Full and Final?

May 30, 2011

It seems that Te Tiriti settlements are never far from the political radar and the big story out today is the Government’s rejection of the draft deed of settlement prepared by Ngati Kahu because it did not provide for a full and final settlement.  I cannot criticise the position taken by Ngati Kahu – they are well within their rights to build a relationship with the Government on their own terms.  If that means leaving open the wounds of historical grievances then so be it.  What I am interested in that flows from this is what does this mean in terms of the contemporary Te Tiriti settlement process?  Is it working?  And what purpose are we actually trying to achieve through this process?

The Purpose of The Te Tiriti Settlement Process

It is that third question that I think has been poorly defined to date, even after two decades of reconciliation.  To my mind, Te Tiriti settlements serve three purposes:

  • Acknowledging, and apologising, for the historical breaches of Te Tiriti by the Government;
  • Compensating, if only partially, iwi and hapu, for the loss of economic progress as a result of past Governments breaching Te Tiriti; and
  • Building a strong and enduring relationship between the iwi or hapu and the Government, in the spirit of Te Tiriti, to ensure that Te Tiriti is honoured into the future.

So if you accept those three principles as the starting point of Te Tiriti settlements then it follows that settlements entered in by iwi or hapu and the Government should be full and final settlements up until this point in time.  This process of reconciliation cannot be fully completed when issues of past grievances have not been fully dealt with.  Further, when past grievances are left unresolved, they muddy the waters of any contemporary issue.  Instead of addressing the issue at hand, both parties are locked into a constant re-litigation of past events.

Is The Settlement Process Working?

As I wrote a few weeks back, I believe that the dual Waitangi Tribunal and Te Tiriti Settlement negotiations is a good approach to be taking to resolve our very real historical grievances.  The system is far from ideal and one of the biggest criticisms I have of the approach of successive Governments is their policy of only negotiating with large natural groupings and effectively deciding who they engage with.  As was seen over on the East Coast last year, once the Government decides that it is negotiating with the iwi who hold mana whenua, they stubbornly refuse to recognise that other, smaller, hapu exist independently of the larger collective.  It is a situation that has been repeated time and time again – the most prominent being Ngati Whatua’s flawed claim over the entire Auckland isthmus.  Fortunately, in the case, the Waitangi Tribunal intervened and ensured that smaller hapu could take their claims to the Crown.

However, the current Waitangi Tribunal does appear to be shirking its duties at times.  And it is not me saying this, it is the Supreme Court.  In its recent decision of Haronga v Waitangi Tribunal, the Supreme Court held that the Waitangi Tribunal had failed to discharge its statutory functions correctly in hearing the claims of the Mangatu Incorporation to the Mangatu State Forest.  The Waitangi Tribunal is tasked with inquiring into Maori claims of historical breaches of Te Tiriti o Waitangi and great care needs to be taken by the Tribunal to ensure that it provides claimants with the opportunity to have their case heard.

The Impact of Ngati Kahu on the Settlement Process

Ultimately, the actions of Ngati Kahu will not change the current system to any large degree.  What it will do though, is lead to a greater discussion and analysis of the purpose of the entire system and that can only be a positive thing.  The more we, as a nation, understand why we are entering into settlements with iwi, the better chance we have of healing the wounds of the past.


Well Served By Our Leaders

May 27, 2011

I have been watching with interest the debate coming out of New Plymouth this past week over the establishment of Maori Wards.  Unsurprisingly, the local Council decided against establishing the seats, instead resolving to put the issue to the electorate at the 2013 local body elections.  This move is good for democracy in the region, but has had some very negative consequences on the relationship between the Council and local Maori.

What has disappointed me has been the reaction to this decision by prominent members of Te Atiawa, including TAIA Chair Wikitoria Keenan who came out and said that New Plymouth was a “redneck town” and the attitude of the Council was not supportive of Maori.  This kind of rhetoric has the potential to derail a generation of hard work by Te Atiawa leadership to build strong links with the local Council.  It has the further consequence of alienating the general population of New Plymouth, many of whom have close communal ties with Maori throughout the region.  I lived in Taranaki for 20 years and I frequently return to New Plymouth to visit family and there is simply no evidence of New Plymouth being ‘redneck’.  Colour and race means nothing in a province where farming and sport dominates the psyche.

Ultimately, the establishment of Maori wards on the NPDC is likely to fail. It will fail not because New Plymouth is redneck and therefore does not support Maori rights, but rather because the past decade has seen a massive reduction in the local wards in favour of more ‘at-large’ seats.  Rural Taranaki will not support the establishment of Maori wards only a decade after the removal of several local wards.


Bills Before Select Committee: Monday, 23 May 2011

May 23, 2011

While the Budget may have dominated discussion last week, there were several important developments in the Maori legal field.  Three Te Tiriti settlement bills have been referred to the Maori Affairs Select Committee for consideration and public feedback, and the Supreme Court handed down a potentially game-changing decision in relation to the hearing of Te Tiriti claims by the Waitangi Tribunal.  I will discuss the Supreme Court decision of Haronga later in the week. Today, my focus is on the three Te Tiriti settlement bills.

