Abolishing the Waitangi Tribunal, conclusion

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By Amy Brooke, cont’d

This Ngai Tahu 1998 settlement is an important one to focus on, as is it particularly relevant in scrutinising the workings of the Waitangi Tribunal. Researcher Denis Hampton also noted at the time in a letter to the Christchurch Press of September 9, 1997, that then Ngai Tahu chairman Charlie Crofts claimed that the previous 1994 settlement of the Ngai Tahu claim “was imposed on the tribe by an all-powerful Crown” and that those reading the Waitangi Tribunal report could well agree with him. The tribunal, on the evidence presented to it, then concluded that the majority of the tribe had given only retrospective approval to the settlement.

Even bypassing the fact that this was disputed by the former MP for Southern Maori, Mrs Whetu Tirikatane-Sullivan, whose own father Eruera Tirikatane had taken the 1994 proposal around all the iwi and received its unanimous endorsement, another factor contradicts Mr. Crofts’ claim, as Hampton illustrates.. “In 1969, aware that the annual payments from the 1944 settlement would soon cease, Frank David Winter, Chairman of the Ngai Tahu Maori Trust Board, together with over 2000 other members of the tribe, petitioned Parliament for the payments to continue in perpetuity. The petition included a clause stating that “the 1944 settlement was not and never has been accepted by the Ngai Tahu tribe as affecting a full and final settlement of the claim.”

“In 1971 the petition was considered by the Maori Affairs Committee. “Evidence brought before the committee showed that the 1944 settlement had been well and truly discussed before it was enacted. It was pointed out that from May 1943 until the passing of the act, numerous meetings were held in both the North and South Islands. The words ‘was not and never has been accepted’ were not considered by the committee to be correct” and it therefore did not rule in Ngai Tahu’s favour.

A year later, Ngai Tahu tried again, and the petition was reconsidered. The committee was apparently “impressed by the petitioners’ dignity and obvious sense of belief in the justice of their case.” But they failed to produce any fresh material evidence and again the petition failed.

Although the Waitangi Tribunal accepted Crofts’ assertion, it is impossible to avoid the fact (as Hampton pointed out in an article “ A settlement imposed?”) that Charlie Crofts’ belief that the 1944 settlement was imposed on the tribe was simply wrong. Hampton also noted that “Mr. Anthony Hearn QC , in his submissions on behalf of the Crown to the Waitangi Tribunal, was well aware that the petition had been considered by the select committee both in 1971, and in 1972. “For some inexplicable reason, he did not elaborate on the findings and failed to submit them as part of his supporting documentary evidence. “ However a Ngai Tahu website continues to claim that in relation to The Ngai Tahu Claim Settlement Act 1944, providing for annual payments of £10,000 for 30 years to the Ngaitahu Trust Board, a not inconsiderable sum for those times, “The tribe was not consulted on this until the legislation was passed.”

Where does the responsibility lie for such misleading, provably inaccurate claims?

The government is not bound by the recommendations of the Waitangi Tribunal, except in relation to The Treaty of Waitangi (State Enterprises) Act 1988, but its influence on government decisions has been considerable. The question now has to be whether or not its methods of operation and its composition best serve the interests of the country – or whether the claims on which it bases its decisions should be more appropriately heard in a proper court of law, operating on a far more objective basis, and removed from the arguably inappropriate setting of a marae, with all its pressures and particular beliefs, by no means always consistent with the actual facts of our co-history. Although its findings are not automatically enforceable, the lack of opportunity to scrutinise these concerns leaves New Zealanders disenfranchised from any participation in its proceedings. Its lack of judiciousness, exemplified by its exaggerated Parihaka pronouncements, let alone its apparent judicial activism on behalf of Maori factions only, has led to what its critics forewarned in 1988.

Already, New Zealanders at large are being stripped by the tribunal’s decisions of assets of enormous value, such as mineral rights, rights to forestry, power stations and conservation estates in which Maori already have as equal a share as all other New Zealanders – more at this stage, given that the government has granted the sole use of certain conservation land – what should be Crown Land available to all New Zealanders – to the same powerful and manipulative Ngai Tahu body as compensation (apparently compensation to Ngai Tahu is a movable feast) for the lessening of the value of their third “full and final” settlement by the government’s introduction of its Emissions Trading Scheme. Moreover, the National Government is poised to go even further down the disastrous path of racial advantage by handing over areas of the foreshore and seabed to local groups of Maori claiming “customary rights” – a newly invented form of property rights historically untenable, but giving local family or tribal groupings extraordinary advantages over all other New Zealanders in relation to stretches of our coastline, to mineral access and power of veto – even sole rights – over developments. Naturally, all these unprecedented and undemocratic initiatives have the full backing of the Waitangi Tribunal.

