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| Article: Analysis of the Ngaati-Ruanui Heads of Agreement |
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26 November 1999 at 14:49:06
"The Crown’ s proposal for the Settlement of Treaty of Waitangi Claims represents another fundamental breach of tino rangatiratanga. This hui rejects the proposals for the settlement of Treaty of Waitangi claims including the Fiscal Envelope in its entirety." "It was not a perfect document but it was the best the Crown could do" "Ngati Ruanai (should) not be fooled by the willingness of OTS officials who seem to accept the Crown mantra that these types of settlements are fair." On the 10th of September 1999 representatives of Ngaati Ruanui signed a Heads of Agreement with the Crown. This paper is an analysis of the main aspects of it and also of the Crown policy on Treaty settlements underpinning it. A recent study by a United Nations Special Rapporteur states that: "humanity has contracted a debt with indigenous peoples because of the historical misdeeds against them. Consequently, these must be redressed on the basis of equity and historical justice. "1 Does the Crown’s Treaty Settlement policy and in particular the Ngaati-Ruanui Heads of Agreement (HOA) settle that debt on the basis of equity and historical justice, or is some other basis used?
In December 1994 the Crown released details of its "Proposals for the Settlement of Treaty of Waitangi Claims." The proposals became known as the "Fiscal Envelope." The principles which formed this settlement policy were: 1. [T]he Crown explicitly acknowledges historical injustices; In response to those proposals Moana Jackson of the Maori Legal Service produced an analysis of the Crown proposals by posing critical questions about the Treaty settlement proposals. I believe that these are as relevant now as they were in 1995. 1. What should be the aim in developing aTreaty settlement process? That is, what should a settlement process seek to resolve, and why? Unfortunately as this analysis demonstrates the answers to these questions have been clearly unfavourable for Maori claimants. Moana Jackson was of the view that a settlement proposal will only be effective if it addresses the basic causes of grievance. What then caused the grievance? He finds that the massive loss of land, social dislocation, loss of political power and poverty were caused by European colonisation. The Crown proposals fails to address the causes of land dispossession. Rather than remedy the causes of dispossession the Crown seeks by its Fiscal Envelope policy to only remedy examples of it such as land dispossession. A writer agrees with Moana Jackson and states that: The difficulty for the Government is that this type of analysis introduces truly important questions in to the Treaty Settlement process. Yet a fundamental mistake of historical analysis has been made insofar as the Government has assumed colonisation to be an event with a finite timeframe which has already passed and which has resulted in a limited series of discrete problems.4 Therefore fundamental constitutional questions, of which the Treaty Settlement forms part, remain unanswered. Many of those who attended the Hirangi Hui called by Sir Hepi Te Heuheu in 1995 immediately identified that the bigger fundamental constitutional issues needed to be addressed first. The Crown’s response was predictable and Sir Doug Graham noted that "such issues had nothing to do with the proposals".5 The Crown clearly wanted to delimit Treaty Settlements within the current constitutional status quo under which the "Crown was to rule, and Maori were to be subjects." There was no way the constitutional genie was to be allowed out of its bottle. Doug Graham's Treaty analysis must be considered as shallow, one dimensional, and lacking any intellectual rigour, but then again he is a prisoner of his past. The assumptions underpinning the Crown’s view of Treaty Settlements: Other concerns about the Crown’s policies were: As Professor Mason Durie notes: The proposals did not explain how a sum of one billion dollars had been calculated, but it was justified as a political decision largely on the basis of affordabilility and acceptance to the wider community. There was an assumption that one billion dollars was fair and affordable. However, neither the methodology used to calculate the amount nor the basis for affordability was disclosed. The cap was taken as a given.7 Recently Crown officials have admitted that the figure was plucked from the air. Of the seven Crown principles underpinning its settlement policy, five are given pre-eminence and are directed at placating pakeha fear