Tribunal caves in before settlement steamroller

A very important piece in today’s New Zealand Herald, hidden behind its premium content wall.

David Williams, who has been involved in 14 Waitangi Tribunal inquiries starting with assisting Joe Hawke of Ngati Whatua back in 1977, is warning of the rush to settlements under current negotiating processes.

Some of this rush came out of the Government's post-election support arrangements with the New Zealand First and United Future, who have never shown much support for Maori aspirations.

Williams says the Waitangi Tribunal “has sought to avoid further marginalisation by tailoring its inquiries and their outcomes as closely as possible to the Crown's settlement policies.”

The evidence is two papers published by the Tribunal in December, The Waitangi Tribunal and the Settlement of Historical Treaty Claims and The new approach revisited: a discussion paper on the Waitangi Tribunal's current and developing practices.

To quote: "The short point is that the Tribunal is ready, willing and able to facilitate negotiation in line with Government and claimant aspirations for all Treaty claims to be settled as soon as possible."

“The Tribunal's new approach as now enunciated is profoundly disturbing. The Crown's settlement policy was adopted in 1995, despite an immense wave of opposition following the Hirangi hui of that year,” says Williams.

“It was adopted before the hearing of claimants' or Crown evidence in most districts of the country, yet allocated a ballpark figure for redress payments to hapu and iwi in the whole country and created a template for cultural redress remedies. This was akin to a court deciding on damages payable to plaintiffs, and other possible remedies available to them, in advance of hearing the evidence.

“All crucial elements of that policy were reaffirmed by the new Government in 2000 and continue to be implemented to this day.

In my view, the outcomes of Tribunal hearings should depend on the nature and the strength of the evidence put before it.“

Williams says the tribunal is now recommending claimants negotiate settlements in a single district-wide negotiation process for a comprehensive settlement.

He urged the tribunal go back to offering specific recommendations, as it did in reports back in the 1980s.

“The recommendations should relate to the proved strength of the claimants' cases in a hapu specific and location specific manner. The remedies recommended should bear some relationship to the evidence and the need for resolution of specific grievances. The Tribunal should do more than act as a conveyor belt that moves claimants along an orderly, lawyer-prescribed pathway towards acceptance of the Government's template for the settlement of historical claims.”

He says fast tracking is weakening the whoe settlement process, and are no more likely to bring an end to historic claims than the processes adopted by the first Labour Government in 1944 and the Muldoon National Government in the late 1970s and early 1980s.

“If Maori of this generation are again offered a ‘this is as good as it will get so take it or leave it’ settlement package, then neither they nor their mokopuna are likely to feel that the Tribunal and Crown settlement process has succeeded as an exercise in seeking truth and reconciliation,” Williams said.

Well said. It is clear many claimants are starting to consider the penny ante settlements currently going through as down payments, and iwi will get what they can and wait for another generation to get true justice.

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Ratcheting up the Treaty bureaucracy

The bureaucrats in the Office of Treaty Settlements have put their hands in the government’s pockets yet again and pulled out another plum - $5.2 million in the next Budget, to be spread over four years.

That means more bright young things marching down Lambton Quay to write papers and play at being the "Crown", just like a 19th century land purchase officer, and more money for the high priced consulting firms who are actually doing much of the talking.

Treaty Negotiations Minister Mark Burton says it will allow the Government to meet its deadline of requiring all historical claims to be lodged by 2008 and all historical settlements to be concluded by 2020.

What this government won’t do is give the Waitangi Tribunal the resources it has been crying out for to ensure claims are fully heard and reported on in a timely fashion, so the settlements can be negotiated on a proper basis that claimants can be happy with.

Nor does it do anything about the fact that many claimant groups are now reluctant to enter into the fray, because the amount they are being offered is so insulting. Unless Labour is prepared to put in more real money, that will get worse.

This is why the Maori Party refused to vote on the Rotorua Lakes settlement last week. Almost two decades of talking, and the only reason Te Arawa finally bit was Labour sweetened to pot to have some good news to announce just before the last election.

This is money for the bureaucracy, not the claimants, and bureaucracies are self serving, and self perpetuating.

Labour still has not come to grips with the claims arena. Its first minister for treaty negotiations, Margaret Wilson, ignored the portfolio for her first year in the job, because she was immersed in rolling back National’s attacks on industrial relations protections. OTS used the break to dig in a set of processes which were already failing then.

