He Kupu Taurangi E-Book

Christopher Finlayson

• Herausgeber: Huia Publishers
• Kategorie: Fachliteratur
• Sprache: Englisch
• Veröffentlichungsjahr: 2021

Beschreibung

As Minister for Treaty of Waitangi Negotiations from 2008 to 2017, Christopher Finlayson completed an unprecedented number of settlements with iwi. In 2012 alone, Parliament passed more Treaty legislation than it had over the previous twenty years. Christopher Finlayson gained unique insight into the elements of successful negotiations and was involved in developing legal innovations to reach settlements. In this book, the authors analyse the essential components of settlements, reference particular settlements in looking at themes such as natural resources, co-governance and legal personality, and they discuss the impact of the process and outcomes on the relationship between Māori and the Crown.

Leseprobe

First published in 2021 by Huia Publishers39 Pipitea Street, PO Box 12280Wellington, Aotearoa New Zealandwww.huia.co.nz

ISBN 978-1-77550-615-7 (print)

ISBN 978-1-77550-625-6 (ebook)

Copyright © Christopher Finlayson and James Christmas 2021Front cover image: The Apology by Piera McArthurBack cover image copyright © Parihaka Papakāinga TrustTitle page image by Tame lti

This book is copyright. Apart from fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without the prior permission of the publisher.

A catalogue record for this book is available from the National Library of New Zealand.

Published with the assistance of

Ebook conversion 2021 by meBooks

This book is dedicated to

The Honourable Dame Tariana Turia dnzm

About the Authors

The Honourable Christopher Finlayson qc ba llm hon. lld (vuw) was elected as a National Party member of Parliament in 2005 and served as Attorney-General and Minister for Treaty Negotiations (2008–17), Minister for Arts, Culture and Heritage (2008–14), Associate Minister for Māori Development (2011–17) and Minister for the New Zealand Security Intelligence Service and Government Communications Security Bureau (2014–17). He retired from Parliament in 2018 to return to legal practice.

James Christmas ma llb is a barrister who was senior ministerial adviser to Christopher Finlayson (2011–16) and to Prime Ministers Sir John Key and Sir Bill English (2016–17).

Contents

Foreword

Sir Tipene O’Regan

Acknowledgements

Introduction

Part 01The Treaty of Waitangi and Treaty Settlements

Chapter One

A Brief History

Chapter Two

Minister for Treaty Negotiations

Part 02Essential Components of Settlements

Chapter Three

Mandate

Chapter Four

History and Apology

Chapter Five

Financial Redress

Chapter Six

Cultural and Relationship Redress

Part 03Natural Resources

Chapter Seven

Land and Conservation Redress

Chapter Eight

Co-governance with Local and Regional Government

Chapter Nine

Legal Personality: The Ngāi Tūhoe and Whanganui River Settlements

Chapter Ten

Marine and Coastal Area

Part 04The Crown–Māori Relationship

Chapter Eleven

Safeguarding Settlements

Chapter Twelve

The Future Crown–Māori Relationship

Afterword

Ivan Kwok ONZM

Appendix

List of Treaty Settlements and Notable Redress

Endnotes

Glossary

List of Statutes and Cases Cited

Reference List

Index

Foreword

Sir Tipene O’Regan

Takahanga Marae, Kaikōura, 21 November 1997. A day forever etched in my memory. The Crown and Ngāi Tahu met to sign the Deed of Settlement to resolve the historical grievances of Ngāi Tahu with the Crown. This day had been a long time coming. We date Te Kerēme, the Ngāi Tahu Claim, from 1848 – 150 years and seven generations. Our ancestral struggle had been carried through a variety of phases and at huge financial and social cost. It was now being brought to a measure of settlement under the rubric of Crown breaches of its obligations arising from the Treaty of Waitangi.

In 1985, the jurisdiction of the Waitangi Tribunal had been extended to permit inquiry into grievances dating from 6 February 1840, and we responded by lodging a claim in the Tribunal, subsequently known as Wai 27. In 1992, the Tribunal, chaired by the late Māori Land Court Judge Ashley McHugh and supported by a distinguished panel, reported and upheld the vast majority of our claims. We thereupon approached the Crown about commencing negotiations. When those overtures were rebuffed, we went back to the Tribunal for remedies. When we arrived for the scheduled hearing, we found that the Wai 27 Tribunal had been dismissed and replaced by the Tribunal President, Judge E.T. Durie, who promptly adjourned the application for remedies. We thus commenced proceedings in the High Court. There followed over two years of intense litigation before the Crown was prepared to come back to the negotiating table.

