Friday, July 12, 2013

Mike Butler: A timeline of faulty racial policy

Mana Party leader Hone Harawira’s demand for no-deposit home loans for Maori is the latest strident demand that usually results in some concession from an appeasing government. The call for Maori self-determination may be traced to 1935, when the Communist Party of New Zealand ran in the general election of that year on a platform that included “self-determination for the Maoris [sic] to the point of complete separation.” 

Here are the key events, from 1967, that have led to treaty payouts so far totalling around $2-billion and a constitutional review that may entrench a two-tier race-based system of government:

1967 The Maori Affairs Amendment Act 1967 introduced compulsory conversion of Maori freehold land with four or fewer owners into general land, and increased the powers of the Maori Trustee to acquire by compulsion and sell so-called uneconomic interests in Maori land. A member of the New Zealand Maori Council slammed the move as “the last land-grab”.

1970 A specifically Maori-issues activist group known as Nga Tamatoa (The Young Warriors) emerged in 1970 out of a conference at Auckland University organised by Ranginui Walker.

1971 Nga Tamatoa disrupted the 1971 Waitangi Day ceremony, and in the following year it staged a walkout.

1974 Kirk Labour Government Maori Affairs Minister Matiu Rata pushed through the Maori Affairs Amendment Act of 1974, which gave Maori greater control over administration of their land, gave official recognition to the Maori language, relaxed the definition of who was Maori by dropping the requirement for a fixed degree of Maori blood, and created training programmes for Maori.

1975 Nga Tamatoa organised a march to Parliament from Te Hapua in the Far North, starting on September 14, 1975, demanding that no more Maori land would be sold. An 80-year-old activist named Whina Cooper led the protest.

The Treaty of Waitangi Act 1975 provided a legal process through which Maori Treaty claims could be investigated. That Act established the Waitangi Tribunal as a permanent commission of inquiry, and rather foolishly gave a handful of un-elected tribunal members the exclusive authority to interpret the treaty in a way that maintains Maori did not cede sovereignty.

1983 The Fisheries Act 1983 introduced a system to manage New Zealand’s fisheries by issuing quota. Seven fishing management zones were created, and within each zone, the Ministry of Agriculture and Fisheries issued individual transferable quota for species under pressure, which were snapper and crayfish.

1984 The Fourth Labour Government under Prime Minister David Lange voted in. Deputy Prime Minister Geoffrey Palmer, who did extensive treaty and Maori issues work, set up processes to implement race-based affirmative action without putting it to the vote, because addressing Maori grievances was deemed politically unpopular, and legislation to address grievances ran the risk of being outvoted.

1985 Palmer enabled the Waitangi Tribunal to investigate claims back to 1840 through the Treaty of Waitangi Amendment Act.
Far North tribes Rarawa, Aupouri, Ngati Kuri, Ngai Takoto, and Ngati Kahu were upset that the Fisheries Act 1983 did not give quota to those who supplemented their income with part-time fishing. Under the collective title Muriwhenua, these tribes filed a claim with the Waitangi Tribunal, in 1985.

1986 The State-Owned Enterprises Act 1986 was passed to change most of the government’s trading departments into corporations run for profit. Section 27 of the Act said that land subject to a treaty claim could not be transferred to another enterprise and could be recovered after a Waitangi Tribunal recommendation.

But Section 27 did not provide for land subject to claims after the act came into force. To ease concerns, the Labour government inserted what was to become the notorious Section 9, which said: “Nothing in this Act shall permit the Crown to act in a manner that was inconsistent with the principles of the treaty.” At that stage the “principles” were undefined.

1987 Before land and assets were transferred, the Maori Council sought a declaration to stop the transfer until arrangements were made to deal with Maori claims related to those assets. In New Zealand Maori Council v Attorney-General in 1987 the Court of Appeal held that the “principles” overrode everything else in the Act. The president of the Court of Appeal, Justice Robin Cooke, was the first to enumerate a summary of what he said were the six principles of the Treaty of Waitangi in the 1987 New Zealand Maori Council v Attorney-General decision (* see below).

In September 1987, Muriwhenua claimants and the Maori Council sought a ruling from the chairman of the Waitangi Tribunal to back a High Court injunction to stop the issue of fishing quota.

The State-owned enterprises injunction and the fisheries claim and settlement set the pattern for subsequent claims -- Waitangi Tribunal support, High Court injunction, appeasing settlement.

1989 Palmer set up a unit within the Justice Department to deal with the Crown’s response to treaty negotiations and claims. That unit wrote a 15-page booklet titled “The Principles for Crown Action on the Treaty of Waitangi” that was adopted by Cabinet and published on July 4, 1989. These principles of Crown action appear to have been the blueprint for government policy on treaty issues since 1989.