Mark Burton is also obviously not in charge. Settlements mean transfers of capital, both financial and political, and that means Michael Cullen and Helen Clark respectively. If either of those took on the portfolio, it would be a far better signal the government was taking it seriously.

The government is fearful that offering better settlements will trigger the ratchet clauses, by which Tainui and Ngai Tahu are each guaranteed 17% of the total settlement quantum, the ridiculous $1 billion fiscal cap.

I said years ago that Labour should have bought out Tainui’s ratchet clause a few years ago when it was in a cash crisis, and paid Ngai Tahu the same. It was fair enough the clause was in the Tainui settlement, given the political risks taken by Bob Mahuta et al, but there was no justification for Ngai Tahu getting it. It just means that Ngai Tahu hold the rest of Maoridom at ransom, as it tried to over the fisheries settlement.

So what relevance are the ratchet clauses to Labour’s current policies? Or its timidity.

There could be a way around it though. A question for Cullen etc, if anyone is asking.

When tribes buy Crown or SOE assets with their settlement funds, should that be at today’s valuations, or at their valuation in 1992, when the fiscal envelope was introduced?

Kite flying by the number

The Gerry Brownlee comments about the National Party's stance on the Maori seats is fascinating, not for what it tells us about National's policy but for what it tells us about Brownlee’s relationship with party leader Don Brash.

Brash today told Radio Pacific that Brownlee’s statement that National could reconsider what happened to the Maori seats "created some confusion and he's apologised to the caucus for that".

Brash said the National Party wants “a democracy where everybody is on the same roll. So that means that we want to get rid of the Maori seats."

Setting aside questions of why one roll means democracy, particularly in a proportional voting system, Brash has reiterated the policy.

In the process, he made the National Party caucus sound like some sort of Maoist self-criticism session. "I apologise for creating confusion.” Sounds like weasel words to me.

Brownlee is right. His statements over the weekend were a mix of scaremongering – "Martha. There may be 10 Maori seats after the electoral option. Head for Queensland!" – and realpolitik.

As long as the Maori Party retains seat in Parliament, and as long as Tariana Turia is one of those MPs, the Maori Party will not support a Helen Clark-led Labour government. That means their votes are available for a National-led coalition, if the price is right. Given the current state of the New Zealand electorate under the MMP system, making such an accommodation may be National’s only hope of regaining the Treasury benches.

Brownlee can do the numbers better than the former Reserve Bank governor. He is probably picking that Brash won’t be the one leading National into the next election campaign. He wants to make sure that whether it is John Key, Bill English or Jackie Blue leading that campaign, Gerry will still be in the number two slot. Or maybe even number one. So he is setting himself up as the go to guy, the one you need to talk to to get a deal.

The Tohunga Dialysis Act

A century ago a group of Te Aute old boys formed themselves as the Young Maori Party, whose aims included the improvement of Maori health and welfare.

As well as doing work at the village level, members like Apirana Ngata, Peter Buck and Maui Pomare sought political office, either as independents or as members of the existing Liberal or Reform parties. Ngata entered Parliament in 1905. Buck was given the Northern Maori seat in 1909 and Pomare took the Western Maori seat in 1911 with the Maori King’s backing.

It was Pomare, even before he entered Parliament, who instigated the Tohunga Suppression Act. As a doctor, like Buck, he had seen the way charlatans invoked tradition as a way of filling their own pockets, to the detriment of fellow Maori who took their medical advice.

Now Te Aute has given up another parliamentarian, the not so young Pita Sharples (not a medical doctor, but a doctor nonetheless). His co-leader in the (not Young) Maori Party is Tariana Turia, who ran a Maori health organisation in Whanganui before entering the House on the Labour Party ticket.

Their prescription for one of the most critical health issues facing Maori, the number of people whose organs fail because of diseases like diabetes, is to oppose National MP Jackie Blue's members bill setting up a national organ donors' register. The bill will stop family members overriding someone's wishes that their organs be donated after their death.

The Maori Party says it put the issue to party supporters at consultative hui during the break. The response was Maori do not believe in organ donation after death because the body is considered tapu.

Tell that to the Maori hooked up to dialysis machines for hours ever day waiting for a secondhand organ. Tell that to Maori health worker Phil Heremaia, who is giving up his job as a case manager at Counties Manukau District Health Board to mount a national education campaign on the issue.

It is Heremaia who is the descendant of Buck and Pomare, not today’s neotraditionalist Maori Party.

Politics is about leadership, not bowing down to ignorance and superstition.