And so, after that lengthy, sometimes torturous, and very litigious journey, there we all were at Kaikōura to sign the Deed of Settlement. On the Crown side was Prime Minister Bolger, in one of his last public appearances in that role. His successor, the incoming Prime Minister Shipley, was present, as was New Zealand’s first Minister for Treaty of Waitangi Negotiations, Douglas Graham. In support of the occasion, there was, as well, an impressive whakaeke of other iwi led onto the marae by a group of notable Waikato-Tainui rangatira.

On the Ngāi Tahu side, there were representatives of all our Papatipu Rūnanga, our Kaiwhakahaere, Charles Crofts, and the many legal and economic advisers who had worked alongside us for many years. In the background that day was a young Bell Gully lawyer called Chris Finlayson, who had been responsible for leading the preceding litigation efforts with John Upton qc. On that day, I could not have contemplated that, eleven years later, Chris would himself be Minister for Treaty of Waitangi Negotiations, an office he was to hold with considerable distinction from 2008 to 2017.

When some politicians leave office, they write an apologia, a book describing their experience in politics and expounding on the central role they had played in the life of the nation. Readers will be familiar with this literary genre. Christopher Finlayson, working with historian and fellow barrister James Christmas, has presented a much more agreeable postscript to his public life. I commend both authors for being prepared to take on this important task. It is both timely and necessary for this intergenerational New Zealand project to be chronicled and analysed.

The book takes an unapologetically positive view of Treaty settlements and their contribution to the country. In doing so, it acknowledges their obvious imperfections. Having been at the heart of several major Treaty negotiations over some decades myself, I can certainly attest to their flaws. But there cannot be any serious argument that settlements have not been a positive development for New Zealand. As emerges from the chapters herein, they represent a best endeavour, both by the Crown to address its manifold failings since 1840 and by iwi to look to the future with confidence.

The authors cover the various components of Treaty settlements, both financial and cultural. Of particular note is the chapter devoted to the importance of the historical account and apology. The authors make the crucial point that an apology is not a mere pro forma admission of guilt and regret but a carefully drafted and negotiated document agreed between the Crown and settling iwi. Before an apology is given, it has to receive the consent of those to whom it is directed. I note with great interest the comments made about the way in which an apology has been received in various Treaty settlements and the intensity of the reaction. I was particularly interested in and pleased to see reference to the 2017 reconciliation with Parihaka. That reconciliation will eventually be considered a major event in the history of the country.

The authors have done a great service to the country by covering in detail the significant innovations that have occurred in settlements over the past decade, culminating in the settlements over the Whanganui River and with Ngāi Tūhoe, which are the subject of Chapter Nine. This chapter will be of great interest to readers both in New Zealand and overseas. The Whanganui River and Tūhoe settlements, featuring, as they do, the innovative concept of legal personality in place, will, in my view, come to be seen as major turning points in the history of settlements with indigenous peoples. Throughout, the book provides insight into a question that has puzzled many of us: how was Christopher Finlayson able to get his Cabinet colleagues to agree to so many settlements in nine years? I have been close enough to the action to know that it was seldom easy and accomplished only with a high level of advocacy matched with mutuality of respect and trust.

The narrative takes a slight diversion in Chapter Ten to consider the vexed issue of the foreshore and seabed. At the time of writing, several major cases are being litigated under the Marine and Coastal Area (Takutai Moana) regime. It will be interesting to see how the courts deal with these cases.

The final two chapters are perhaps the most valuable as they pivot from the past to look towards the challenges of the future. Throughout, the authors emphasise that Treaty settlements need to be protected at all costs and that the responsibility for safeguarding settlements rests fairly and squarely with the Crown. The Kermadecs debacle covered in Chapter Eleven shows what happens when the Crown ignores or forgets it obligations. As the authors say, this kind of ignorance will put Treaty settlements at risk in the years to come. I am pleased that, at least at the time of writing, the Crown’s belated acknowledgement of its Treaty settlement obligations means that the Kermadecs proposal has been put on ice. However, I note a variety of comparable proposals to that of the Kermadecs are in train and at various stages of advancement. It is sufficient here to observe that continuing Māori cynicism is more than justified.

The book concludes with some very interesting observations on the future of New Zealand. The authors’ proper emphasis is that the nature of the Crown–Māori relationship is now a Crown–iwi relationship. That is a natural development to which Treaty settlements have contributed. They are correct that the future of ‘pan-Māori’ organisations will need to be addressed at some stage. The Crown cannot meet its Treaty obligations to iwi unless it engages directly with iwi. Times have moved on.

