The future of the Waitangi Tribunal, continued

From part one:

By Amy Brooke, cont’d

A recent troubling example of a very possibly opportunistic claim has been substantiated in detail by historians and researchers Ross Baker and Martin Doutre in submissions to the predominantly part-Maori, Maori Affairs Select Committee hearing on the Te Roroa Claims Settlement Bill. The latter is a worrying outstanding example of how Parliament was apparently not informed by this committee, of which the present Treaty Negotiations Minister Chris Finlayson was also a member, that this was not a proven, but merely an alleged claim. Not only was parliament not informed that this claim was not proven, but our House of Representatives was apparently unaware that substantial submissions against the Te Roroa claim had been presented to and heard by the committee, not only by Federated farmers, but also including a well-made case by the One New Zealand Foundation. Yet members of parliament rely on accurate presentations by these committees to make themselves as fully informed as possible before voting on issues.

What are we to make of all this? And what of the tribunal’s positioning in acting as virtual advocate for these claims? Although one politician’s activism in particular is associated with a decision to extend treaty claims back to over a century and a half ago, this decision was a worrying concern to many at the time, pointing out that inter-tribal rivalry still exists today, albeit in a different form. It was argued that vigorously conflicting claims and the impossibility of a clear ruling on many of these, so many generations later, would make achieving justice an impossibility.

In his book New Zealand’s Constitution in Crisis, Geoffrey Palmer stated that it was his time in the US which shaped his intellectual approach to Maori issues in New Zealand. However he seems to have largely sidelined from his thinking, although he paid it lip service, the fact that our two political systems and history had been entirely different, with integration so successful in New Zealand that intermarriage quickly became commonplace. Yet, as he states in A Maori Constitutional Revolution* (Chapter 4) it was against the background of what he had witnessed in the States that he drew “and with adaptations used, as the basis for legislation to advance the interests of the Maori minority in New Zealand”. Palmer decided that the initial commitment should be to a process …”what should be done was to be decided only after judicial or quasi-judicial processes had accessed individual cases. First, it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the treaty and statutes and extension of the Waitangi Tribunal to examine grievances back to 1840.”

Even granted the good intent of such thinking and Palmer’s personal view that Maori were suffering social deprivation “which the Crown resolutely refused to address” (in itself a puzzling assertion, given the long directing of government funding to Maori health, welfare and many other initiatives) the fact that he “foresaw promising material for constitutional development” and the contribution of the Waitangi Tribunal to “Maori constitutional revolution” was a radical undertakings. Such singular activism might have signalled caution to others – and indeed did so. Yet, deciding to extend tribes’ claims as far back as 1840, Palmer “took the view that they may (sic) take a decade to deal with but it would be worth it in the end.”

It is now two and a half decades later, with accumulatively billions of dollars taken from taxpayers’ pockets and directed towards Maori-only interests. Yet the claims show no signs of lessening. Palmer’s intent was for the Waitangi Tribunal to look into “the old grievances” and allow it to make recommendations about what should be done. With Maori being given an outlet for their grievances “there would be no further need for direct action”. He saw “one touchstone for judging the success of the policy… to ask whether there has been any major political disturbance based on the treaty since the policy was implemented” and stated that he thought “there has been none”.
However, the present Tuhoe claim to self-government and autonomy, and the growing radicalised move to fly the Maori sovereignty flag – let alone the extraordinary and opportunistic claims to this country’s foreshore and seabed, which the Maori Party quite openly envisages as just the first step in further major political activism, suggests that there was a certain amount of naivete in this minister’s thinking. Moreover, in referring to the then Department of Maori Affairs, he noted that “the department did have a treaty unit which was supposed to furnish policy advice on the treaty” but he “was never able to see how a department whose main admission was to assist Maori could proffer objective advice to the Crown on treaty issues.” Exactly the same criticism can be levelled at the Waitangi Tribunal he established.

It was in March 1989 that as Minister of Justice, Palmer was responsible for putting forward a Cabinet paper “seeking permission for a group of officials to prepare a paper setting out the principles upon which the government proposed to act on treaty issues”. This was a significant move. However, it is astonishing to read his admission that the treaty – or the version of it that he then referred to – was “vague, and uncertain”. (The discovery of the Littlewood Treaty has since made it plain how little reliance should now be placed on the faulty translation that was used at the time.) Palmer also reformulated the concept of partnership as “the principle of cooperation” – a far different meaning from the highly radicalised version later advanced too loosely and mistakenly used both by Parliament and by the judiciary, as in Justice Robin Cooke’s “akin to a partnership” phraseology, which led to ongoing confusion.