As I foreshadowed last week, the following three bills have had their first reading in the House and have all been referred to the Maori Affairs Select Committee for consideration:

  • Nga Wai o Maniapoto (Waipa River) Bill
  • Ngati Paahauwera Treaty Claims Settlement Bill
  • Ngati Porou Claims Settlement Bil

All three Bills received the near-unanimous support of the House (with only ACT voting against the passage of the Bills to Select Committee).  Members on both sides of the House spoke with enormous respect for the people of all three of these areas and the hard-work of all involved was acknowledged.  It was a wonderful example of what can be achieved when (almost) everyone inside Parliament not only forges a sustainable partnership with Iwi, but also works with the other political parties to achieve a common goal.

For information on each Bill and the closing date for submissions, click on the following links:

In short, the Nga Wai o Maniapoto (Waipa River) Bill seeks to establish a co-governance regime for the protection of the Waipa River, and it is modelled on the co-governance scheme established over the Waikato River.  The Ngati Paahauwera Treaty Claims Settlement Bill and the Ngati Porou Claims Settlement Bill seek to give effect to the Deeds of Settlement entered into with the respective Iwi.  For those who oppose the Settlements, especially many on the East Coast who have fought this settlement over the past few years, this perhaps represents the last opportunity to argue your case.


Budget 2011: Initial Thoughts

May 20, 2011

I am currently down in Taranaki with limited internet connectivity so I will save a detailed analysis of the Budget for early next week. My initial thoughts are that it is a mixed budget but ultimately New Zealand today is almost exactly the same as it was yesterday which is an unusual experience following Budget Day.

How does it impact Maori?
– Increased spending on Maori education, health, and Whanau Ora. The Maori Party should be commended for being able to extract gains, however small, from a budget that was designed to reduce Government Expenditure.
– Increased legal aid funding. Good news for all of us working in the Waitangi Tribunal field.
– And the partial sell-down of several State Owned Assets will also be good news to iwi looking for a safe, reliable, New Zealand investment and it is a policy that will provide a much needed boost to the anemic NZ Stock Exchange.

After 170 years it still surprises me that Maori continue to look to the Government for the majority of our required support. We have the capability and the experience to look after our own people and greater focus on the actions of our iwi leadership is required in the respect. In the post-settlement era, there is room for iwi to provide greater financial, cultural and spiritual support to its members. At the Government level, Maori are just one of many competing groups of people who require support. We become truely independent when we no longer need the Government to provide for us.

Perhaps there is a case to be made for those iwi with the financial means to provide iwi benefit payments to those Maori families in need. Let’s not wait around for the Government to do something.


An Alternative Asset Sales Policy

May 17, 2011

Budget 2011 is only two days away and with an expected deficit of $17 billion there is going to be a large debate around government revenues and expenditures.  Earlier indications are that the Government is going to reduce expenditure on Working For Families and Kiwisaver and put their trust in an improving growth rate to restore the accounts to surplus over the next few years.  Central to this return to surplus will be a managed sell-down of the Government’s State Owned Enterprises portfolio.  I am broadly in favour of asset sales, although my approach would be entirely different from how a second-term National Government would approach the issue.

The big downside of running large deficits is the need to borrow more and more money, placing a huge burden on future taxpayers.  With our personal finances we are told to “save for a rainy day” and ensure that we have enough cash reserves or investments to cover any deficits (loss of income) that arise. During the early 2000’s, the Government operated large surpluses and, resisting the temptation to return those surpluses to taxpayers in the form of tax cuts, decided to invest for our future in the Cullen Superannuation Fund.  This was both inspired and foolish.  The Fund sought to address our future superannuation crisis but failed to provide for any short-term deficits.

The problem I have with the Cullen Fund is that it was the sole beneficiary of the surpluses of last decade.  It locked away a huge sum of money for an entire generation.  A better approach would have been to invest half of the surplus into the Cullen Fund and place the other half in a general investment fund which could then be used to better manage our way through periods of deficit such as like we face today.

So how does all this relate to asset sales? And, more specifically, where is the Maori interest in all this? This is where my alternative approach come in.

The way I see it, there are two principles to uphold with any asset sale policy. First, the asset remains in New Zealand ownership and, second, the Government receives a fair market price for the asset and can then use that income to either reduce the deficit or invest in infrastructure. In order to achieve both these principles, my proposal is that any SOE ear-marked for partial sale is offered for sale to the Cullen Superannuation Fund and interested Iwi only.

Under this approach, the asset remains in New Zealand ownership and continues to operate as a productive asset for New Zealand taxpayers, with the dividends being paid out to the Cullen Fund and Iwi instead of the Government. Over time, a greater percentage of each SOE can be sold to the Cullen Fund and Iwi (especially as more Iwi start to receive their settlement payouts).

The Government benefits in that it can realise the value tied up in SOE’s and use the proceeds from sale for investment in infrastructure or general deficit reduction.  This approach allows for the vast resources of the Cullen Fund to be employed in relieving the effects of running a large deficit without destroying the value of the Fund.  In effect, foreign assets could be sold to fund the purchase of the SOE’s which will maintain the value of the fund and provide for a solid dividend stream into the future.  This way, the Government benefits in both the short-term (through cash received from the sale) and in the long-term (dividends used to offset future superannuation payments).