Back in 1998, I was pleased to play my part in my iwi achieving a reasonably just settlement with the Crown. I go back to that day in Kaikōura, with my pen poised to sign the Deed of Settlement, and it was not without some trepidation that I affixed my signature. I wondered if I could have done better for my iwi. In the years that have followed, I have not regretted my decision. However, in a variety of ways, the Crown has failed to meet even its most recent settlement obligations, but that does not offer me cause for regret. Not to have signed, as more than one of my colleagues proposed, would have deprived us of the capacity for continuing resolution. Treaty settlements might be said to be the end of the beginning! There is much in the iwi–Crown relationship still to be navigated!

Treaty settlements have the same failings, flaws and imperfections as the humans who negotiate them. They will not ever satisfy everyone, not least those in the settling iwi who feel redress could be greater. That having been said, New Zealanders should be proud that we have established one of the most effective systems in the world for addressing historical wrongs of indigenous peoples. And we have done so with a minimum of fuss and, by and large, with generosity of spirit.

In the end, Treaty settlements are precisely what the title of the book alludes to: a promise – and one that must be kept.

Sir Tipene O’Regan is of Ngāi Tahu and Irish descent. His Irish ancestors come from the West Coast and his Ngāi Tahu ancestors come from Awarua and Moeraki. He was educated at St Patrick’s College, Wellington, Wellington Teachers’ College and Victoria University of Wellington.

He was Chief Negotiator of the Ngāi Tahu settlement claims for over a decade. He was, as well, the principal architect of the Treaty Fisheries Settlements of 1989 and 1992.

Sir Tipene has held innumerable public positions during his career, including on The National Museum of New Zealand, the Historic Places Trust, the New Zealand Geographic Board, the Broadcasting Corporation of New Zealand, Transit New Zealand and many others. He was the long-serving chair of the Ngāi Tahu Māori Trust Board, Ngāi Tahu Holdings Corporation, Mawhera Incorporation, Te Ohu Kaimoana and the Sealord Group.

He has received Honorary Doctorates from the University of Canterbury, Lincoln University and Victoria University of Wellington and remains an Adjunct Professor at the Ngāi Tahu Research Centre at the University of Canterbury.

Acknowledgements

The opinions expressed in this book, along with any omissions or errors, are solely those of the authors.

We thank for their advice and assistance Rt Hon Jim Bolger onz, Sarah Boyle, Rt Hon Sir Bill English knzm, Rt Hon Sir Douglas Graham knzm, Andrew Grant, Professor Mark Hickford, Hon John Luxton cnzm qso, Richard May, Peter McKenzie cnzm qc, the late Patricia Morrison qsm, Dame Claudia Orange dnzm, Ben Thomas and others who reviewed or provided comments on the text.

Special thanks to Lucy Askew for her thorough review of the text and ruthlessly objective appraisal of its contents.

We acknowledge Sir Tipene O’Regan for providing the foreword and the late Ivan Kwok onzm for providing the afterword to the text.

The New Zealand Law Foundation provided a grant that assisted with the research and writing of the book.

We are grateful to Audrey Young and the New Zealand Herald for permission to use the table on page 195.

Finally, thank you to our editors and the staff at Huia Publishers, without whose support this book would not have been written.

Greeting my old friend Tiwha Bell from Ngāti Maniapoto at Parliament.© Te Arawhiti – Crown Copyright

Introduction

In 2010, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, visited New Zealand. His subsequent report said, ‘[T]he Treaty settlement process in New Zealand, despite evident shortcomings, is one of the most important examples in the world of an effort to address historical and ongoing grievances of indigenous peoples, and settlements already achieved have provided significant benefits in several cases.’1

Between 2008 and 2017, I took charge of this work as Minister for Treaty of Waitangi Negotiations in New Zealand’s National-led government. Over those nine years, we made extensive progress, which often flew under the radar, with the exception of some of the major settlements. This was sometimes useful from a political perspective; I was always mindful of headlines making my generally tolerant colleagues nervous about some of the more novel redress I had in mind. By the time I left office, Treaty settlements had been signed with over 60 percent of all iwi and hapū expected to settle and a number more were on the verge of completion.

This book tells the story of that work and its impact on the relationship between the government and Māori. It aims to illustrate for New Zealand readers that Treaty settlements have made our country more successful than it would have been without them and emphasise to any international readers that New Zealand’s approach is worthy of a closer look.

