Mike Butler: How treatyist avoids scrutiny

A government program is the nearest thing to eternal life we will ever see on this earth, according to the late United States President Ronald Reagan. One such eternal-life programme in New Zealand concerns treaty settlements. The architect of that programme is Sir Geoffrey Palmer, who tells how he set up the process in his new book titled Reform – A Memoir. Regarding critics as racists, he set the policy in motion when his boss was out of the country, he incorporated a redefined version of the treaty into law, and did all that without any regard to the financial and social impact these policies would have.

Sir Geoffrey is an aging white liberal who has spent his entire working life cocooned in a privileged environment, and whose conscience appears to drive him to improve the lot of those he deems less fortunate. But his cocoon means he does not really know much about those he purports to help.

Maori “were subjected to rank injustice in colonial times”, Sir Geoffrey writes without saying what those injustices were, adding “it has taken a long time to remedy those injustices, and the process is not yet complete”.

Sir Geoffrey was Justice Minister in the 1980s Lange Labour government. Since his speciality is law and politics, it is possible he does not know too much about history. But New Zealand has a short history, with the history of white settlement very short. This means you don’t have to go far to find out all there is to know.

There is little doubt that the British believed they were proceeding in an enlightened and humane manner in the settlement of New Zealand because not only was the consent of the indigenous people sought and acquired through the Treaty of Waitangi, any land needed for the settlers was bought and paid for. By contrast, earlier British colonisation involved taking land, importing slaves for labour, and gunning down unwilling natives, circumstances the newly humanitarian British wished to avoid.

Therefore, the “rank injustice” that Sir Geoffrey alleges, in the third sentence of his treaty chapter, took place did so within the context of settlement proceeding by consent, with all land used by settlers being purchased. In fact, the British (government and settlers) bought 24.1-million hectares of New Zealand’s total land area of 26.8-million hectares.

In the sixth sentence, Sir Geoffrey presents the corridors-of-power version of the usual retort “you are racist if you disagree” by saying “there is an unpleasant underside to the New Zealand psyche when questions of race are debated.”

The Lange-Douglas-Palmer government of the 1980s, most especially Sir Geoffrey, began looking at extending the jurisdiction of the Waitangi Tribunal back to 1840 “to deal with the manifest injustices that had been visited upon Maori by the settler Parliaments of the nineteenth century”. Sir Geoffrey wrote that he “did some research on the outstanding grievances and while they were substantial I thought they were manageable. It has taken longer than I thought, although the end is in sight”.

Sir Geoffrey announced the policy when Prime Minister David Lange was away in Europe on February 2, 1984.

What Sir Geoffrey does not say is how those claims multiplied once compensation was offered. By the time another Labour government set a deadline for historical claims, that being September 1, 2008, a total of 2034 historical claims were registered. By contrast, in 1882 a delegation took just nine grievances to Queen Victoria. Sir Geoffrey apparently failed to consider that the promise of compensation always acts like a magnet to claims.

Sir Geoffrey mentions “the rediscovery of the Maori language version of the treaty, from which has flowed a new political vocabulary” as striking features of the Motunui report.

He does not mention how the rediscovery of the Maori language version led to a re-interpretation of the treaty. Sir Hugh Kawharu, who was both a Waitangi Tribunal member and Ngati Whatua o Orakei claimant, is credited with re-defining the words “kawanatanga” and “rangatiratanga” to create a treaty that confirms Maori sovereignty over all things Maori while giving to the Crown limited power to control new settlers.

In his re-interpretation that is posted on the Waitangi Tribunal’s website, Sir Hugh avoids the simple fact that the treaty was drafted in English and translated into Maori, which means that the meaning and intent is clear in the English. The word “kawanatanga” that appears in the Maori text was used to translate “sovereignty” in the English, while “rangatiratanga” was used to translate “possession”.

Sir Geoffrey gained Cabinet authority to set up in the Ministry of Justice the Treaty of Waitangi Policy Unit (that later became the Office of Treaty Settlements) to deal with the Crown response to treaty negotiations. That unit created a report later adopted by Cabinet and published on July 4, 1989, as “Principles for Crown Action on the Treaty of Waitangi.”

Those five principles were: Kawanatanga (the principle of government), rangatiratanga (self-government), equality, cooperation, and redress. Notice how the government that Sir Geoffrey was a part of at this point had accepted that “rangatiratanga” meant “self-government” whereas in the original treaty of 1840, “rangatiratanga” translated “possession”.

The treaty policy enabled Sir Geoffrey to include treaty clauses in legislation, including Section 4 of the Conservation Act 1987 which said “this Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”, with a similar reference to treaty principles in the Environment Act 1986. The Resource Management Act spelled out a number of Maori concepts concerning environmental management. The State-Owned Enterprises Act 1986 had section 9 that provides: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

Sir Geoffrey wrote that the settlement process has been insulated “from the ravages of extreme opinion” but he did not specify how this has been achieved.

1. He does not say that the government and claimants agreed upon treaty breaches before, yes before, a Waitangi Tribunal inquiry into the claims has been completed. The public assumes that the tribunal conducts an inquiry to establish the validity of the claim.

2. He does not say that that the Waitangi Tribunal is not an impartial panel of inquiry but has become an advocate for Maori interests to the extent that claimants rely on a sympathetic report as evidence for court action as we have seen in the recent claim about water rights.

3. He does not say that treaty settlements are legally binding when they are signed, which means the select committee process and passage through parliament has no bearing on the already agreed settlement. In this manner, most voters and taxpayers have no input in the process whatsoever.

As justification, Sir Geoffrey writes: “I thought then and I still think now that the most serious challenge New Zealand faces is to avoid having a permanent underclass defined by race”. He seems unaware that Maori social indicators have worsened, yes worsened, while the treaty settlement process has proceeded.

According to information provided by the Ministry of Social Development last year, Maori unemployment in 1981 was 14 percent, in 1993 it was 24 percent, and in 2012, it was 36.5 percent. In 2002, 38 percent of those on the domestic purposes benefit were Maori, and by 2012, it was 42.7 percent. In 2002, 23 percent of those on a sickness benefit were Maori, while in 2012 it was 28 percent. In 2002, 19 percent of those on an invalid’s benefit were Maori, while in 2012 it was 22.4 percent.

In his new book, Sir Geoffrey has confirmed that while in government he behaved like an autocrat, exercising absolute power. He appears convinced that he knows best, and has set up a system to ensure that his view of the universe is imposed regardless of what anyone else may think.

Therefore, if you think the treaty settlements programme has achieved the eternal life that Ronald Reagan attributed to government programmes, you may now understand how Sir Geoffrey Palmer carefully set up policies and processes that operate under the radar and outside of meaningful parliamentary oversight.

Source:
Maori, the Treaty and the Constitution – Rt. Hon. Sir Geoffrey Palmer QC, http://maorilawreview.co.nz/2013/06/maori-the-treaty-and-the-constitution-rt-hon-sir-geoffrey-palmer-qc/