or anger. This is not a basis on which to achieve a fair, just and durable settlement. Unsurprisingly the Fiscal Envelope proposals were unanimously rejected by Maori at Hirangi and all thirteen "consultation" hui. It is quite clear that the Crown’s Settlement policy was driven not by notions of justice but by political expediency and the desire to limit its fiscal exposure. There have been 2 major land settlements since the policy was enunciated. In May 1995 the Tainui settlement was concluded with the Crown. The Deed of Settlement included a "relativity clause" to encourage a settlement, which noted that: [the] redress value represents 17 per cent of the value of the redress deemed to have been set aside by the Government for historical claims." The total package of redress was $170 million. The Ngai-Tahu Settlement concluded in 1997 contained similar terms after 6 years of negotiations interspersed with litigation. These "benchmark" claims have remained the standard by which all other claims are to be assessed. The corollary of this is that not only is the Crown judge and jury of its own case, but it asserts for itself the right to construct a hierarchy of grievances according to its own notions of justice. Significantly there is no relativity clause contained in the Ngati-Ruanui HOA, nor has there been one since the Ngai-Tahu settlement. Such a policy is discriminatory and inconsistent, advantaging those who "got in first". A recent letter from the Office of Treaty Settlements to the Ngaati-Ruanui Muru Me Te Raupatu Working Party is instructive of the Crown's position. When the Crown seeks to compare the historical experiences of iwi in order to determine benchmarks with existing settlements, it takes into account factors such as the amount of land an iwi lost, how the land was lost and the number of people who carry the grievance today.8 A valid question may be posed. Why should the perpetrator of "the holocaust of Taranaki history" be able to link the value of Ngaati-Ruanui's claim with others? Why should Ngaati-Ruanui's claim be constrained by the exercise of Rangatiratanga by Tainui and Ngai-Tahu in accepting their settlements? In effect the Crown delimits and subordinates Ngaati-Ruanui's Rangatiratanga to settlements over which they had no control but which ultimately affect their settlement. One of the factors the Crown has decided is relevant when considering the quantum of settlements is "the size of the population that carry the grievance." Such a concept does not apply to Pakeha - why should it to Maori? The formation of the Coalition Government in 1996 did little to change the Fiscal Envelope policy. Whilst the policy was officially abandoned, there was no real change, on the basis that: * The parties confirm that the Crown will endeavour to settle claims on their merits using the settlements already made as benchmarks, and will be fiscally responsible.9 The Taranaki Report The Taranaki Report: Kaupapa Tuatahi (Wai 143) was released in 1996. On the 24th of April 1999 the Minister in charge of Treaty Negotiations wrote to the Ngaati-Ruanui Muru Me Te Raupatu Working Party advising it that Cabinet had approved its mandate. The Heads of Agreement was signed on the 10th of September 1999 by representatives of Ngaati-Ruanui and the Crown. The next section of this analysis examines (briefly): The HOA is very similar to others drafted by the Crown. The HOA contains the Crown’s proposals by providing in a Deed of Settlement for the following Settlement Redress: First and briefly I will deal with cultural redress. The Ngaati-Ruanui HOA appears to be comparable to the Whakatohea HOA> An Auckland University Law Lecturer has said: The Whakatohea Settlement offer was to be a comprehensive settlement of claims to ALL taonga between the centre of the earth and the sky including political status and rights, intellectual property, etc. Whakatohea was used as a guinea pig for the comprehensive settlement model.10 It is clear that the Ngaati-Ruanui HOA will extinguish any Treaty rights to all minerals (including oil). The HOA makes provisions for protocols between Ngaati-Ruanui and the Ministry of Commerce which will be "consistent with legislation, policy and practice with respect to petroleum…"11 Current legislation policy and practice do not recognise any Maori ownership to minerals. The legislation makes it clear that the Crown owns all minerals. Whilst the HOA states that: Nothing in the Deed of Settlement will… A recent Canadian case (Delgamuukw v. British Columbia) has confirmed that aboriginal title is in a class of its own.13 In that case the court rejected the submission of the British Columbian and Canadian Governments