As the following chapters show, Treaty settlements are no panacea. They can address but not cure the past and there is a wide range of views among Māori about their adequacy. Yet no other country has attempted a national reconciliation project quite like New Zealand’s. I think our ability to do so has been assisted by three factors. First, the size of the country. Former UK Foreign Secretary Douglas Hurd once suggested that New Zealand’s small size inclines us to ‘adventures of policy’ and that our approach to dealing with our past is a reason why anyone interested in politics needs to keep eyes and ears open here.2 That is certainly the case with Treaty settlements. Secondly, for all the problems with its translation and interpretation, we have been aided by the existence of the Treaty of Waitangi, an overarching treaty between the Crown and Māori. We have not had to deal with the challenges posed to other countries by an unclear legal or political basis for a similar process. Thirdly, settlements have been made possible by the national character and outlook of New Zealanders – Māori and non-Māori – who, barring a few vocal dissenters on both sides, have shown open-mindedness and tolerance to addressing these matters. It is this character that has allowed New Zealand – in the words of one of my predecessors as Minister, Sir Douglas Graham – more chance of resolving these matters fairly, quickly and calmly than any other country in the world.3

Structure of the text

The text is in four parts.

Part One covers the Treaty of Waitangi and how settlements began in New Zealand.

Chapter One gives a very brief introduction to the Treaty of Waitangi and the first major Treaty settlements that occurred with Waikato-Tainui and Ngāi Tahu. While much of this material will be known to many New Zealand readers, it aims to provide some background for readers unfamiliar with the New Zealand context. Chapter Two looks at the overarching politics of Treaty settlements and covers the general approach we took to their negotiation, including some of the early innovations that allowed us to make progress at the speed we did.

Part Two is about the essential components of settlements.

Chapter Three discusses the fundamental importance of ensuring negotiating groups are mandated by the people they represent in negotiations. It looks at the complications that arose in two negotiations: Ngāpuhi and Whakatōhea. Chapter Four covers the importance of an agreed historical account and the impact of Crown apologies. Chapter Five explains the financial aspects of redress, including the use of financial redress to purchase Crown properties and the crucial right of first refusal mechanism, used in nearly every settlement reached to date. Chapter Six looks at some interesting examples of cultural redress included in settlements, along with agreements reached to guide the future relationship between settling groups and the Crown.

Part Three concerns the major topic of natural resources redress.

Chapter Seven tracks the increased transfer of conservation land to settling groups throughout my time in office and covers a number of methods the Crown has used to transfer Crown land to iwi as cultural redress. It outlines particularly the crucial role of the Department of Conservation, both in reaching settlements and in ensuring their future durability. Chapter Eight examines co-governance agreements where iwi co-govern large natural resources with local government. Chapter Nine then tells the story of two now internationally recognised settlements reached with Ngāi Tūhoe and Whanganui Iwi, which utilised the concept of legal personality. Through this mechanism, the Tūhoe homeland, Te Urewera, was vested in itself, and the Whanganui River received status as a legal person. Chapter Ten describes New Zealand’s regime for recognising Māori customary interests in the marine and coastal area.

Part Four looks at the broader Crown–Māori relationship into which settlements fit.

Chapter Eleven considers the crucial topic of safeguarding settlements. How can we ensure the Crown keeps its promises and what remedies should there be for settled groups let down by the Crown in the future? Finally, Chapter Twelve considers settlements within the context of the Crown–Māori relationship, and asks ‘what next?’ as New Zealand heads towards its bicentennial in 2040.

A note on terminology

Throughout the following chapters, the term ‘the Crown’ should be read as shorthand for ‘the New Zealand government’. While the precise definition of the Crown has been the subject of extensive legal writing and debate, the term is most often used to signify the government as the body now responsible for the articles agreed to in the Treaty of Waitangi in the name of Queen Victoria in 1840. Although there have been numerous discussions and legal arguments about what does and does not form part of the Crown, it is generally accepted that the Crown means the Sovereign and includes all ministers of the Crown and government departments. It does not include officers of Parliament, Crown entities, state-owned enterprises or local government. While the term is occasionally extended to refer to the entire state apparatus, including the legislature and courts, that is not the use adopted here.

Te reo Māori words are used in the text alongside English and without italicisation. All te reo Māori words and terms used are defined in the glossary provided at the end of the book. Macrons have been used in the names of iwi and hapū in accordance with the preferences of the relevant group. References to deeds of settlement and legislation adhere to the spelling used in those documents, which may vary.

Part 01

The Treaty of Waitangi and Treaty Settlements

The Waitangi Sheet of the Treaty of Waitangi, signed between the British Crown and various Māori chiefs in 1840.

