Mike Butler: Jamie Whyte and treaty settlements

Act Party leader Jamie Whyte is only partly correct to say that the reparations made to iwi by the Waitangi Tribunal are recognition of property rights. After his excellent analysis of the place of race in law delivered in a speech at Waikato this week, he could subject treaty settlements to his incisive accurate thought.

To what extent are treaty settlements to do with property rights? Working for the Waitangi Tribunal, historian Professor Alan Ward analysed the 650 or so historical claims lodged between 1985 and 1997, and, sorted them to match the tribunal’s interpretation of the treaty and the 1986 treaty principles.

Ward’s seven categories were:

1. The “loss of rangatiratanga”, which includes the loss of resources, and the exclusion of Maori from the decision-making institutions.

2. Purchases under the native land acts, which extended well into the 20th century, particularly the “individualisation of title”, which the colonial government promoted partly to prompt Maori to develop their land.

3. Crown purchases from 1840 to 1865, which were manipulative and denied or discouraged Maori leasehold and joint venture arrangements and the coexistence of aboriginal title rights.

4. Confiscation or forced cession after military occupation, in particular districts, although the area of land and the number of people affected were much less than were subject to land purchasing.

5. The colonial government’s failure to ensure that adequate reserves of land remained in Maori ownership, or in trust, to fund Maori welfare.

6. The loss of ownership or control of rights in foreshores and inland waterways.

7. Public works takings disproportionately imposed upon Maori land, the rating of Maori land, and the good and bad consequences of development schemes.

Land sales and purchases is the most obvious property rights category of claims under the treaty. Land changed hands between individual chiefs and settlers before the treaty was signed, mostly between government land purchase officers and chiefs from 1840 to 1865, and via the Native Land Court from 1865.

A purchase means acquisition of something, in this case land, by paying for it, and a sale is the exchange of a commodity, in this case land, for things or money.

The New Zealand Company paid for the Port Nicholson block in 1839 with 120 muskets and 21 kegs of powder, as well as a collection of iron pots, soap, axes, fish hooks, shirts and other clothing (including red night caps), slates and pencils, looking glasses, beads, umbrellas, sealing wax, and 144 jews harps.

A handful of Ngai Tahu chiefs sold most of the 15,121,483ha South Island in 10 deals over 20 years from 1844 for a total of ₤14,750 which is $1.6-million today. Government agents had purchased from chiefs by the end of 1842 land in Auckland totalling 92,000ha the price being £4196 that is more than $472,000 in 2014. Bear in mind the land was undeveloped – wild, marshy. Roads were required. Settler money and labour transformed the landscape into farms and towns and land values increased as the economy grew.

Claimants would like everyone to believe that the land was stolen but it was sold.

New Zealand has 26.8-million hectares of land. A total of 1.2-million hectares were confiscated during the 1860s wars (much of which was returned at the time). Approximately 1.47 million hectares remains as Maori land (including customary land). Therefore, successive governments bought 24.13-million hectares.

If chiefs were clear about the land they owned 174 years ago and were happy to exchange it for money and things back then, it becomes clear that complaints about land sales are more demands for more money rather than any actual breach of property rights.

Moreover, any restrictions by the colonial government on chiefs regarding land sales, as current treaty claimants appear to prefer, would have been an infringement of the property rights of the land-owning chiefs.

Confiscations involved property but were arguably not a breach of a property right but were a consequence of tribes breaching the law, or the treaty, by taking up arms against the government. A confiscation would be a breach if those who had had their land taken had breached neither the law nor the treaty. Waitangi Tribunal reports put much effort into arguing that tribes had not rebelled when clearly some had.

In English law, confiscation embraces forfeiture of goods and escheat of lands for crime or in default of heirs. In the United States among the "war measures" during the American Civil War, acts were passed in 1861 and 1862 confiscating property used for "insurrectionary purposes" and the property of those engaged in rebellion. The law allowing for confiscations in New Zealand, the New Zealand Settlements Act, was passed in 1863.

Armed conflict with dissident tribes had been going on for nine years before the confiscations became legal and continued a further nine years until February 14, 1872. The certainty of land confiscation was a decisive factor in the government defeating rebellious tribes in the 1860s.

A commission chaired by Supreme Court Judge William Sim was set up in 1926 to consider whether confiscations in Taranaki, Waikato, Tauranga, Whakatane, Opotiki, Urewera, Gisborne, and Hawke’s Bay exceeded in quantity what was fair and just. At that stage the inquiry was not linked to Treaty of Waitangi obligations because the government held that Maori who fought against the government had repudiated the treaty.

