Sunday, July 1, 2012

Mike Butler: Is Ngati Ranginui deal justified?

About 200 people turned up at a forum in Tauranga on Monday night, to have misconceptions about local tribe Ngati Ranginui’s $38-million settlement dispelled. That such a public meeting was deemed necessary implies a level of opposition to the deal that is yet to be ratified by the tribe. Usually, treaty settlements are agreed upon in private and the signed agreement is legally binding requiring legislation to release the money. How can this settlement be justified?

In a press release, Treaty Negotiations Minister Chris Finlayson said the settlement, that was signed on June 23 at Te Ranga, near Tauranga, provides redress recognising that “Ngati Ranginui and other Tauranga iwi have suffered some of the worst grievances in New Zealand’s history including the loss of life and the raupatu of land”. The Office of Treaty Settlements summary skirts the issues and the Waitangi Tribunal’s Report on the Tauranga Confiscation Claims offers a split decision.

If this was among the worst grievances in New Zealand’s history, Ngati Ranginui was not mentioned in an 1882 list of complaints taken by chiefs to England for Queen Victoria to ponder. (1) The 1926 Sim commission found that confiscations in the Bay of Plenty were largely fair. The only Bay of Plenty grievance in the 1940s round of settlements was that of Whakatohea that had sustained land confiscation, for a lump sum payment of £20,000, in the Finance No. 2 Act on October 12, 1946.

It appears that the Ngati Ranginui grievance was re-discovered after 1985, when the Fourth Labour Government opened the way for further historical compensation by permitting the investigation of issues back to 1840.

Nga Hapu o Ngati Ranginui’s historical claims, according to the settlement summary, concern the war and confiscation at Tauranga; the purchase of the Te Puna-Katikati blocks soon after the war; the consequences of Ngati Ranginui resisting confiscation and Te Puna-Katikati purchase during the Crown’s “bush campaign”; the effects of the Crown’s native land laws and later Maori land legislation; and public works takings during the second half of the twentieth century. (2)

Ngati Ranginui’s claims are among 55 separate claims also involving Ngai Te Rangi, Waitaha, and the Marutuahu people, according to the Waitangi Tribunal’s Report on the Tauranga Confiscation Claims. The claims stem from the battles at Gate Pa (Pukehinahina) on April 29, 1864, and Te Ranga on July 21, 1864, following on from the Waikato war (3) in which “the Maori aim was to sweep the pakeha to the sea, and the pakeha government’s object was to teach the Maori his subjection to British authority”. (4)

At the Battle of Gate Pa, about 230 Maori fighters under chief Rawiri Puhirake defeated 1700 British troops after withstanding a day of British artillery bombardment, the heaviest of the New Zealand Wars.(5) One hundred and eleven government fighters were killed while Gate Pa Maori lost 25. At the ensuing Battle of Te Ranga, Puhirake was killed and his fighters defeated.

Ngai Te Rangi peace negotiators were able to make a symbolic submission and retain most of their lands, mainly out of the government’s respect for the slaim chief Puhirake. Nevertheless, the entire Tauranga district, estimated at 290,000 acres (117,359 hectares), was included in a confiscation proclamation issued in1865. The Crown returned 240,000 acres (97,125ha) but kept a 50,000-acre (20,234ha) area. The land returned was in individual rather than customary title meaning it could be sold without having to go through the Native Land Court. Maori land owners opted to sell to become part of the new economy. (6)

The Bay of Plenty area prospered over the years with little sign of discontent until the possibility of further historical compensation came into being once issues back to 1840 could be investigated. Along with $38,027,555 financial redress, the Ngati Ranginui commercial redress includes the right to buy 48 land bank properties, three Land Information New Zealand sites, and Puwhenua Forest Lands jointly with Ngati Rangiwewehi and Tapuika, and a right of first refusal for fish species introduced into the Quota Management System, according to the report summary.

Cultural redress includes vesting 13 sites totalling 846.3ha. Oraeroa will be vested as a sacred area (wahi tapu) with no public access. Omokoroa School land will be transferred to the tribe subject to sale and leaseback to the Ministry of Education. The tribe will control the Margaret Jackson Wildlife Management Reserve. Six geographic names will change, two unnamed sites will be named, and the names of two Crown protected areas will be altered.