Chapter One

A Brief History

The landmass occupied by modern New Zealand spent almost the entirety of history uninhabited by humans. Its nearest neighbour, Australia, has been inhabited by humans for around 65,000 years. By most estimates, Māori arrived in New Zealand around 800 years ago. First contact with Europeans then occurred with the visit of Abel Tasman only 380 years ago. James Cook first sighted New Zealand 250 years ago. Historically speaking, this has all happened in a blink of the eye.

By the early nineteenth century, Europeans were visiting New Zealand on a regular basis and, in 1840, a Treaty was signed between the British Crown and Māori. This treaty, known as the Treaty of Waitangi, was a short document which said in its English version:1

HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands – Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

ARTICLE THE FIRST

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

ARTICLE THE SECOND

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

ARTICLE THE THIRD

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

W. HOBSON Lieutenant Governor.

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

Since the Treaty’s signing, there has been vigorous debate over its meaning and effect, the intentions of those who signed it and how the English version differs in meaning from the Māori version. An analysis of these arguments is beyond the scope of this book,2 but there is general consensus that the Crown acquired sovereignty – or at least the right to govern – in New Zealand in exchange for the protection of Māori interests. What is meant in practice by the concepts of sovereignty and kāwanatanga, and ‘exclusive and undisturbed possession’ and tino rangatiratanga, are questions that will continue to be argued about well into the future.

Whatever the Treaty meant to those who signed it, the impact of the document can be more easily assessed. British sovereignty was declared in New Zealand in May 1840. New Zealand was granted self-government and the first Parliament met in the 1850s. By the 1860s, the New Zealand government had assumed control over native policy, as it was then known.

Despite the guarantees the Treaty of Waitangi made to Māori, successive governments engaged in policies that led to large-scale alienation of Māori land throughout the nineteenth and twentieth centuries, ranging from unfair purchases to raupatu. Māori sought resolution of many of these injustices from very early in New Zealand’s history. Petitions and claims were brought to the government and a number of land commissions, official committees and trust boards were established in response, with usually unsatisfactory results.3

By the 1970s, some awareness had begun to grow among non-Māori New Zealanders of this disturbing history and the detrimental cultural and social effects that had flowed from it. The last quarter of the twentieth century saw a significant change in legal and political approaches to the Treaty of Waitangi. In 1975, the Waitangi Tribunal was established to make recommendations to the government on claims relating to the Treaty. In 1985, the Tribunal’s jurisdiction was extended to allow it to investigate grievances dating back to 1840. This led to the lodging of a significant number of historical claims. Meanwhile, in the now famous 1987 judgment of the Court of Appeal in New Zealand Maori Council v Attorney-General,4 the Court determined a number of principles of the Treaty of Waitangi. This was an attempt to navigate through the inconsistencies between the English and Māori texts of the Treaty and the multitude of different interpretations of the Treaty’s effect.

Queen Elizabeth II, Te Arikinui Dame Te Atairangikaahu, the Prime Minister Jim Bolger (left) and Sir Douglas Graham (right) at the ceremony where the Queen gave Royal Assent to the Waikato Raupatu Claims Settlement Bill 1995. This was the first time the Queen was filmed giving Royal Assent to legislation. Photographed by Evening Post staff photographer John Nicholson on 4 November 1995.© National Library EP/1995/4375B/33A-F

The overarching feature of these principles was the definition of the Crown–Māori relationship as a form of partnership in which both partners must act reasonably, honestly and in the utmost good faith. The Crown has obligations to protect and preserve Māori property and a duty to remedy past breaches of the Treaty. These principles and others have come to form the basis of the contemporary Treaty relationship between the Crown and Māori. Referring to the presence of the phrase ‘principles of the Treaty’ in the Treaty of Waitangi Act 1975 and State-Owned Enterprises Act 1986, Lord Woolf said in the Privy Council that:5

… the principles are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty. (Bearing in mind the period of time which has elapsed since the date of the Treaty and the very different circumstances to which it now applies, it is not surprising that the Acts do not refer to the terms of the Treaty). With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms.

Unfortunately, but perhaps unsurprisingly, the concept of Treaty principles has become something of a political football. Des pite the jurisprudence setting out the principles, there are frequent complaints that they are vague, unclear, or that nobody knows what they are. There have been two notable attempts to remove or define the principles of the Treaty through legislation. In 2005, ACT member of Parliament Rodney Hide introduced the Treaty of Waitangi (Principles) Bill, which sought to redefine the principles to statements such as ‘the principle of the first article is that there is just one New Zealand …’.6 The legislation was misconceived and failed to pass. The following year, New Zealand First member of Parliament Doug Woolerton introduced the Principles of the Treaty of Waitangi Deletion Bill, which would have removed the words ‘principles of the Treaty of Waitangi’ from legislation.7 This bill also went nowhere.