However, this perceivedly radical tribunal has brought itself into disrepute into other areas. Its Taranaki Claim Report contained intemperate language and greatly exaggerated assertions. Land confiscations of the times it referred to should be seen in the context of the same Taranaki tribes’ invasion of the Chatham Islands, and the pillaging, enslavement, torture, and ultimately genocide of their peaceable Moriori victims. Such a comparison places in better proportion the skirmishes and land confiscations of the Central North Island, unjust although in hindsight some of the latter might have been. Today’s attempt to revisit history from the signing of the Treaty of Waitangi onwards in examining the facts relevant to the Taranaki and Waikato tribes’ infighting (one only of all those undertaken by the Labour government, on the initiative of the then Minister of Justice, Geoffrey Palmer) was not only an impossible but an incredibly naive one, given that reportedly even more Maori tribes fought on the side of the Crown.

Given the tangled territorial claims and counter-claims, it is highly likely that the truth of such issues can never be clearly defined. Moreover, it is also arguable that given the passing of over a century and a half, the principle of permanent land alienation, as realistically applied in Europe, should have been applied here – and the country as a whole should have moved on.

Furthermore, given that there was never any reparation or any apology from the Taranaki tribes to the descendants of the Chatham Islanders, the Waitangi Tribunal’s emotive and one-sided description of the Taranaki confiscations as “the Holocaust of Maori history”, was quite outrageous. Shameful although the Parihaka incident might have been, even if understandable in the context of the times with the butchering of settlers – men, women, and children – having its inevitable consequences, it was inexcusable, if not an act of hysteria, for the tribunal to rank it “with the most heinous action of any government, in any country, in the last century”.

For example, as historian Martin Doutre recounts, during the summer and autumn of 1863 it was an almost a daily occurrence that outlying settlers’ homes were invaded and looted and occupants subjected to violence and intimidation. “These incidents were far to the north of the Mangatawhiri Stream, which constituted the northern boundary of the Kingite territory”. In June 1863 …”the situation had become so intolerable and dangerous for the settlers that the government, in exasperation, required that the Maori living to the immediate north of the Mangatawhiri stream, in the region of growing hostility, plundering and constant unrest,” must swear an oath of allegiance to the Queen or move to the south of the stream…those who moved to the South were allowed to take their arms with them…”Murder of the outlying settlers began in earnest after June 1863”. Moreover, not one death occurred at Parihaka – apparently the only casualty in this peaceful confrontation was, regrettably, a horse standing on a boy’s foot.

These are not the facts which the tribunal preferred to make public. Although it was now obvious from the time of its extraordinary “Holocaust” accusation that the tribunal had become well and truly discredited, its inexcusably distorted assessments were disseminated worldwide by courtesy of the Internet – and regarded as blot on New Zealanders’ cohabitation. No wonder we have misinformed United Nations personnel descending to inspect what must appear to be our horrific and discriminatory practices!

Further controversy has long surrounded the tribunal’s power to virtually compel the return of state assets, tied in with what has been regarded as essentially opportunism – not only its absurd recommendation that ownership of the electromagnetic spectrum and the airways also belong specifically to tribal Maori, but its assertion that there was at the time of European settlement no Maori concept of land as a saleable commodity, the land under question regarded as being merely leased to the Crown. There is plenty of evidence that tribal negotiators well understood the onus of a transaction being located squarely between consenting adults.

The tribunal managed in the 90s to advance yet another inventive claim: “The central issue of later Crown purchase is, therefore, not so much the intention of Maori in transacting, but more importantly, the integrity of the Crown in buying.” However, attempting to second-guess the intentions of the Crown with regard to a contract – while retrospectively infantilizing the Maori perception of bargaining – does little justice to the rules Maori had continually brought to bear in these processes, let alone the considerable intelligence and acumen shown by some of the chiefs at the time.

The lack of opportunity to properly scrutinise the tribunal’s modus operandi concerns New Zealanders disenfranchised from any participation in its proceedings. Its apparent activism on behalf of Maori factions only, has led to what its critics forewarned in 1988.

