Tuesday, June 24, 2008

Cullen: Treaty momentum self-sustaining

Interview conducted by Adam Gifford with the Minister for Treaty of Waitangi Negotiations, Michael Cullen, in his office Wellington June 18, 2008, on behalf of Waatea News and broadcast on Paakiwaha June 23.

It started with a comment on the acceleration in settlement activity in the eight months he has been minister, and a question on what was driving him?

Dr Cullen: “A lot of that activity is building on what already being done, picking up on that and trying to move forward.

“It’s not so much what is driving me but for a variety of reasons things came together to create a momentum which is now self-sustaining to some extent. Because there is clearly progress occurring in the treaty area, people are wanting to get into play, to become part of the process of treaty settlements

“There has been very strong leadership from Maori which has worked to bring together groups of people who were previously not cohering to enable a range of issues to be addressed, and that has helped the Crown considerably given a couple of Waitangi Tribunal decisions and rulings clearly indicating the Crown was running into trouble in treaty settlements where there were overlapping claims and overlapping interests, and I clearly think we’ve learned a lot from that and processes are under way which are really looking very positive in terms of achieving outcomes which are enduring in that regard.

“What’s driving me is I think we do need to accelerate the process and we do need to be able to demonstrate we can deliver complex agreements, more flexible agreements, not a simple rigid model around single iwi, and therefore some real hope that we can finish the process of historical treaty claims, and I do emphasise historical in that regard.”

Waatea: Some of the criticisms were very much about the Office of Treaty Settlements (OTS) and its practices. Certainly the criticism of how it worked in Tamaki Makaurau, and Michael Belgrave pointed out, junior officials were ticking boxes to say which tribes had customary interests. That’s the first time since Waitara 1859 that the Crown took that responsibility on itself?

Dr Cullen: “And I think one of the things we learnt from that is where particular overlapping claims, ands that is a common phenomena of course, the Crown’s role is to try to facilitate agreement between different claimant groups rather than to try to pick and choose, and the analogy I’ve used a number of times now is I don’t think the Crown is very good, and certainly as minister I’m not very good, at acting as some kind of historical video referee where people go upstairs to the video referee to say ‘did it get over the line or didn’t it’ when there are arguments between individual iwi-hapu around particular interests, and what we’ve seen I think is the ability effectively to facilitate better dialogue within Maoridom around some of those issues, to try and achieve outcomes which people find fair and satisfactory. Otherwise what we do is we end up doing what we were doing, we talk to one group, we think we’ve got an agreement, and the agreement comes apart because someone else says ‘what about me?’”

Waatea: That mandating issue though? Very critical. Who should do that? Who should be the video ref?

Dr Cullen: “In terms of the mandating issue, which is somewhat different from the competing claims issues, because mandating is more about when you’ve identified the group, who speaks for the group, I don’t think we’re as well advanced as being secure about that. We haven’t had big difficulties, we’ve had some difficulties, but not big difficulties in that regard. And I there is there potentially a role for the tribunal or the Maori Land Court in that respect. I think the Crown if it becomes a really difficult issue around mandate recognition, can’t be the final decision-maker in that respect.

“We go on the best evidence we can but if people want to take us to the tribunal, we will.”

Waatea: Though in some areas, I’m thinking in particular Ngati Porou, you have made a call with a certain group. People are saying that once you get north of Tikitiki that runanga doesn’t have the support you think, that a lot of the support comes from out. But you’ve made the call, saying ‘we’re going to bulldoze ahead with this group?’

Dr Cullen: “What’s happened there is that in Ngati Porou we’ve often got agreements which are actually about the individual hapu. While it may be negotiated at runanga level, in effect at operational level it is the hapu, and that’s true of the foreshore and seabed agreement. It’s likely to be true of the negotiations around historical treaty claims with Ngati Porou. So those hapu in the end who are not part of that agreement aren’t part of that agreement. Now in one particular case there’s an argument even within that who speaks for the hapu. We go on the best evidence we can, but if at the end of the day people want to take us to the tribunal, we will take very careful note of any recommendations the tribunal makes in that regard.”

Waatea: There has also been a problem with Ngati Rangitihi splitting on whether to participate in the CNI settlement?

Dr Cullen: “What has been decided in that case is the obvious common sense solution, that is to take Rangitihi out of the central North Island settlement at this point, to take the allocation which was going to be allocated to them and to add that to the 10 percent reserve the Crown was already holding for any further claims, but also to provide in effect an open entry route back into the deal for Rangitihi if they can sort out clearly their mandating and consenting issues to the collective deal.

“It’s unfortunate what has happened but the tribunal has made suggestions as to the path forward and I hope people pick up on those suggestions.”