I have never understood why the concept of Treaty principles arouses such virulent opposition in some people. Just what the principles mean when applied to individual circumstances will be a matter for interpretation and, more generally, for political debate. It is possible that the courts, executive and legislature may define further principles or refine existing principles from time to time in the future. But surely that is the nature of interpreting and applying a foundational document such as the Treaty of Waitangi. Short of abolishing the Treaty itself, I am not sure what an alternative approach to Treaty principles could look like. Any literal interpretation of the English and Māori versions of the Treaty would require some form of synthesis similar to a principles-based approach anyway.

Although some politicians have never accepted the idea that the Treaty of Waitangi carries ongoing obligations with it, those who want to reverse course are seeking to re-open a debate that was largely settled over forty years ago, when New Zealand embarked on its present jurisprudential and political path. The concept of an ongoing Crown–Māori Relationship based on these principles has long since become part of New Zealand’s constitutional firmament. By and large, the approach has served us well: the decision of the Court of Appeal in 1987 has stood the test of time.

This is not to say that the principles are not capable of causing some confusion. In July 2019, New Zealand Prime Minister Jacinda Ardern referred in a speech to ‘the Treaty of Waitangi partnership between Māori and Pākehā New Zealanders’.8 This characterisation of the Treaty is probably not uncommon. The Treaty of Waitangi is not, however, an agreement between Māori and Pākehā New Zealanders: it is an agreement between Māori and the Crown. To view the Treaty as an agreement between Māori and Pākehā undermines the guarantees made to Māori in the Treaty and expanded on by the principles. Responsibility for those guarantees sits with the Crown and the governments that represent it.

At the same time that the Court of Appeal first outlined the Treaty principles, numerous inquiries were underway in the Waitangi Tribunal under its new historical claims jurisdiction and the first reports soon began to emerge. Many of these reports recommended the Crown take action to remedy its past failures; they called for something altogether more substantial than the ad hoc attempts by the Crown to address grievances in the past. Addressing the issues outlined in the reports was going to require a sustained national effort.

In 1990, the Fourth National Government, led by Jim Bolger, came to power and was confronted by the question of how to respond to the increasing number of reports.9 Bolger realised that a failure to act on the reports would mean more grievance and that a process of resolving the grievances would have to be started. In 1991, Bolger appointed his Minister of Justice, Douglas Graham,10 as Minister in Charge of Treaty Negotiations. This was an inspired appointment,11 and Graham and his officials set to work on designing a general policy and process for the settlement of Treaty grievances.12 Throughout the 1990s, Bolger and Graham made a formidable team. By the time Graham left office in 1999, he had overseen a pan-Māori fisheries settlement in 1992 and concluded two of the largest settlements with iwi: the 1995 Waikato-Tainui Raupatu settlement and 1997 Ngāi Tahu settlement.

The Waikato-Tainui and Ngāi Tahu settlements were formed of three types of redress, which would come to feature in all future Treaty settlements:

Historical Account and Apology

Every settlement contains an historical account and Crown acknowledgement of the grievances, and an apology. These set out the facts about what went wrong and provide the basis for establishing a positive future relationship between the Crown and the iwi.

Financial Redress

This includes both the payment of cash and transfer of commercial assets. Full restitution is impossible, but the aim is to put iwi in the position where they can build a good economic base for themselves, independent of the Crown. A quarter-century after the Waikato-Tainui and Ngāi Tahu settlements, it is clear that both iwi have achieved this.

Cultural Redress

Cultural redress seeks to recognise a wide range of Māori interests relating to natural resources, traditional associations with the environment and sites of interest. Some of the more innovative approaches the Crown and iwi have taken to settlements are in the area of cultural redress.

It is important to note that, although Crown-owned land is often transferred to iwi as financial and cultural redress, private land has never featured as redress in settlements. The compulsory acquisition of private land for use in Treaty settlements would have created a new set of grievances among property owners and would have been unacceptable to the general public. This decision was made very early on and remains the case today.13

In order to get settlements started, the Bolger government set aside $1 billion in 1992 dollars for the settlement of all historical claims. This figure became known as the fiscal envelope. Within government, the decision was hotly contested between officials and ministers. The figure represented a political judgment about the financial resources that could be devoted to settlements. It recognised that settlements could never provide full compensation for past losses (the country could never afford such a sum) along with the political risks the government was taking in beginning settlements. There was a need for an upper limit in order to bring the general public along with the project as far as possible. Understandably, there was anger from Māori about the decision. For a time, there were concerns that the first Treaty settlements could be derailed before they even started. Due to the courage of the Māori leaders who decided to get on with negotiations anyway, they were not.14 The fiscal envelope was later abandoned after the Waikato-Tainui and Ngāi Tahu settlements had provided a benchmark for future settlements. Provided relativity with those settlements was maintained, the need for a cap was no longer essential.