That commission recommended a ₤5000 annual payment to Taranaki tribes for land unjustly confiscated. Sim found that confiscations in Waikato were excessive and recommended an annual payment of £3000. Waikato initially wanted the land returned, but received annual payments from that year, although they became intermittent during the 1930s.

The 1944 Taranaki Maori Claims Settlement Act was intended as a final settlement of claims in that area. The Taranaki Maori Trust Board had received a ₤5000 annuity since the Sim commission recommendation, plus a £300 lump sum payment for loss of property at Parihaka in 1881. The 1944 Act described it as a “full settlement and discharge of the aforesaid claims”.

The Waikato-Maniapoto Maori Claims Settlement Act 1946 was a final settlement of grievances over the confiscation of Maori lands in the Waikato and provided for the establishment of the Tainui Maori Trust Board to receive ₤5000 a year in perpetuity plus a further ₤5000 and £1000 a year for 45 years, to cover arrears since 1936, when negotiations with the Labour government began.

The 1985 amendment to the Treaty of Waitangi Act that allowed further claims all the way back to 1840 enabled tribes to re-open all old claims to get more money. In the latest round of settlements since 1989, Waikato tribes have so far received or agreed to receive $322-million which is a far cry from the $170-million amount of the Waikato-Tainui 1995 settlement. Taranaki tribes have received or agreed to a total of $255.5-million.

Therefore it is clear that in the categories of land sales and land confiscations, there is much more to treaty settlements than simply property rights, which the current Act Party enthusiastically supports.

The so-called “loss of rangatiratanga” is a conjured-up grievance that owes its existence to the redefined terms of the revised Treaty of Waitangi.

As a philosopher, Jamie Whyte would be familiar with the importance of definition of terms. In philosophy there is a concept known as redefinition, either high or low. It is the manoeuvre of redefining a term more or less tightly, so that an apparently false statement is made true if interpreted in the new way. This is pretty much what has been done with the Treaty of Waitangi and it is all to do with two words – “kawanatanga” and “rangatiratanga”.

As you know, the treaty was drafted in English and translated into Maori. Therefore, the meaning of the treaty is clear in both the source English text and in the Maori text. The word “sovereignty” in English was translated as “kawanatanga” and “ownership” as “rangatiratanga”.

Up to the late 1980s there was simply no question that the treaty was a simple three-article agreement with a preamble and a postscript that says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property.

Then a Waitangi Tribunal member who was also an Auckland claimant retranslated the treaty and changed the meaning of those two words so that “kawanatanga” meant “governance” and “rangatiratanga” meant “unqualified exercise of the chieftainship”.

That illustrious tribunal member, the late Sir Hugh Kawharu, argued that "there could be no possibility of the Maori signatories having any understanding of government in the sense of sovereignty", and "'unqualified exercise of the chieftainship' would emphasise to a chief the Queen's intention to give them complete control according to their customs".

In this way was born the “yeah but . . .” interpretation of the treaty and New Zealand history in which 20th century claimants could say that what the 19th century chiefs really meant when they were signing the treaty was that the British governor could govern British settlers while the chiefs could carry on being chiefs.

That created the concept that the wicked white coloniser denied chiefs the right to practise their “rangatiratanga”. If chiefs were denied their rights to be chiefs then compensation is in order. Therefore every Waitangi Tribunal land report includes lengthy sections on “loss of rangatiratanga”.

The argument may be easily disproved by looking at accounts written at the time to see what the chiefs actually said during the debate on the treaty on February 5, 1840. Missionary William Colenso left a written record of that debate.

Colenso described how chief Tareha understood that, by consenting to a governor, he would be giving up his sovereignty to a higher law. He said: “No Governor for me – for us native men. We, we only are the chiefs, ruler. We will not be ruled over. What! Thou a foreigner, up, and I down? Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low? No, no; never.”

Adequacy of reserves, control of foreshores and inland waterways, and public works takings are further areas that should be exposed to the bright light of reason. There is much more to treaty settlements than recognition of property rights.

The treaty settlement process long ago departed from seeking truth and reconciliation. The Waitangi Tribunal has given up any semblance of balanced inquiries and simply advocates for claimants. Evidence is not tested.

In the absence of quantified actual loss, the Office of Treaty Settlements has decided to give dollars to every tribe asking, calculating the amount paid by current tribal membership and the difference between land claimed in 1840 and the area of land owned by the tribe today.

Few want to discuss the issues involved and anyone who does is called a racist. It is heartening to see Act’s Jamie Whyte putting his head above the parapet on treaty politics.