insufficient resourcing for claimants to both manage inter-tribal relationships and record history of mutual interest; is that just?

- where issues of mandate and ratification are compounded by low participation rate to threaten ownership. Is that just, is that justice, is that democratic?

The essential problem has always been the mismatch between rangatiratanga (as guaranteed in article two) and kawanatanga (as provided for in Article one). The Maori signatory to Te Tiriti accepted kawanatanga in return for the guarantees of articles two and three.

The Maori Party is firmly of the view that kawanatanga was accepted without any diminution of the rights and privileges associated with being tangata whenua. Yet, the process as administered by the Office of Treaty Settlements, fails to live up to this view.

Rawiri Taonui, Head of the School of Maori and indigenous studies at the University of Canterbury, had an interesting angle on this, when he talked about the various players in the Treaty arena:

"Our Treaty process is a twist on criminal justice. There is a perpetrator, the Crown; and a victim, Maori. The perpetrator stole, obtained illegitimately or defrauded the property of the victim.

"There is an investigator, the tribunal. A jury, the perpetrator in the form of OTS, decides guilt by approving which of the facts the investigator produces are relevant. This all seems pretty handy for the perpetrator."

One of the binding recommendations from the Hirangi Hui was that any change to tino rangatiratanga or kawanatanga as provided for by the treaty requires the prior consent of all iwi. We must ensure that the perpetrator, victim, investigator and jury demonstrate the balance that will enable a fair, transparent process without prejudice.

This may take time, and in the race to iron out the ‘treaty problem’, we must not create fresh injustices in the process.

If there is a need to resolve outstanding issues relating to internal representation or to cross-claims from other tribes, that time must be taken.

If there are clearly disagreements between the Crown and claimants on the appropriate level of redress, time and care must be taken to walk the edge, that sharp and precarious edge, in order to achieve a stronger resolution.

It will take willingness and the preparedness to take the risk, to face the truth - from all parties.

The Maori Party is intent on developing a new approach which is durable, and which focuses on unleashing the potential of the people. We believe it must be an approach which recognises the best that is available through the Tribunal - and also learn from the issues that have arisen through the process - flawed as it is.

And at all times, we should pay heed to the words of the Tribunal:

“the war itself is not the main grievance. The pain of war can soften over time. Nor is land the sole concern. The real issue is the relationship between Maori and the Government. It is today, as it has been for 155 years, the central problem”.

I urge our best thinkers here to turn to the real challenge - of how to make this central problem the source of durable, effective solutions for all parties.

ENDS

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