Prime Minister Jim Bolger and Ngāi Tahu leader Sir Tipene O’Regan hongi after signing the Ngāi Tahu Deed of Settlement at Takahanga Marae in Kaikoura. Treaty Settlements Minister Sir Douglas Graham is signing at left.© Stuff/Fairfax Media 62264786

The Waikato-Tainui Raupatu settlement was the first major settlement of the grievances of an individual iwi, and was concluded in respect of land confiscated during the Land Wars.15 Under the leadership of Sir Robert Mahuta, Waikato-Tainui wanted an assurance that their settlement quantum would be preserved if the fiscal envelope were eventually exceeded.

At the time of the Waikato-Tainui negotiations, it was thought that there would probably be about thirty or forty settlement negotiations, with the Waikato-Tainui and Ngāi Tahu settlements being two of the largest. As negotiations with Waikato-Tainui neared an agreement, the issue confronting Sir Robert Mahuta and Sir Douglas Graham was not only whether 17 percent of the fiscal envelope was a fair settlement, but how that percentage figure could be preserved if the total quantum of settlements eventually exceeded the fiscal envelope.

To preserve the relativity of the Waikato-Tainui settlement, the government agreed to the inclusion of a relativity clause preserving the settlement at 17 percent of the eventual total of settlements. A relativity clause was also included in the settlement with South Island iwi Ngāi Tahu. Ngāi Tahu wanted broad equality with the Waikato-Tainui settlement, albeit for different historical reasons. Ngāi Tahu had not suffered raupatu but had suffered from unfair land purchases on a massive scale.16 The relativity mechanisms have not been replicated in other settlements.

As a lawyer in the mid-1990s, the Ngāi Tahu negotiations were my first foray into the Treaty settlements area and I ended up working for the iwi throughout their negotiations with the Crown in the late 1990s.17 Ngāi Tahu took a litigious approach to its settlement negotiations. Whenever things were going too slowly or were off-track, the iwi would sue the Waitangi Tribunal or the Crown. This was interesting work for me at the time, although, sitting on the other side of the negotiating table as Minister in later years, I always hoped the approach would not be replicated. Nonetheless, in the early days of Treaty settlements, it was necessary to push things along. The Ngāi Tahu negotiations required political steel from ministers in the Fourth National Government. Some years later, Jim Bolger told me he had been warned by a senior South Island National Party official in 1996 that National would lose every seat it held in the South Island if the government were to sign an agreement with Ngāi Tahu. While history shows that the National Party did not lose any seats, the same kind of warning would be given to me by a number of people from time to time in the years to come. It invariably turned out to be wrong. On 21 November 1997 in Kaikōura, Ngāi Tahu and the Crown signed a deed of settlement to resolve 148 years of discord.

Now that the relativity mechanisms have been triggered and initial payments made to Waikato-Tainui and Ngāi Tahu, some have questioned why they exist. The short answer is that the mechanisms were necessary to get two big negotiations concluded to start Treaty settlements. By the early 2000s, it was clear that the earlier estimate of thirty to forty negotiations was a gross underestimation. Almost every iwi or hapū suffered land loss from unfair land purchases, raupatu or felt the impact of unjust Native Land Court decisions. This meant the $1 billion figure would have to be exceeded if settlements were to remain just. When the $1 billon figure was exceeded during my time as Minister, I considered the issue a plain matter of contract: the Crown committed to the relativity clauses, so the Crown had to fulfil its obligations and pay the difference. Although some of my colleagues were nervous about the size of the initial payments made under the relativity mechanisms, the payments have so far gained little public comment. Nor has the fact that, twenty-five years after the fiscal envelope decision, it is now likely that total settlement redress will be close to $3 billion.

With my parliamentary colleagues, Dame Tariana Turia, Dame Georgina Te Heuheu (foreground), Jonathan Young and Maryan Street (background), signing terms of negotiation with Te Ātiawa.© Crown/Te Arawhiti – Crown Copyright

Chapter Two

Minister for Treaty Negotiations

In the nine years after Sir Douglas Graham left office, the rate of settlements slowed significantly under Helen Clark’s Labour-led government.1 But in the year preceding my appointment as Minister for Treaty Negotiations on 19 November 2008, the appointment of the Deputy Prime Minister as Minister for Treaty Negotiations saw the government start to make progress at a breathless pace. Both the initial eight years of sluggishness and the final year of enthusiastic activity would have implications for my plans for the portfolio.