Ngati Ranginui is one of eight Bay of Plenty tribal groups. If $38-million becomes the average financial redress amount, the total for the area may reach $304-million. How could the government consider paying over that amount of money for a grievance that did not exist in 1882, and was dismissed in the 1920s? How could a 1920s inquiry say that Bay of Plenty Maori were fairly treated, and the Waitangi Tribunal and Treaty Negotiations Minister conclude that “Tauranga iwi have suffered some of the worst grievances in New Zealand’s history”?

Another big unanswered question is whether taking military action against the government is a treaty breach. If the tribes who fought against the government breached the treaty, how can they call on the terms of the treaty to justify compensation without recognising that their breach of the treaty warranted the punishment that was already quite leniently inflicted upon them? Sir Apirana Ngata, whose face is on every $50 banknote, was clear that the land confiscations could not be objected to in light of the treaty. He wrote in 1922:

Some have said that these confiscations were wrong and that they contravened the articles of the Treaty of Waitangi. The Government placed in the hands of the Queen of England, the sovereignty and the authority to make laws. Some sections of the Maori people violated that authority. War arose from this and blood was spilled. The law came into operation and land was taken in payment. This itself is a Maori custom - revenge, plunder to avenge a wrong. It was their own chiefs who ceded that right to the Queen. The confiscations cannot therefore be objected to in the light of the treaty. (7)

The Tauranga report is unique in that tribunal member Michael Bassett wrote a dissenting opinion taking issue with three of the general findings of the majority members. He argued that the Crown was justified in taking military action against Tauranga Maori in the 1860s. He argued that individualising the tenure of Maori land there was not a treaty breach, and he argued that there was no failure on the part of the Crown in supervising the alienation of returned Maori land.(8)

Therefore, if Ngati Ranginui fought against the government and thereby breached the terms of the Treaty of Waitangi, and if the Crown was justified in taking military action, and was correct in allowing Tauranga Maori to sell their land and directly benefit in the new economy, what justification is there for the current $38-million settlement and associated cultural redress?

The Gate Pa flag is fixed with the Union Jack flag on either side of the memorial to the New Zealand Wars in the Auckland War Memorial Museum. The inscription on the memorial reads “Kia mate toa. In memory of all those who gave their lives during the New Zealand Wars 1845-1872. Through war they won the peace we know.”

The government’s apparent rush to hand over cash, assets, co-management, landmarks, and sacred areas to newly created tribal entities implies some sort of unease that could come from believing the anti-colonist allegations made by the Waitangi Tribunal. The bravery, military skill, and chivalry of the 1860s campaigns, when people died for their causes, contrast with the expedience and opportunism that is a part of politics today. It would appear that our current political leaders either have forgotten or are ignorant of our brief history.

Ngati Ranginui, with Ngati Te Rangi and Ngati Pukenga iwi had ownership of Mount Maunganui transferred to them from the Crown on May 14, 2008, by an act of Parliament.

1. Ranginui Walker, Struggle Without End, p. 162. Lord Kimberley received the petition on behalf of the Queen and referred the deputation back to the New Zealand government, and Prime Minister Frederick Whittaker dismissed the petition.
2. Ngati Ranginui Settlement Summary
3. Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims{6DF58A78-2E30-4E92-92D2-414D7973B735}
4. James Cowan, The New Zealand Wars and the Pioneering Period, (Wellington, Government Printer, 1955) Vol 1, p. 241
5. Jinty Rorke. 'Puhirake, Rawiri - Biography', from the Dictionary of New Zealand Biography. Te Ara - the Encyclopedia of New Zealand, updated 1-Sep-10
6. Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims{6DF58A78-2E30-4E92-92D2-414D7973B735}
7. Ngata, Sir Apirana, The Treaty of Waitangi – An Explanation, Maori Purposes Fund Board, 1922, p. 37
8. Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims{6DF58A78-2E30-4E92-92D2-414D7973B735}


Anonymous said...

In "Maori Land Law," Sir Hugh Kawharu blatantly sets out to fabricate a universally recognised body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis was explicitly created to fudge or remove the fact that “customary title” is in practical terms no title at all.