Furthermore, the New Zealand Herald of November 17, 1999 published an article in which Justice Durie, the chairman of the Waitangi Tribunal, stated that “Some Treaty of Waitangi claimants have asked researchers to change findings that would be unhelpful to their cases” and that “some tribes had even tried to make the payment of research conditional on findings being altered.” He stated that this issue, as well as several others, raised questions about the need for a code of ethics for researchers’ claims lodged under the treaty. He quoted some groups requiring “commissioned researchers to remove material unhelpful to the claimant cases” – which meant that their conclusions were suspect. There were also complaints from researchers of instructions not to consult with certain persons, or only those approved by the claimants’ groups. Durie was alluding to that same travesty of justice which so concerned Brian Priestley in relation to the Ngai Tahu claim… the highly self-serving view by some claimants “that kaumatua opinions and recollections should not be challenged or cross-examined” – and queried whether their evidence presented to the tribunal should be publicly available.

Claims of conflict of interest are consistently raised when it is pointed out that some tribunal members appear to be wearing two hats. An expectation of impartiality and balance should be fulfilled in any semi-judicial hearing making recommendations to government involving multi-million-dollar handouts to tribes. However, known radical activists, advocating strongly for their own tribes, are periodically members of the tribunal.

The research of the one New Zealand Foundation’s Ross Baker has uncovered a Department of Lands and Survey file, as far back as November 1985, pointing out that during the District Maori Land Advisory Committee Tour of Northland “a Mr Ned Nathan seems to be the leading local person pursuing this claim and he also sits on the Waitangi Tribunal in place of Sir Graham Latimer when he has an interest in the land under consideration” (italics mine). In other words, Ned Nathan, the main Te Roroa claimant and a plucky World War II veteran who’d managed to resist Gestapo torture, was also a member of the Waitangi Tribunal hearing the Te Roroa claim – a clear conflict of interest in my view that would not be permitted in any other New Zealand court.

It is not the first time that claimants have been judge and jury – or that members of the tribunal sitting to consider claims have had a relationship with the tribe whose claims they were hearing. The District Field Officer at the time, Mr. L.G Fraser, stated that although the claim received verbal support “naturally” from the majority of the Committee, “the Department of Lands and Survey has already investigated this claim and was of the opinion that it could not be sustained.” He went on to point out that “the information presented to the Committee with the documentation presented to them was very lightweight and they would be on very shaky ground making a recommendation decision on that information.”

This reminder is particularly relevant in connection with the Te Roroa claim, as the present Minister for Treaty Negotiations, Chris Finlayson, has been responsible for authorising payment of $9.5 million of taxpayer funds in connection with this claim. In reply to a March 2010 query by Ross Baker to the Minister of Finance on behalf of the One New Zealand Foundation asking if taxpayer funding has now been provided to compensate Te Roroa for their “alleged” but unproven claim and if so why, a partial answer only was received from the Minister of Treaty Negotiations, to whom the query was forwarded. Finlayson confirmed that the Te Roroa Deed of Settlement, originally signed on December 17, 2005 had now provided land and financial redress to the value of $9.5 million as part of the settlement package.”

However, to an impartial observer, all would not seem to be well. Not only had chief Judge Shepherd found there was no evidence to support this claim in 1939, and it was further rejected by parliament in 1942, but the select committee of which the now Minister of Treaty Negotiations was then a member, contained members who, through intermarriage and genetic inheritance, have tribal affiliations. How have we arrived at a situation where a less than impartial committee may report back to Parliament? It might well trouble the impartial observer that of its eight part-Maori members some were related to Te Roroa , and Georgina Te Heuheu was a member of the Waitangi Tribunal that actually heard the Te Roroa Claim. Pita Sharples, the present co-leader of the radicalised Maori Party, was also one of its members. This matter was apparently brought to the attention of the Speaker of the House at the time, but nothing was done. Its National Party member Tau Henare subsequently claimed to Parliament that the One New Zealand Foundation submission had not been heard – when, in fact, the committee had indeed heard it.

That these submission contained documents and evidence (as did the Federated Farmers submission with its 17,000 membership backing – about which Parliament was also never informed) showing the Te Roroa claim was only an alleged, and never a proven claim, seems to have been the reason why Parliament was not informed of these. In other words it can well be argued that far from this committee being impartial, its members were stacked, and their findings were far from objective. Most of this committee’s members were also List MPs. i.e. Members of Parliament not elected by the public but appointed by the parties for their loyalty. And yet Parliament acted on its recommendations.

Clearly this is not good enough. Although Hansard dutifully records what it was told, that the Maori Affairs Select Committee did not hear the one New Zealand Foundation’s submission, the evidence is there that it was actually heard at Parliament on May 2, 2007 . It was presented by historian Ross Baker at the select committee hearing and he apparently answered questions from Finlayson at the time. There were eight opposing submissions to this bill.