How does this benefit Maori? It allows Iwi to invest into generally well-performing and long-term stable companies and reduces the risk involved in investing tribal money. Given the recent financial performance of many of the SOE’s, such investment will provide for a steady income stream in the form of dividend payments.  This approach also allows Maori to have a greater say in the operation of important New Zealand companies – especially in relation to the big power companies whose activities can have a big impact on the environment.  Many Iwi are interested in investing in SOE’s and creating a deeper economic relationship with the Government.  This is one way towards achieving that.


The Week Ahead: Sunday 15 May 2011

May 15, 2011

Welcome to Maori Law and Politics.  I am initiating a new feature today where I discuss the week ahead and what it has in store for issues of Maori law and politics.

Next week promises to be a very intriguing week in politics with the release of the Budget on Thursday.  By all accounts, National will release a very neutral budget which is aimed more at cutting government expenditure rather than the usual election-year lolly scramble that we have become used to.  Changes to Kiwisaver and Working For Families have already been foreshadowed, although there is unlikely to be any major structural changes effected by the Government as they seek to provide a Budget acceptable to both the New Zealand public and the foreign credit rating agencies.

For the Maori Party, the Budget presents an opportunity to launch their by-election campaign for Te Tai Tokerau.  Pita Sharples has come out this weekend and said they aim to win the by-election by highlighting the gains they have made for Maori.  It will be a case of hoping that many small achievements will combine to tell a positive narrative of their first three years in Government.  Given the rise of the Te Mana on the left, I would also expect some significant announcement in relation to Maori health or education by National and the Maori Party this week.  The campaign message will be loud and clear: The Maori Party can deliver improved services for Maori whereas Te Mana cannot.

I will cover the release of the Budget this week, although my analysis will primarily be focussed on any announcements in relation to Maori legal issues – particularly in relation to the Waitangi Tribunal, legal aid, and Treaty Settlements.

It will also be a very big week for three Iwi, with the first readings of three Acts of Settlement scheduled for Tuesday.  The Nga Wai o Maniapoto (Waipa River) Bill, the Ngati Porou Claims Settlement Bill, and the Ngati Paahauwera Treaty Claims Settlement Bill will all come before Parliament this week.  Again, these Acts provide National and the Maori Party the opportunity to highlight their Maori affairs record and take back control of the debate from Harawira and Brash – both of whom have dominated the media over these past few weeks.

Plenty to keep the pundits talking!

What’s Happening

Tuesday 3pm: First Readings of Treaty Settlement Legislation

Thursday 2pm: Budget 2011


By-Election Official

May 11, 2011

I never like being wrong, but news that Hone Harawira has officially resigned from Parliament, forcing a by-election in Te Tai Tokerau makes a mockery of my earlier statements on this matter.  What will make this by-election interesting is the prospect of three very strong candidates going head-to-head with each other.  Harawira and Kelvin Davis are already running, and the Herald today speculates on several high-profile Maori being lined up by the Maori Party.

Several high-profile Northland names have been speculated on as candidates, including broadcaster and actor Waihoroi Shortland, Ngati Hine lawyer Mere Mangu, Ngati Whatua chairwoman and health advocate Naida Glavish and Ngati Hine Runanga secretary and educationalist Pita Tipene.

I know very little about Shortland, but the other three will have strong support within the electorate.   Of the four, Glavish alone has a national profile, but has spoken of her reluctance to enter the political arena in the past.  Her support is most likely to come in Auckland where she will be well-known through her role as Ngati Whatua Chair.  Mangu, a passionate lawyer in the region, will have plenty of loyal support but such support is likely to be localised rather than reaching out across the region.  The same can be said for Pita Tipene, although he is a very active Maori leader in the region and was highly effective in organising the day-to-day operation of the Waitangi Tribunal Hearings in Northland last year.

The Maori Party would do well to convince either Tipene or Glavish to represent them in the by-election as both will provide a strong challenge to Harawira and Davis.  Whether they can win the seat is another matter entirely. Harawira is the frontrunner, and he should retain his seat with a well-disciplined campaign.  For Davis to win, however, all that is needed is for those who voted Labour on the Party vote and Harawira on the Electorate vote in 2008 to return to Labour.  One way of achieving this is with the support of the well-drilled Labour grassroots campaign team which proved so effective in Mt Albert and Mana.

Ultimately, Harawira’s fate depends on how well the Maori Party candidate does.  Support for Davis is unlikely to fall, so the question that remains unanswered is how much of Harawira’s support in 2008 was for him personally, and how much was because he was the Maori Party candidate.  With the Maori Party standing, Harawira will not secure as large a vote as he did in 2008.  By standing a Runanga candidate, and positioning itself more to the centre; the Maori Party can secure the support of the more right- and centre-leaning voters in the region.  A not insignificant 10% of the electorate voted National in 2008, and this will only add to those in the region who remain loyal to the Maori Party.  The first few polls will be fascinating.


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