Mike Butler: How to abolish Waitangi Tribunal

Since Rodney Hide’s column in today’s New Zealand Herald has kicked up a torrent of comments, here’s all you might like to know about the Waitangi Tribunal

a.What is the Waitangi Tribunal and why was it established?

In a bid to get Maori nationalist protest off the streets and provide an avenue for Maori grievance, the Treaty of Waitangi Act 1975 set up the Waitangi Tribunal as a permanent commission of inquiry to examine any claim by Maori over any law, regulation, or acts, omissions, policies, or practices of the Crown that may have given offence, and gave a handful of unelected tribunal members the exclusive authority to interpret the treaty. The Act was the first legal recognition of the treaty. The Act aimed to examine current policies and practices against principles of the treaty but it did not allow the tribunal to investigate historical breaches. The Act was passed a couple of days befor the Maori Land March led by Dame Whina Cooper delivered a 60,000-signature petition to Prime Minister Bill Rowling.

In 1985, Justice Minister Geoffrey Palmer enabled the Waitangi Tribunal to investigate claims back to 1840.

Claims started to trickle in, began to multiply, and became more complex. In 1882, chiefs had just nine grievances that they took to England. In contrast, a total of 2034 claims were registered with the Waitangi Tribunal by June 2009. Since more than 2000 claims came into existence after a naïve government created the opportunity make all manner of claims, it appears that the Waitangi Tribunal is in fact somewhat of a claims magnet.

b.What does the Waitangi Tribunal do?

The Tribunal can examine any claim by a Maori or group of Maori who claim to have been prejudiced by laws and regulations or by acts, omissions, policies, or practices of the Crown since 1840 that are inconsistent with the principles of the Treaty of Waitangi.

The tribunal makes findings on whether a claim is well founded or not, and outlines if and how the principles of the treaty have been breached. The tribunal claims to conduct a robust inquiry, identifying all parties and their representatives in a transparent process that clarifies key issues, resolves points of contention, and delivers parties ready to negotiate a settlement. It publishes its findings in a report to the Minister of Maori Affairs, and may recommend to the Government what could be done to compensate the claimant (or claimants) or to remove the harm or prejudice that they have suffered. The government is not bound by recommendations of the tribunal.

c.What has the Waitangi Tribunal achieved?

Investigations by the Waitangi Tribunal have helped complete 34 settlements, there are 12 awaiting legislation, four awaiting tribal ratification, 16 agreed but at the detailed negotiations stage, a further 15 under negotiation, and a number of others yet to be negotiated. Total redress agreed to and mostly paid so far (to April 14, 2012) is $1.722-billion.

d. What is wrong with historical compensation?

1. The types of claims that came in once claims back to 1840 were allowed led the Waitangi Tribunal to redefine the nature of grievance so that everything that happened since 1840 became grounds for compensation. In 1882, the complaints involved armed conflict and imprisonment. In 1997, the complaints had moved on from those already raised and included issues that only appeared after the treaty was re-interpreted from 1985; and after the various treaty principles were created. These complaints included an alleged “loss of rangatiratanga”, purchases under the native land acts, Crown purchases from 1840 to 1865, an alleged failure to ensure that adequate reserves of land remained, the loss of ownership or control of rights in foreshores and inland waterways, and public works takings, all became grievances, in addition to the more obvious complaints over confiscation.

2. Waitangi Tribunal reports are not balanced, impartial inquiries. They are carefully constructed persuasive arguments in which history is woven around the tribunal’s flawed interpretation of the treaty, so-called treaty principles, and seven broadly defined grievances to justify the payment of compensation. They commit the ultimate faux pas of judging the past by the standards of the present.

3. It has also become clear that most claims result in financial and cultural redress irrespective of the slender basis of the claim. For instance, three northern South Island tribes, Ngati Apa ki te Ra To, Rangitane o Wairau, and Ngati Kuia, are currently standing in line for settlements of $25-million to $28-million each even though they did not control any territory at all in 1840, which could imply that they had no basis for any claim at all.

4. The confiscation claims, mostly in Waikato, Taranaki, and the Bay of Plenty largely ignore the fact that tribes in these areas took up arms against the government, lost, and had lands confiscated as punishment, much of which was soon returned.

5. Tribunal reports tend to rule against the government and absolve Maori claimants. For instance, the Ngati Pahauwera settlement penalizes the government for failing to defend two fortified villages at Mohaka from massacre at the hands of Te Kooti, yet the Rongowhakaata package specifically compensates Te Kooti’s descendents. Taxpayers foot the bill in both cases. Te Kooti was never brought to account for his crimes.

6. The reports ignore or discount a series of full and final settlements made in the 1940s. South Island tribe Ngai Tahu had five settlements of what was essentially one grievance that rapidly multiplied once claims back to 1840 were allowed, and will receive top-ups of 16.1 percent of all settlements over $1-billion (in 1994 dollars, or $1.5-billion today). Waikato-Tainui will get 17 percent.

e. Has this benefited or not benefited NZ?

The influx of settlement wealth prompted bickering and a few financial blunders for Waikato-Tainui before they got their business model ticking over properly. Ngai Tahu are cited as role models for wealth wizardry. But Taranaki tribe Ngati Tama lost all of its $14.5-million payout in failed investments. The Port Nicholson Block Settlement Trust and Ngati Toa are in a legal wrangle over Wellington commercial properties included as financial redress. Devonport residents and Ngati Whatua are at loggerheads over the inclusion of the naval base there as part of financial redress.

Settlements were initially promoted as creating an economic base for Maori, but 23 years later it has become obvious that the gains have been captured by a small elite of neo-tribal capitalists who have re-invented themselves as the Iwi Leaders Group which has regular meetings with the prime minister. Their fundamental business plan seems to be to get free stuff from the government, whether it is fish quota, forests, farms, commercial buildings, rights of first refusal to state assets, rights to the coastal area, water rights, radio spectrum, and so on, and rent it out.

f. Should the Waitangi Tribunal continue as a forum for Maori-only grievances as they arise?

In a democratic, multi-racial society based on the principal of equality there is no place for a forum to deal with Maori-only grievances as they arise. The Waitangi Tribunal unwittingly creates racial inequality.

g. How could the Waitangi Tribunal be abolished?

The Waitangi Tribunal could be abolished by repealing Sections 4-8 of the Treaty of Waitangi Act 1975, leaving any final historic settlements that are still in the pipeline to be negotiated directly with the Crown - since more and more iwi are choosing to do that anyway.

I would argue that an inquiry into settlements to date is warranted. Successive governments have created a monumental problem by heading down the path of historical compensation. It will become increasingly difficult for any government to complete the process, while it is impossible to go back.

Read Rodney Hide’s column at http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10826283