Back in 1992, the then Minister of Justice Doug Graham pointed out that “the government is accountable to the public to respond to the expenditure of taxpayer funds and must stand up to public scrutiny.” Who would disagree? Yet what recourse does the public have when this requirement is being withheld?

Disturbingly, as parliamentarians, their hands full with their own portfolios, do not have time to read up on these issues and must largely rely upon a select committee’s recommendations, the question arise whether this select committee misled Parliament through a highly disturbing act of omission. It is at least a travesty of justice that it did not inform Parliament that the Te Roroa claim was unproven – that it was simply alleged – and that in its report to Parliament it withheld vital information concerning this fact.

Bearing in mind that the select committee’s duty is to read all submissions and hear those that request to be heard, there is a further responsibility to prepare an unbiased report to be presented to Parliament for MPs to decide whether to vote for or against the Bill. In most cases, this is the only understanding parliamentarians have of a Bill before they vote on information given in the select committee report. So it is by no means an unimportant issue that no mention was made at any time that this claim was only an “alleged” claim, although this was stated in most of the opposing submissions, with documented evidence.

The question is inevitable: why did this claim proceed when the Waitangi Tribunal, the Crown and the claimant apparently did not have one new piece of evidence to substantiate it, and when it had been well and truly rejected in the past for this reason? There are grounds to argue that the Bill/claim would never have been allowed to proceed if parliament and the public had been informed of the detailed submissions opposing it.

Again we have a situation almost paralleling that of the signing of the Ngai Tahu Claims Settlement Act in 1998, where, as has been documented, the select committee was instructed to virtually disregard the very many submissions made to it on the grounds that the Bill had already been signed.

Similarly, the recent Tuhoe settlement is yet another instance of taxpayers once again being compelled to make very dubious “compensation” – this time to the tribes of the Central North Island – when there is well-documented evidence, recorded at the time, to show that the Tuhoe were paid at a very good rate and were well satisfied with the compensation they received for marginal land subsequently planted in forestry by the State – land for which they themselves have managed to receive a further recent large payout. Claims were made by Tuhoe which, arguably, on the evidence of the times, were simply untrue. However, at the convenience of government, such important facts are ritually ignored. For example, apparently Tuhoe did not have 24,147 ha of land confiscated. The true figure supplied by the One New Zealand foundation was 5700ha, and, contrary to Tuhoe’s always highly emotive representation, this land was not confiscated without good reason. An article by Stephen Oliver published in the Dictionary of New Zealand Biography leaves little doubt that the government of the day had every right to confiscate land from Tuhoe.

Moreover, it has also been stated that Tuhoe was not subsequently compensated for this land. But in Richard Hill’s, Justice Department record for the Lange government in 1989, page 11, clause 31, Tuhoe were as shown to have received $200,000.

The Maori economy, undoubtedly in large part due to ongoing taxpayer contributions as compelled by various governments, is reported to now amount to nearly $18 billion. Taxpayers’ money invested in promoting the largely now modernised Maori language alone reportedly amounted to $260 million dollars this past year. Settlements of accumulatively to hundreds of millions of dollars are still under way, although total tribal wealth is now considerable – and the country is faced with making drastic cuts to our military and defence capability from financial necessity.

Meanwhile, tribal groupings still constantly approach government for financial help for developments and initiatives they could well afford to finance themselves. Moreover, little accountability has been sought for money given for various Maori-only initiatives in business, enterprises, health and education which appeared to have been siphoned off to tribal relatives and misapplied – taxpayer money still unaccounted for to date.

Those New Zealanders, both part-Maori and non-Maori who see the ongoing haemorrhaging of taxation towards Maori tribal claims (some of the largest regarded by independent historians as reinvented, elasticised or simply spurious) as a massive drain on our economy have a point. Many would now agree with Martin Doutre’s claim that “much of what is cited as history is little more than grievance-industry, politically driven, expedient fantasy, which has little or no basis in fact and can’t be corroborated by the observations of those who were there on the ground at the time. The same gaggle of social engineers who stole our egalitarian Treaty of Waitangi from all the people of New Zealand and turned it into a document of apartheid are responsible for fabricating this nouveau version of colonial history.”

Other troubling practices have been cited with relevance to the operations of the Treaty of Waitangi, including that some of the Crown historians have previously worked with the Maori claimant groups.