Section 9 of the State-Owned Enterprises Act 1986 was also momentous particularly in that, against what Geoffrey Palmer had thought would be the case, The Court of Appeal held that “ the principles of the treaty of Waitangi overrode everything else in the Act” according to that same Robin Cooke, then President of the Court of Appeal. According to Palmer, “This judgment was a great setback to the government’s policy,” and “there was loose talk among some cabinet members that we should legislate it away.”

However, describing the Court of Appeal’s judgment as containing “broad declarations of principle of a type never made before by a New Zealand court” Palmer marvelled that this was “constitutional litigation of a new and exciting type”. He saw the courts of New Zealand now playing ‘something of the role of the American courts” in that there had been a transfer of power from Parliament and its people’s elected representatives, to the courts. The question how much judicial activism then and in future should be a concern, and whether it was appropriate, in a democracy, that so much in the way of momentous change should hinge upon the determination and-self will of one individual, is still due for serious appraisal. Furthermore, when The Treaty of Waitangi (State Enterprises) Act 1988 was passed, the decisions of the Waitangi Tribunal were to be not merely advisory, but legally binding. The genie was now out of the bottle.

To some extent Parliament has now been sidelined, no longer representing the wishes of the country at large, in a climate of flourishing racial activism. The most recent Ngai Tahu settlement, the Tuhoe and the Te Roroa claims, for example, are very good examples of how overworked, underinformed and therefore basically ignorant members of Parliament are at the mercy of the Maori Affairs Select Committee, reporting back to Parliament. Considering what the resulting flawed decisions have cost taxpayers, it is almost incredible that they have been insufficiently scrutinized and in some cases are arguably fraudulent. Where evidence challenging radicalised “facts” and elasticising the truth of issues – to put it charitably – is simply ignored by a select committee, parliament can too easily endorse claims which are unproven, opportunistic, and historically challengeable – if all the facts are considered.

As it has long been regarded as operating without genuine standards of democratic accountability, critics argue that the Waitangi Tribunal was given too much authority by government, its recommendations too much weight. The debate surrounding its initial establishment, The Treaty of Waitangi (State Enterprises Bill) forced through in 1988, makes interesting reading. The then member for Tauranga, Winston Peters, warned that enactment of the bill would ensure the European majority “has no status before the tribunal, although they will foot the bill as taxpayers.” It was correctly foreseen that they would have no right of appeal against the findings of the tribunal, no matter how negligent some lawyer… in prosecuting the case for taxpayers”. His conclusion was that such policies are inconsistent with the Treaty of Waitangi.

Although Peters is himself of Maori descent, both the government and the media have found it convenient to ignore his representation of a large sector of the Maori community. Both major parties have bought into the tiny radicalised Maori Party’s anti-European, racially divisive claims – although by far the majority of part-Maori demonstrably did not support the Maori Party in the 2008 election – not when they achieved less than 3% of the overall vote. Statistically between 12 to 15% of the population is considered “Maori’ – although no definition of “Maori” is provided. The Maori Affairs Amendment Act of 1974 defines a Maori as “a person of the Maori race of New Zealand and including any descendant of such a person”. This extraordinarily broad definition well suits activist tribal overlords claiming larger tribal membership to lend added weight to their claims. However, there are apparently at least six acts previous to this, the first in 1865. As Maori ancestry becomes further and further diverted with other races, the process is ongoing of the continual, opportunistic redefining what is to be Maori.

When it comes to vote-buying by way of the Maori seats, long overdue for abolition in an MMP environment which ensures minor parties’ representation, pragmatism has become the choice of the day. The National Party, once perceived as supporting principled political decisions is now perceived as putting its bet on the personal charm of its present populist leader, adept at wooing the media, to win the next election – in spite of the way it has let down its core constituency with regard to the divisive issue of racial preferment.

