David Garrett: Full and final treaty settlements?


From  the time of  its election in 2008 this government has done one thing consistently – pay out large sums of taxpayers’ money to supposedly achieve “full and final” settlements of a plethora of Maori grievances. Almost every week the galleries of Parliament are filled by one group of Maori or another who proceed to sing beautifully as the Bill settling “their” grievance, supposedly once and for all,  is passed into law.

Each recently enabling law contains a lengthy recitation of what “the Crown” did wrong all those years ago, and makes a cringing apology for it. But that won’t in fact  be the end of it, and all the players – including the Attorney General, who is responsible for the settlements and the laws giving effect to them –  know it.

First some history.  In the 1940’s the Labour government of the day made real and genuine efforts to settle Maori grievances which had been festering for years – and they had been, despite the claims of some  that Maori  “grievance” is  a very recent  phenomenon.  To take just one example, it is quite true that since their land was confiscated after the Land Wars of the 1860’s, Tainui bitterly protested  what they claimed was unjust and unlawful  confiscations of land.  They were right, and the findings of a Royal Commission support them.

Back in 1926, the government of the day set up the Sim Commission – chaired by a  Supreme Court Judge –   to investigate   claims of unjust land confiscations in the Waikato, Bay of Plenty, and Taranaki. Its report was released in 1927, and recommended   that  annual compensation of about $500,000  in today’s money be made. For twenty years, nothing happened, and the grievances festered through another generation.

Then, after further pressure from Tainui,  came the Waikato-Maniapoto Maori Claims Settlement Act of 1946, which gave force to an agreement reached personally between Prime Minister Peter Fraser and Princess Te Puea. In his  authorized biography “Te Puea”,  Michael King devotes a chapter to  the settlement negotiations, and in particular the final session, at which Fraser agreed to pay 5000 pounds (a million dollars today) per year for ever, and an additional 1000 pounds per year for 45 years, commencing in 1947. King records that Te Puea was so surprised by Fraser’s generosity that she urged her chief negotiator to his feet to accept, before Fraser could change his mind.  Then, in Maori, Te Puea  said, according to King: “all is now settled”.

Similar Acts as that settling the Tainui confiscation grievance  were passed around the same time, settling the claims by Taranaki iwi and Ngai Tahu. All of those  Acts were overturned less than 50 years later, in the 1990’s,  when it became politically expedient for the government of the day to “settle” the grievances once again.

It is now claimed that for at least three reasons,  the settlements of the 1940’s were invalid: firstly that  those  settlements  were negotiated with the wrong people; and/or   they were for trifling sums; and/or  that  the sums agreed upon  were eroded by inflation. None of those  three claims stand up to scrutiny.

As to the first , it didn’t get any higher than the PM on one side, and the undisputed matriarch of her iwi and the  most respected Maori leader of her day on the other. As to the “trifling sums” claim, that is clearly nonsense.

My research shows that in 1946, 6000 pounds was about the value of an average dairy farm, or about $2 million today.

It is certainly true that

thirty or forty  years later, that annual payment of 6000 pounds  was worth much less,  because of inflation. But anyone who relied  on a fixed income before inflation became an established  phenomenon  had that problem. People who retired in 1970  on a fixed income of a then  comfortable $75 a week from AMP or the Government Life were  in real trouble twenty years later, after ten years of double digit inflation. That was just too bad; unless policies were indexed – and most weren’t, because inflation had not been considered – retired people just had to suck it up. Why should Maori grievants be any different?

Fast forward fifty years after the grievances had been settled,  and the Tainui  and other iwi convinced the government of the day  that the “settlements” of 50 years earlier weren’t settlements at all;  the whole issue was revisited, and millions more  taxpayer dollars were paid. In Tainui’s case twice, after they blew the first settlement on unwise investments like the Warriors rugby league team.  Again, the  shiny new settlements were given force in legislation – the laws passed in the 1940’s simply being repealed because they were no longer convenient.

But we did not learn the lessons of the 1940’s, and we still haven’t. Those prior settlements could simply be written out of existence because the laws which gave force to them were not “entrenched”; they could be repealed by any government able to muster a simple majority, as any government which is able to remain in office  can.

Now, twenty years on from the settlements of the 90’s, we are still “settling” grievances, and still passing laws which can be repealed when the next generation decides to have a crack. Since National was elected in 2008, Attorney General Chris Finlayson has proudly  sponsored 16 new laws giving effect to settlements,  all of them trumpeted as being full and final. He has also – so far – signed 33 Deeds of Settlement which will eventually be given effect to by legislation.   On National Radio recently, Finlayson claimed that the current settlements will not  be revisted,  yet again, in 40 years time. In making that claim, he is at best being disingenuous.

Firstly neither he nor anyone else knows what will happen in 40 years – the more honest Maori leaders  now say that no generation of Maori  can bind the next. Secondly, Finlayson is well aware that the legislation he  sponsors now  is no more legally durable than that passed 50 years ago – these most recent laws can also be repealed by any future  government with a simply majority.

There is at least a possible solution – entrenching  the laws being passed by this government   so  they cannot be repealed without a “supermajority” of – say – 75% of MP’s in favour. Or if we really want to be serious,  unless there is a popular referendum with a similar majority.

While legal academic opinion is divided on just how effective such entrenchment attempts  would be under our constitutional arrangements, it would at least be a signal that this government was serious; that the settlements of the last 20 years were intended to be full and final, that this was accepted by the grievants, and that any attempt to reopen the can of worms would simply be a venal attempt to get more money.

Why hasn’t this government entrenched its “settling” Bills? There are various answers, none of them complimentary.  Finlayson and his ilk simply cannot argue, when we go down this path again,   that everything was done at the time to finally close the books. Until that is done – as well as our constitutional arrangements allows – none  of the settlements now being made can be considered “full and final”.  And the Attorney General knows it.