Wednesday, April 04, 2007

Settlement process on trial in Tamaki

I’ve sat on this post for a couple of weeks ruminating, which is wrong for blogging, so now I’m spitting the cud.

Nothing of what I’ve seen subsequently has made me change my mind that the Office of Treaty Settlements has no business conducting business the way it does.

The Waitangi Tribunal was in Auckland last month to hear the Tamaki Makaurau Settlement Claim, an investigation into the process by which the Crown developed by direct negotiation and Agreement in Principle to settle the claims to Auckland lands of Ngati Whatua o Orakei.

It follows a similar hearing into an Agreement in Principle with Nga Kaihauto o Te Arawa, which will settle about half the claims to land around the Rotorua lakes, with no timetable or process on the table for settling with the 50 percent or so of Te Arawa who refused to join the talks.

Similarly, there is no process to consider interests other iwi or hapu may have in the Auckland isthmus.

Tribunal acting chairperson Judge Carrie Wainwright says it will try to get the Tamaki Makaurau Settlement report out in about a month.

Some impressions and comments.

Pressure has been building for several years for an investigation of the settlement process, and what are seen as the indignities claimants are put through. Tribunal chair Joe Williams seemed loathe to tackle it himself, but with Joe taking time out to finish the Wai 262 indigenous fauna and flora claim, Carrie has taken it on.

What came out under cross examination during the week should make it impossible for the Government to continue the process as it is. It is very clear the Office of Treaty Settlements makes things up as it goes along.

The Government claims the settlement process is subject to internal relativities, so inflated settlements late in the process do not devalue earlier settlements – or more to the point, the ratchet clauses in the Tainui and Ngai Tahu settlements, guaranteeing those post-settlement corporate entities 17 percent each of the total settlement putea.

These relativities have never been made transparent. Claimants can’t go to a table in the OTS annual report and discover they are entitled to x percent of the total. It is only after years chiselling that discover what the Crown negotiators think they are worth. The negotiation process is all about reducing expectations, nothing about a fair or even an economically viable settlement.

In fact what has been happening is that with land values increasing faster than the rate of inflation, those relativities are shot anyway. So what OTS is doing to get the settlements it is giving priority to – those where claimants are willing to essentially give up their rights for a full investigation of their claims by the Waitangi Tribunal and enter direct negotiations – is it is using accounting tricks to keep the reported quantum in line with the relativity structure.

In the case of the Auckland settlement, two examples of fancy bookwork are immediately obvious.

The value of the right of first refusal for surplus Crown land in the settlement area over 100 years is given a zero value. It should be known by now what such a right is worth. Ngai Tahu has had it for a decade, and being the middleman in every surplus land sale has provided a handy cashflow. It hasn’t been such a boon to Tainui, because there is less surplus land in the Waikato to clip the ticket on.

Ngati Whatua gets the right to buy land the navy is using in Devonport for its base and staff housing. It is said to be worth $80 million, but Orakei doesn’t need to pay anything up front because the navy is getting a rent holiday (on land it currently owns freehold) for 35 years. That means a generation or so hence, Ngati Whatua will start collecting market rents on a big tract of extremely valuable land.

Setting aside the question of whether Ngati Whatua o Orakei’s historical association with the North Shore is greater than that of say Marutuahu iwi, who sold the land, this is an extraordinary gesture to make to a relatively small hapu. As one lawyer confided after the hearing, everyone will want to negotiate with this team, because they are clearly the easybeats.

Judge Wainwright asked team leader Rachel Houlbrooke a series of questions designed to determine whether the OTS had any idea of the complexity of the history of Maori Auckland.

Houlbrooke listed a series of historical accounts OTS relied on (in addition to the overview written by Brice Stirling, which was kept secret until well after the agreement in principle was signed and want never peer reviewed or subject to any expert critique in a public forum). Wainwright’s response was that she would not have used any of that material, such as Russel Stone’s book on early Auckland, if she wanted to find out about Maori Auckland.

Wainwright also asked whether OTS had any second thoughts – did Houlbrook think there might have been things it could have done differently. After an evasive answer, Wainwright asked if Houlbrooke could not or would not answer the question. “Maybe both,” Houlbrooke said, bringing questions to a close.

One obvious way to determine a major issue like who had interests in the various maunga or volcanic cones around the isthmus would have been to hold a hui and thrash the issue out. Oh no, said Houlbrooke. It wouldn’t do to have people without a mandate to make those kind of concessions.

There is no institutional capacity within OTS to make judgments on Maori customary matters, no idea how to ask the questions let alone find the answers, and not even any sense about why this could be important.

In 2007, it should be completely unacceptable that a Crown agency responsible for dealing with Maori on such an issue has no institutional capacity for moving in tea o Maori.

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