Waatea: It looks like the CNI deal is going ahead. The hall’s been booked.

Dr Cullen: “The Bill’s been introduced.”

Waatea: When?

Dr Cullen: “Yesterday (June 17). The first reading is next week, and because we expect hundreds of people for the Deed of Settlement signing, we will have the first reading that afternoon so they don’t need to come back down for it.”

Waatea: Discussing it (with iwi), it appears this is the population-based component of the settlement, with other details to be sorted out later?

Dr Cullen: “First of all it’s only about the commercial forestry land redress. It’s almost a suggestion made to me by (Crown Forestry Rental Trust chairperson) Sir Graham Latimer before I was minister in charge of treaty negotiations that we should perhaps try to settle some of those commercial interests first and then try to get on with non-commercial interests.”

Waatea: Define commercial?

Dr Cullen: “In the sense that this is all about the quantum of money and lands and ongoing commercial interests those iwi will have as a consequence of ownership of those forest lands.

“There’s a lot of other elements that will come into play as a result of those large non-commercial elements like cultural redress, the historical account for individual iwi, any other matters that are brought into discussion because again the shape of settlements have become a lot more flexible over the last few months.”

Waatea: And as I understand it, the current settlements and the company which will run the forests, the percentages are pretty much based on population. The underlying ownership of the land will then be sorted out and go over once this rotation is finished?

Dr Cullen: “Yes, what’s happened here is that the iwi themselves have agreed on the division of the shares in the collective. The Crown hasn’t settled that. Though interestingly enough, their decision was very close to our estimate of what it would be.

“The issues of mana whenua will be sorted out between iwi. The Crown is not going to determine those mana whenua outcomes.”

Waatea: The Waitangi Tribunal or the Maori Land Court have still not answered the question of who should have title, or if there is good title?

Dr Cullen: “But in the interim, and there is not really pressure on the iwi to settle those mana whenua matters, in the interim the iwi and their beneficiaries will have access to the income streams and a clear process around how those income streams are divided so instead of having to wait to settle what are quite difficult issues, the iwi and the beneficiaries are able to actually see through to the stage if you like and using the language again a commercial settlement and the commercial benefit of the ownership of those lands.”

Waatea: Because it is population based, it can be seen as a Labour socialist needs-based thing rather than the O’Regan thing of ‘so what we end up rich, it’s none of your business?

Dr Cullen: (Laughs) “I wouldn’t say that at all. As I say, the iwi themselves have settled that division of the ownership of the collective. The Crown has not tried to impose a model in that regard. We would have had questions had a model been suggested that was wildly different from where we thought things were going but that has not been the case so we’re very very happy with the outcome.

Waatea: Is it as model that may be applicable anywhere else but the central North Island?

Dr Cullen: “I think there are other examples where joint progress can be made, where there are issues, for example there are some issues around some foreshore and seabed claims where it would be very hard to draw a hard and fast line between different iwi claims.

“One is aware of 90 Mile Beach where one iwi draws a line here, another iwi draws a line significantly differently. It is very hard for the Crown to act as an historical video referee, because this is very much about battles that occurred in the 1820s.

“And probably my gut instinct is a solution is going to have to be found whereby we don’t have to try and resolve that if the two iwi cannot actually agree on an outcome, there’s going to have to be some kind of joint arrangement.”

Waatea: People who have had a long involvement in the claim sector that I have been talking to say there are still questions about the stickability of some of these claims, that there is still a perception that you are going in and talking to people who may present best, may have a track record of being around, whether they are representative or not?

Dr Cullen: “Well there are always minorities. One doesn’t expect any group of people to speak with a unanimous voice. What would concern me is if we see lawyers intervening basically to try and collect rents from small minorities in groups, because that is unfair to the great majority in iwi hapu.

Waatea: It’s not all lawyers I have been speaking to, but in the tribunal process there have certainly been suggestions of a certain amount of rent seeking?

Dr Cullen: “That may be true but the issues in dispute are important issues, and therefore the process becomes important.”

Waatea: “In the old days when Maori Affairs would do a lot of this stuff, they would know who was charlatan, who would represent people, so they could work this out?

Dr Cullen: “It’s true to say though that OTS is working more closely with Te Puni Kokiri than was preciously the case and indeed the cooperation between TPK, OTS, the tribunal and the Crown Forest Rental Trust has been at a much higher level in recent times, so there are a lot of people looking over these processes, so if there are really serious flags to be put up, then I’d expect them to be put up.”

Waatea: What do you think you’ve really managed to do by throwing Treasury into the process in the way you have?