The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, thus rendering life “nasty, brutish and short.”

Within the hapu-controlled estate, whanau groups sometimes enjoyed exclusive rights of occupancy or usufruct as Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was "Te rau o te patu" or "The Law of the Club."

In the absence of a settled form of civil government, hapu used or occupied land only until someone else took it off them. This position was somewhat modified by Article II of the Treaty of Waitangi, which purported to change this temporary “customary” Maori use and occupation of land into permanent legal ownership.

It should be noted the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand. It was intended to secure the various hapu in their “ownership” of land that they actually used or occupied as at February 1840.

In practice, this meant “ownership” of land identifiably occupied and cultivated. At a most generous assessment, such “ownership” might stretch to include a reasonable hunting and gathering range around a Maori settlement. At the time the Treaty was signed, even in the more populous North Island, such settlements were typically few and far between

In 1840, the North Island was home to an estimated 100, 000 Maori. Edward Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that "even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu]."

Anonymous said...

The South Island lay practically deserted. Edward Shortland's 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that 2, 500 people [a] lived on; [b] cultivated; or [c] hunted and gathered over 13 million hectares of the South Island is sheer casuistry.

Even in the North Island, aside from the immediate areas around a Maori settlement, the "waste lands" were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. The exclusion of other groups, whether by law or by force, was in practical terms impossible, meaning the “waste lands” had neither “customary” nor legal owners.

The mischievous notion that the property rights set out in Article II of the Treaty applied to the entire land area of New Zealand, including the “waste lands,” was implanted in the Maori mind by the missionaries over the decade following the signing of the Treaty. They were well aware the Crown had little money for land purchasing and a mere handful of troops to enforce its edicts. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they wanted to Christianise.

By the mid-1840s, Maori had learned that the Crown would pay to acquire the “waste lands,” in order to avoid the trouble it had no military force to quell. Each hapu became an instant "owner" of huge tracts of "waste land" adjoining its settlement. This created multiple competing ownership claims.

Anonymous said...

To convey a clear title to subsequent purchasers and ensure incoming settlers remained unmolested, the Crown was obliged to extinguish this Maori "ownership" by paying all potential claimants. In many early land purchases the Crown paid out anyone asserting a right to be paid.

The Native [now Maori] Land Court was originally set up to deal with these competing claims to the “waste lands.” "Ownership" was typically awarded to whoever could spin the most convincing whakapapa about how his remote ancestor had travelled over the land 500 years before naming natural features after parts of his body.

Had the missionaries not queered the pitch for the Crown, the "waste lands" and appurtenant rights would have simply been assumed by everyone to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of ALL New Zealanders, irrespective of race.

Anonymous said...

How can the Waitangi Tribunal authorise retrospective compensation for land taken under the Public Works Act? I understand that this Act has always required that compensation at market rates be paid for any land taken for (or has its value compromised by) public works AT THE TIME OF THE TAKING. If the Tribunal is using these grounds, then there must be some 'double dipping' going on.

Mike Butler said...

Great comments Anonymous. Many thanks for the background.

Rab McDowell said...

Anonymous's comments are thought provoking and challenging of accepted wisdom. I, and I think most others, would give them much greater credence if Anonymous was prepared to put his name to them

Anonymous said...

Mike, you keep coming up with all this great stuff to prove and disprove our deeply misguided history but who is going to do anything about it?

Certainly none of the parties in government at present are going to all of a sudden investigate the WT and stop this plundering.

Any ideas?

Mike Butler said...

Some specific suggestions are detailed in Muriel's current column "Equality For All" at Voters and taxpayers have ultimate control since the government cannot exist without us. If you haven't done so already, you may register for the NZCPR mailing list or sign our petition against a treaty based constitution so you may be kept informed. Watch this space.

Anonymous said...

Give them the whole country back, weak governments have and are pandering and it makes me sick.
They can have what I have, I'm out of this backward hick place where being a fourth generation European means you can pay tax, wait in the queue for hospital treatment and read about what a...holes your ancestors have been. Foolishly, my Dad, Grandad and uncles fought for their country, NZ. Now we are told its no longer our country, that's right we didn't get here first.
I am last in my family to leave, I don't need to turn out the lights, the lights in NZ have already gone out.