What of other comments by National Party members at the time of the establishment of the Waitangi Tribunal? In 1997, in his Pontius Pilate role (“there is nothing I can do about it”) the then Treaty Negotiations Minister Doug Graham, long responsible for wrongly promoting a non-existent “treaty partnership” (a concept he later abandoned), adopted an entirely different stance from his original ,“The tribunal has enormous powers it should not have.” The member for Remuera originally questioned why parliament “should allow the government… which has the final responsibility for resolving grievances, to delegate that power to someone else.” Responding to his own query why the Waitangi Tribunal was to have “a binding power” when the government should act in the interest of all New Zealanders, he implied that it had been tactically outmanoeuvred by the Maori Council.

Paul East, MP for Rotorua, similarly objected that the bill established “a kangaroo court…although the tribunal was nothing like a court” with its officers political appointees and with no appeal against its findings. The then Attorney-General described as “dictatorial and totalitarian” the legislation over which he subsequently presided.

These are grave considerations for us today. Furthermore, the resurgence of radical Maori activism with its claims to Maori sovereignty and to fly such a Maori flag; the more than dubious claims to property rights over the foreshore and seabed – as well as the modus operandi of the Maori Affairs Select Committee and its selective reporting back to Parliament – are all issues well overdue for being brought into the light of day.

At the heart, now, of all the current activism, is the Waitangi Tribunal, which makes its final recommendations to government. Although its hearings are normally open to the public, it has, however, the power to meet in private, and it may limit who may attend parts of a hearing. It may also require changes to be made to the proposed agenda. Problematically, far from positioning itself in a suitable location distant from a petitioning tribe, the tribunal “endeavours to hear each claimant group on its own marae (or at another place of its choosing) and according to the particular tribe’s protocols where that is desired”, although it retains final discretion to decide where it will sit. Moreover, non-Maori cannot lodge a claim, participate, cross-examine or even appeal at a hearing.

To the disinterested assessor of these proceedings, an obvious concern must be the absence of an objective framework of normal court proceedings. Not only do the proceedings generally follow the protocol of the marae, often in a highly charged emotional atmosphere, but the tribunal “has no objection to Crown or claimant counsel being seated with advisory kaumataua: on the contrary, it encourages that course”. This is an extraordinary provision. Under such circumstances the difficulty for Crown counsel to remain adversarial, as should be the Crown’s role as Devil’s Advocate, representing majority New Zealanders, is very obvious – as is the ability of tribal kaumatua to apply considerable emotional pressure.

How many New Zealanders realise that marae protocol can even exclude the cross-examining of elders’ evidence? Ngai Tahu in their most recent third “full and final settlement settlement”- (they have since received further compensation) – themselves resisted cross-examination by the Crown, claiming that confrontation was not the Maori way – not only a ludicrous claim, given the history of Maori tribal confrontation – but a manifestly inappropriate state of affairs for anything remotely approaching a judicial body set up to establish the truth of issues. Furthermore, the same tribe insisted on the right to its own cross-examination at a later tribunal hearing into counterclaims against it by tribes from the top of the South Island.

Ngai Tahu’s 1997 claim was at the time greatly assisted by Wellington lawyer Chris Finlayson, now Minister of Treaty Negotiations, and currently planning to be involved in direct dealing with tribes to settle further claims, having suggested they are able to bypass the courts, and instead, to apply to him.

The tribunal’s procedures with regard to the 1997 Ngai Tahu hearings in relation to the same claims already heard and settled twice previously (including in the unanimously accepted, full and final settlement extension of their 1944 settlement in 1973, previous to the recent third resettlement) provides disturbing insights into the way it operates.

In a 1996 article in the Christchurch Star, respected media commentator Brian Priestley, having attended several sessions, concluded: “it would be hard to imagine any public body less well organised to get at the truth.” Mr. Priestley noted that the there was no cross-examination; that witnesses were treated with sympathetic deference; and that those representing the Crown “seemed equally anxious not to offend’. Stating that in three months he was not asked a single intelligent question, he concluded that he should have resigned, as he was not “a one-eyed supporter of causes”.