1992 The Muriwhenua fishing claim resulted in a $170-million “Sealord deal”, signed in 1992 by the Jim Bolger led National Party government. This deal was based on an ultra-generous interpretation that pre-existing and un-extinguished collective tribal fishing rights protected by section 88(2) of the Fisheries Act 1983, extended out to the 200km exclusive economic zone. Note, Maori coastal fishing in 1840 was limited to canoes that were not ocean-going.

1995 Waikato-Tainui achieved a $170-million financial redress package in 1995, where “the money is the acknowledgement by the Crown of their crime”. There was no Waitangi Tribunal report covering the bulk of the claim. The settlement deed created an agreed, re-written history of the Waikato war.

1998 Ngai Tahu’s $170-million settlement in 1998 was the fifth settlement of complaints that stemmed from a single dispute about boundaries and allegedly insufficient reserves in the 1848 sale and purchase of the 20-million acre Kemp block in the South Island. Because Ngai Tahu selected 34 forests as part of its settlement, it was eligible for Crown Forests Rental Trust rent from 1989, which led to a further $35-million payout in 2000.

While the Ngai Tahu’s 1998 deal was being negotiated, the Bolger National government proposed a $1-billion limit for the settlement of all historical claims known as “the fiscal envelope”. Tribal spokesmen of the day vehemently rejected such a limitation in advance of the extent of claims being fully known and the fiscal envelope was dropped before the 1996 election.

Both Waikato-Tainui and Ngai Tahu negotiated relativity clauses into their settlements. The government agreed to make payments to maintain the real value of Ngai Tahu’s and Waikato-Tainui’s settlements as a proportion of all treaty settlements. The $1-billion is in 1994 dollars and that equates to around $1.5-billion in 2012 dollars. The 1995 Waikato-Tainui $170-million settlement was described as “17 percent” of the theoretical $1-billion, and the Ngai Tahu deal 16.1 percent. Top-ups for both tribes were expected to start in 2012.

2003 A Court of Appeal judgement in 2003, known as Attorney-General v Ngati Apa, said that some Maori could seek formal ownership of a specific portion of seabed in the Marlborough Sounds.

2004  The Labour-led government legislated in favour of state ownership of the foreshore and seabed, in 2004, alienating two Labour MPs representing Maori electorates, Tariana Turia and Nanaia Mahuta. Turia resigned from the Labour Party, left parliament, formed the Maori Party, and won a by-election in her Te Tai Hauauru seat as a Maori Party candidate with 93 percent of the vote.

2008 The Clark Labour-led government set a deadline for filing historical claims at September 1, 2008. While only nine grievances had been documented in 1882. A total of 2034 claims were registered by June 2009.

The John Key led National party was voted into power on November 8, 2008. One election promise was to settle all treaty claims by 2014. The government has since said it would not meet that deadline. With 34 settlements completed, 8 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, as at August 16, 2012, there is a long way to go.

The Maori Party has been able to dominate the vote on a number of the Maori seats and wields disproportionate power courtesy of the MMP political system, and because of a confidence and supply agreement with the governing National Party. Its highest share of the party vote was 2.39 percent in 2008, which was not even half way towards the five percent threshold. This party has never competed in a general electorate. The presence of the Maori Party in the National-led coalition government has greatly advanced the Maori separatist cause.

2010  The agreement with the National Party resulted in the red, black and white “tino rangatiratanga” separatist flag appearing on the Auckland harbour bridge and other official buildings on Waitangi Day, 2010, sending a message to New Zealand that Prime Minister John Key had agreed to a goal of the Maori Party and the Maori sovereignty movement.

Turia launched Whanau Ora, an interagency approach to provide health and social services focussing on Maori families on April 8 that year. The scheme quickly attracted negative publicity because some funding went for family reunions and to a gang for a drug business.

Sharples quietly slipped out of the country and signed New Zealand up to the UN Declaration on the Rights of Indigenous Peoples on April 20. The declaration is problematic because Article 26 requires recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous, which would be impossible to implement.

Sharples and Turia set in motion a process that led to the Marine and Coastal Area (Takutai Moana) Act 2011 replacing the Foreshore and Seabed Act 2004, enabling tribal groups to claim customary title to the coastal area.

Sharples also set in motion a review of New Zealand’s constitution. The panel, launched on December 8, 2010, was a part of the agreement between National and the special-interest Maori Party. Critics say the most likely outcome of the largely secret constitutional review by National and Maori parties could be a proposal to place the principles of the treaty of Waitangi in a written constitution based on biculturalism. This would mean that all Acts of Parliament would be tested against these principles and the rights outlined in the treaty will be able to be enforced by Maori in a way that’s not possible at present. In effect such power will legally enforce Waitangi Tribunal decisions as well. The governance of New Zealand could be radically changed. This would challenge New Zealand’s social cohesion.

* Justice Cooke’s treaty principles
(a) ‘[T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’

(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.

(c) The principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’

(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’

(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’

(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation.

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