Although the tribunal seems to have been originally conceived as a sop to Cerberus – a gesture of appeasement towards radical activists – history shows us that individuals’ or groups’ distorted ideological perceptions are never removed by appeasement. As we have ourselves seen in recent years, radical activists, obsessed by their one-sided perception of issues, lack a sanity of vision which acknowledges the immense advantages to themselves and their people – as well as the inevitable disadvantages – of the shared occupancy of this country. Arguably the former have been far more valuable.

Given the expectation, in our democracy, that it should be the courts with their access to the right of appeal that decide on the legitimacy of claims – without prejudice to race, gender, class or creed – those arguing for the disestablishing of the Waitangi Tribunal have a very strong case.

Those arguing for far more rigorous scrutiny of its advice that the government acts on, given awareness of its method of operating and of Brian Priestly’s assessment that “it would be hard to imagine any public body less well organised to get at the truth of an issue” have an unanswerable one. Moreover, Geoffrey Palmer’s recognition that “the balance of power has tilted against the government of the day towards the courts and the tribunal” is hardly an issue for a democracy to celebrate. Currently, moves to entrench the Treaty of Waitangi in a New Zealand Bill of Rights “to tidy up the constitutional position further” by giving even more status to the ever-nebulous “principles” of the treaty will alarm majority New Zealanders already concerned at the embedding of what have amounted to racist politics geared towards Maori preference issues.

In 1989, the discovery of the Littlewood Treaty, now regarded as Hobson’s final draft, showed unequivocally that the treaty referred to all the people of New Zealand, equal in law under the British crown. We have moved a long way from this prior acceptance of equality to an increasingly apartheid-like system which has the parents of part-Maori children being encouraged towards a separatist, total immersion education which arguably puts them at a considerable disadvantage compared to other New Zealanders, in terms of the sophisticated demands of what is required of students worldwide, at an international level. However, these children become very useful to a tribal grouping recruiting activist members.

Moreover, it is curious that an Australian Broadcasting Commission Four Corners current affairs TV programme in 1990 was, as the One New Zealand Foundation reminds us, banned from showing in New Zealand. Reportedly, according to the New Zealand Herald, the Rev. Sir Paul Reeves then Governor- General of New Zealand, but known for his radicalised views on Maori issues, clashed with Geoffrey Palmer, representing the New Zealand government. In an extraordinary admission Palmer reportedly stated on this programme that “the meaning of the treaty in terms of operational consequences is now far from clear. In fact, it is a document that is so vague that that is the problem. The idea that somehow hundreds of millions of dollars are going to change hands in such a short period of time is I’m afraid, idle.” Palmer added that such expectations were unreasonable and would not be met.

History, however, has proved that these unreasonable expectations have been and are being well and truly met – and it can be argued that it is this former minister’s original activism that has contributed to the state of affairs. Reeves himself compared the treaty to the covenant made between God and Abraham or God and Noah, with an expectation that the treaty referred to the Crown (God) and Maori (Abraham or Noah) i.e. in the nature of a partnership. However, Prime Minister David Lange at the time made his perceptions quite plain: e.g. “Did Queen Victoria for a moment think of forming a partnership with a number of thumbprints and 500 people?”

The resurfacing of the Littlewood Treaty, publicised by Ross Baker, Martin Doutre and Ian Wishart (Investigate magazine, December 2003), and referenced by scholar Paul Moon (The Treaty and its Times, Moon and Biggs, Resource Books, 2004) has cast considerable doubt on the validity of supposedly accurate translations of the Treaty of Waitangi, translations conveniently used as the basis for radicalised Maori activism. The ensuing public backlash is still with us, as is what many regard as the ongoing gravy train of treaty settlements. Moreover, many moderate Maori have left New Zealand with their families to escape this, and to escape the pressure of activist tribal involvement.

Underpinning all this disquiet has been the Waitangi Tribunal. Public perception now is that not only is the tribunal biased in the way it operates, but the fact that that some of its members come from radicalised backgrounds and have close links to tribes whose claims the tribunal hears cannot possibly contribute to impartial hearings. Moreover, it has been wrongly allowed to operate as if it is a genuine judicial authority – when it is nothing of the sort.

Both these realities bring into question its very existence, as well as the fact that majority New Zealanders – including very many part-Maori who are not organised into activist neo-tribal groupings – are disadvantaged by the tribunal’s links to tribal and government representatives – given the now compromised Maori vote-buying governments of the day.

It is hard indeed to avoid the conclusion that the abolishing of this highly divisive body with its arguably damaging recommendations is well overdue.

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©Copyright: Amy Brooke