The adequacy of those representing the Crown in that particular Ngai Tahu re-settlement and therefore ultimately the taxpayer, is still in question today. Expert witnesses for the Crown reported at the time that they were distinctly told that their evidence was not to be put forward in a manner partial to the Crown, and that they must not act as advocates for the Crown. Moreover, the Office of Treaty Negotiations later admitted that it lacked both the resources and the well-qualified personnel to do justice to a competent appraisal of the historic issues concerned. When we add to these facts that the then Minister of Treaty Negotiations, Doug Graham, subsequently instructed the Maori Affairs Select Committee to virtually ignore the reportedly close to 400 submissions made concerning this proposed settlement (some from well-researched historians with good evidence to robustly dispute Ngai Tahu’s claim) on the grounds that he and Prime Minister Jim Bolger had already signed the bill at Kaikoura, then the disenfranchising of New Zealanders as a whole from any genuine representation concerning the settlement is obvious. The settlement was described at the time as essentially “a swindle”.

If this accusation seems extreme we should note that not only did the Crown’s witnesses complain of having insufficient time to properly prepare their material, as historical researcher Denis Hampton noted in an Evening Post article of April 3, 1998, but another Crown witness – “at the tribunal’s request, involved the claimants in his research and said that without their help he would not have been able to present such a complete picture!” As Hampton illustrates, “Crown witnesses, perhaps under instruction,” appear to have taken particular care to avoid material contradicting Ngai Tahu’s claims and so could not adequately pursue the case.”

Moreover vital evidence was withheld. Early reports from reputable historians who knew Ngai Tahu well in the late 19th century described the tribe then as lazy and negligent, “no longer cultivating their food as it required too much care.” The evidence from the Rev James Stack’s 1872 observations, for example, that was that “kumara, pumpkins, melons, turnips, etc. all favourite articles of diet were no longer cultivated, the reason given that they required too much care….Though very fond of milk and butter, no household provided itself with these – “everyone shirks the trouble’ he said.”

None of this direct reportage regarding the tribe’s practices was ever presented to contradict NgaiTahu’s claims that the tribe had insufficient land. “Stack felt that one reason for the neglect of agriculture ‘was the facility afforded for the idle to live on the industrious’. In 1879 he noted that the prevailing practice of leasing land to Europeans fostered the habit of depending on others. He said ‘Neither the pressure of want, nor the prospect of gain, nor the advice of friends, prevailed to induce the Maoris here to cultivate the lands.’”

As Hampton noted, Crown witnesses not only failed to advance this material, but also ignored an earlier report by Alexander Mackay, friend to the tribe at the time, commenting on its “constitutional indolence.”

Given that these witnesses had been told that their evidence was “not to be put forward in a matter partial to the Crown, and that they must not act as advocates for the Crown”, fair representation of the Crown and therefore of New Zealanders who would be required to pay for the outcome of this flawed process was doomed from the start. Moreover, it is almost impossible, when considering the findings of Wellington historian Alan Everton, which were impressively researched and published at the time of the Ngai Tahu claim, not to concur with his assessment. “The inescapable conclusion to be drawn from the records is that the tribunal did not get at the truth, and any settlement of Ngai Tahu’s claims based on its report will be nothing short of a fraud.”

That the Waitangi Tribunal’s report when scrutinised gives a strong impression that it went into its hearings predisposed to Ngai Tahu’s case is undeniable, as Hampton also comments, as did others whose findings were also ignored. Given that the present Treaty Negotiations Minister was a strong advocate for the tribe at the time, it is no wonder that his present offer to negotiate directly with tribes claiming foreshore and seabed, based on arguably non-existent treaty rights and spuriously legal “customary rights” is causing considerable concern.

Questions obviously still remain about the validity of the Ngai Tahu claim – and it is arguably time for an impartial commission of enquiry to reconsider it – and whether this now very wealthy tribe should be obliged to return to the taxpayer at least its initial settlement – if this was indeed made on arguably fraudulent grounds. Certainly the same “facts” it had advanced had been previously rejected by a previous Maori Affairs Select Committee – but this time around National was chasing the Maori vote.

Questions are still unanswered about why at the time Ngai Tahu were given sole monopoly rights to whale watching. It was not Maori, but the early Europeans, who first hunted whales. Maori, lacking the technology, were restricted to using beached bones for carving.

There has been no answer to date, too, about why the thinly scattered, numerically small Ngai Tahu tribe were at the same time inexplicably given sole rights to South Island greenstone, which it did not even discover. The Ngati Wairangi tribe traded greenstone from Westland to the North Island long before Ngai Tahu journeyed to the South Island. Reportedly, as early as 1510, greenstone was conveyed by canoe to the Maoris of Napier and Poverty Bay.

Continue to part three