that aboriginal title was limited to historical cases of land. Therefore indigenous First Nations could engage in mining oil and gas extraction even though they had not used their lands in this manner in the past. However the Court added two major caveats to this. First, it said that the land could not be used in a manner that is irreconcilable with the nature of the attachment to the land. Secondly the Court listed a myriad of example (hydro-electric power, settlement of foreign populations), which could satisfy the infringement of aboriginal title.14 The best that can be said is that the position is unclear. It is difficult to predict how a claim to minerals would be dealt with in New Zealand courts. It seems likely that any aboriginal title to oil and gold has been extinguished by successive legislation culmulating in the Crown Minerals Act 1991. The Court of Appeal reasoning in McRitchie v. Taranaki Fish and Game Council may mean that legislation inconsistent with aboriginal title may be sufficient to extinguish it, even where there is a Treaty provision in the empowering inconsistent legislation.15 Whilst the Waitangi Tribunal has not heard any claims to minerals or petroleum, the Tribunal’s jurisdiction gives it a much greater scope for investigation based upon principles of international law such as the right of development. The HOA would preclude any Waitangi Tribunal claims being brought on this basis. Similarly, the HOA prevents Waitangi Tribunal claims (apart from those specified) to rivers, lakes, waterways and foreshores. In the recent reports the Waitangi Tribunal found in those instances that the claimants concerned had "proprietory rights akin to ownership" in water. 16 In those cases the Tribunal said that the claimants should be compensated for the interference to their property rights. The claimants negotiators seem to be prepared to sacrifice these rights. Secondly, financial and commercial redress is made. The Crown propose to pay financial redress, as well as including mechanisms for the purchase of landbank properties, leasebacks and right of first refusal over any Crown property which may come up for sale. How the Crown arrived at $41million is not clear. However, what is clear is that Ngaati-Ruanui wished to attempt to quantify the contemporary value of the loss suffered by Ngaati-Ruanui. This of course was essential. How could Ngaati-Ruanui begin to negotiate with the Crown if it did not know of the approximate quantum of its loss? The Crown noted that: while Ngaati-Ruanui may consider such a quantification to be a necessary part of its negotiation preparations it is not something that the Crown requires or recommends claimants undertake... It [the Crown] does not try to estimate how much the loss may be worth today, an exercise that is highly subjective and something that is not likely to influence the Crown in its view on appropriate redress and further that the Crown will not be making any funding available for this purpose.17 A recent United Nations study has said: 12 7. Governments have a responsibility to ensure indigenous peoples have access to adequate resources to research and negotiate their claims so that settlements are equitable and enduring.18 The Crown’s refusal to resource the claimants to quantify their loss appears contrary to this. The Crown then refuses to recognise any process other than that unilaterally imposed by it on claimants. Nor is it minded or will it consider any evidence of loss Ngaati-Ruanui may wish to rely on. It has been noted: A settlement process founded on such disparate power relationships clearly advantages the powerful, knowledgeable parties. The flipside of this is that the disadvantaged parties may be easily coerced or even excluded from the process altogether.19 The Ngaati-Ruanui negotiations appear to demonstrate a disparate power relationship where a powerful Government dictates the terms to a weaker Ngaati-Ruanui. How can a settlement be described as "just" in these circumstances? The Waitangi Tribunal in its Taranaki report noted that it "appeared to us that generous reparation is payable...".20 Is the payment of $41million and cultural redress "generous" given the "holocaust" of Taranaki history? This is difficult to ascertain because as noted earlier the Crown have never articulated how and on what basis the cap of $1 billion was arrived at. Without this information how can Ngati-Ruanui possibly assess if it is generous, fair or just? "Fair" and "generous" in relation to what? The Crown ought to be obliged to disclose its methodology calculating their figure in addition to its assertions that it is fair. Further the Crown was not willing to provide