The Fifth Labour Government and Treaty settlements

By 1999, significant momentum had built up in Treaty settlements. As the new millennium dawned, Waikato-Tainui and Ngāi Tahu had settled and were beginning to build their wealth. A number of negotiations had commenced with smaller iwi; many other iwi were lining up to negotiate the settlement of their grievances. To this day I am surprised that, instead of building on this momentum, the new Labour government allowed it to dissipate.

Labour defeated National easily in the 1999 election and Helen Clark made newly elected member of Parliament and former Labour Party President Margaret Wilson Minister for Treaty Negotiations.2 Wilson was also appointed Attorney-General,3 and Minister of Labour. The latter role would be her primary focus as a minister. Employment relations reform was one of the new government’s main priorities. Its intricacies commanded most of Wilson’s attention; at one point she even referred to the ‘synergy’ between the principles of employment law and Treaty settlements.4 In July 2000, after a nine-month ‘appraisal of the criteria and processes for the settlement of historical claims’, Wilson announced six ‘new principles’ to guide the settlement of historical Treaty claims.5 These new principles were largely statements of the obvious: good faith, restoration of relationship, just redress, fairness between claims, transparency and government-negotiated.6 The cost of spending her first, crucial, months in office on this exercise would prove a heavy one.

In February 2005, Margaret Wilson became Speaker of the House and was succeeded by Mark Burton,7 who was Minister for Treaty Negotiations when I entered Parliament at the end of that year. In the eight years Wilson and Burton held office, several small settlements were completed with North Island iwi and negotiations begun by Sir Douglas Graham were completed with Ngāti Ruanui and Ngāti Awa. Wilson also began and completed negotiations with Ngā Rauru Kītahi and negotiated the 2004 Te Arawa Lakes Settlement, which transferred thirteen Rotorua lakebeds to local iwi.8 Wilson eventually signed seven deeds of settlement with financial redress amounting to around $160 million. Mark Burton signed two, both negotiated by Wilson. In 2007, Burton responded to criticism that progress had been slow with the statement that ‘this Government has negotiated two large settlements from start to finish’.9 The fact this was offered as evidence of success was perhaps illustrative of a broader problem.

Public comments from Wilson and Burton became increasingly defensive as time went on. Minor events were lauded as progress. Press statements were issued announcing individual meetings with iwi. But claims from Wilson and Burton that there was more progress than ever matched neither the reality nor the increasing feeling among Māori that settlements were not a priority for the government. In 2006, a Treaty of Waitangi Amendment Act set 1 September 2008 as the closing date for the lodging of historical Treaty of Waitangi claims with the Waitangi Tribunal. Labour had promised to pass the legislation in its 2005 election policy. National supported the legislation. Public support for settlements relies on there being an end-point and, by then, over 20 years had elapsed since the Waitangi Tribunal’s jurisdiction was expanded back to 1840. Nonetheless, the lack of progress in settling claims made the deadline seem unreasonable to many Māori. If the government was not in a rush to settle claims, why should Māori be in a rush to lodge them?

Looking back, I think there are several reasons why progress was so slow during this period. The initial focus on reviewing the settlement process certainly killed any momentum. It is also true that Treaty settlements were some way down the government’s priorities list. The focus of Helen Clark’s first two terms in office was on various social policies. There may have also been suspicion of what was seen by some in Labour as a National Party project. Whatever the reasons, the overarching problem was that the level of ambition was never high enough and the level of political priority too low. The result was that progress slowed almost to a halt.

In late 2007, the situation suddenly changed. With a General Election approaching and the lack of settlements reached now conspicuous, Helen Clark appointed her Deputy Prime Minister and Minister of Finance, Michael Cullen,10 to the Treaty Settlements portfolio. The following year was something of a whirlwind. Cullen hit the ground running, keen to make up for lost time. In little more than a year, he signed a $45 million deed of settlement with Wellington’s Taranaki Whānui, a $161 million settlement with the Central North Island Forests Iwi Collective, and progressed negotiations over the Waikato River and with iwi in the northern South Island.

With Sir Michael Cullen, my excellent predecessor and subsequently negotiator for Tūwharetoa, and Tūwharetoa’s George Asher and Sir Tumu Te Heuheu.© Crown/Te Arawhiti – Crown Copyright