funding to Ngaati-Ruanui to quantify its losses. Again without this information how can Ngaati-Ruanui determine whether the Crown’s offer is generous? The HOA states: 9.1 The parties acknowledge....... This simply cannot be reconciled with the Crown’s view noted earlier that quantification of loss "was not likely to influence the Crown" and was not prepared to provide funding to do this. More accurately the clause should state "The Crown is not prepared to negotiate with Ngaati-Ruanui or fund Ngaati-Ruanui to assess redress". To put the matter into context the government has indicated that it will cost $75 million to maintain the peacekeeping forces in East Timor. While in no way criticising that mission, it again confirms to Maori that the Crown accords international affairs and the external debt greater priority than the internal debt to Maori. An examination of the HOA's proposed conditions, acceptance of the Crown’s settlement proposal and acknowledgment is revealing. The consistent themes are: Given the unilateral imposition of the Fiscal Envelope, the disparity of power, and a settlement process controlled by Crown, how can the Crown possibly assert that the settlement is fair in the circumstances? Fair in what circumstances? Full and final settlement "The finality of settlements is the single most important feature of settlement policy…"23 In the Taranaki Report the Waitangi Tribunal landed a huge blow to the de-facto Fiscal Envelope policy operating since 1996. It noted: whatever the case, it seems to us that if full reparation based on usual principles is unavailable to Maori, …Maori should not be required to sign a full and final release for compensation as though legal principles applied. How tribes can legally sign for a fraction of their just entitlement when they have no other option is beyond us.24 Despite this the Crown still requires Ngaati-Ruanui to sign a full and final release for compensation. As the Tribunal notes tribes have effectively no choice. They can either "take it or leave it." Because of the process imposed by the Crown, the Crown’s proposal has a flavour of duress to it. The Crown's proposals for the settlement of Treaty of Waitangi claims represent another fundamental breach of tino-rangatiratanga. This hui rejects the proposals for the settlement of Treaty of Waitangi claims including the Fiscal Envelope it is entirely.25 All settlements thus far achieved including the Ngaati-Ruanui HOA have been under the framework and processes of the Fiscal Envelope categorically rejected by Maori in 1995. It has been noted that: And more damningly: Because of the "take it or leave it" approach on terms dictated by the Crown, it seems to be the case that under effective duress tribal leaders have taken a pragmatic (as opposed to principled) approach to take what they could get. Of all the HOAs signed only Whakatohea is the pressure or temptation to ratify the settlement resisted. "For any claims process to be effective in resolving indigenous land rights issues, it must be fundamentally fair.27 Summary The Treaty Settlement process under which the Ngaati-Ruanui HOA was achieved is structurally biased and manifestly unfair. It has been unilaterally imposed on Maori without consultation and despite its complete rejection by Maori. The "take it or leave it" stance effectively amounts to duress. By its terms the HOA appears to be contrary to Article 27 of the United Nations Draft Declaration on the Rights of Indigenous Peoples which states: "Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated. Where this is not possible thev have the right to just and fair compensation. Unless otherwise freelyagreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.28 The Crown controls the process which is driven by what it calls "fiscal responsibility" and its fear of a pakeha backlash. Further the process itself does not address the causes of grievance and until it does there will be no durable lasting settlements. "If war is the absence of peace, the war has never ended in Taranaki, because that essential prerequisite of peace among peoples, that each should be able to live with dignity on their own lands, is still absent, and the protest over land rights continues to be made.29 The question remains: can a settlement achieved by an unfair process end the war in Taranaki? Taki Anaru Notes 1 'Study on Treaties agreements and other constructive arrangements between States and Indigenous populations’ - final report by Miguel Alfonso Martinez, Special Rapporteur - United Nations Commission on Human Rights, 25 June 1999
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Copyright 1999 Victoria University of Wellington