Dr Cullen: “A number of things. Some of these issues, the Central North Island, the Waitako Tainui river discussions involve a range of complex matters which aren’t simple treaty settlements. Treasury brings to that process both a wider governmental view, experience across a wide range of governmental operations. It also brings a rigorous analytical view. It brings a lot of expertise around the financial and commercial arrangements where commerciality is involved in these matters, and if you talked to anyone involved in the CNI process, they would probably tell you the treasury involvement has been very helpful in an outcome.

“One thing I’ve learnt from this is it would probably be helpful to have Treasury involved in at least the more significant treaty settlements from an early stage, rather than some second guessing further down the tracks.”

Waatea: “If I could come back to the question I’ve been asking for years, because I think it’s germane to where the process may have gone off the rails. What are treaty settlements for? Why do we do them?

Dr Cullen: “Because we have a clear process for settling the historical grievances of iwi hapu who will be able to argue that they have been badly treated by the Crown in the past and that ranges from the extreme end of massive land confiscation, as obviously Waikato Tainui is one of the clearest examples of that, through to a range of rather dubious dealings by the Native Land Court and elsewhere where land was acquired, not always from people who were the proper people to make those decisions, through to a range of other slights and injuries and grievances around matters of language and culture and so on, all of which should be settled if we are to move forward in this country. We can’t move forward on a proper and honest basis unless those historical issues have been properly addressed.

“The great virtue of the Waitangi Tribunal process and the subsequent treaty negotiation process is we have a very clear method for achieving those outcomes in New Zealand.

“I think the hard thing to explain to many Pakeha is that the treaty remains however a living document and that contemporary issues will continue to arise in quite new circumstances, as they have for example round the emissions trading scheme and forest allocation units. Therefore we can’t say this is over and done with. What we can settle is the past. We can’t settle the future because we don’t know what it is.”

Waatea: In the past I have heard people, politicians, talking about the outcome of treaty settlements as being part of an economic development policy or a social development policy and I’ve always though they may not quite get what they’re hoping for there?

Dr Cullen: “No, but what settlements can sometimes do is provide a much stronger economic base and a social base for iwi and hapu moving forward and indeed what we’re looking for in a range of current treaty settlements for a variety of reasons may be trying to reestablish the base of that iwi in terms of its ability to deliver to its membership.”

Waatea: One of the things I look at is the process instigated by Labour under Matiu Rata, the 1975 Royal Commission on Maori Reserved Lands, which kicked off the process of returning blocks from Crown management back into Maori hands. That was a billion dollar transfer of wealth. Has that done much for the Maori rank and file?

Dr Cullen: “I think it has done a lot, because I don’t think we can underestimate the strength of the Maori renaissance in the last 25 years, and how much those kind of processes have contributed to that in a large variety of different ways, and certainly when you see what’s happening with Tainui, what’s happening with Ngai Tahu, you can see that their treaty settlements have been a very important part of creating a much stronger base for those iwi moving forward.

“There’s a new breed emerging in the management of iwi, and we’ve seen that very clearly in some recent negotiations which haven’t been very public around things like the forest allocations in terms of carbon credit units etc where we have seen people coming to the fore, taking on a leadership role and arriving at really excellent solutions from a broader New Zealand as well as a specifically Maori perspective.”

Waatea: This is of course not the first time you’ve seen treaty settlements from a Cabinet perspective because the previous Labour Government, the initial fisheries settlement was on your watch. What do you remember of that and how things differ now?

Dr Cullen: “I think that was sort of grasping in the dark for the broad shape of principles moving forward, a much different kind of process. What we’re dealing with now is the fruits of that work in terms of a clearly defined set of processes which can be followed – always new challenges, always new issues, but a much greater confidence about how to go about trying to settle those issues and meet those challenges.”

Waatea: What that government had to put up with is be in court every week with Matiu Rata ands Graham Latimer and Sian Elias and David Baragwanath throwing rocks at you?

Dr Cullen: “Yes, that’s right. Rocks still occasionally get thrown but luckily they tend to be a somewhat smaller size these days, I think as I say because we’ve got a clearer process.

“There will always be difficult issues that come up and the contemporary issues can be particularly difficult. It will be a great challenge I think for the Government when the tribunal finally produces its report on the WAI 262 claim, that’s going to obviously create some significant political interest, but I would hope that we’ve matured enough that we would be able to deal with those issues in a thoughtful manner moving forward.”

Waatea: There’s a perspective George Habib put to me once that if you look at New Zealand’s economic history, it was built on taking Maori assets by whatever means, and building a society, a country, an economy on it. When the government decided it was no longer in that business, the assets needed to go back to where they came from?

Dr Cullen: “Certainly New Zealand’s colonial history is a classic colonial history. Settlers came from outside and the losers in that were very largely the indigenous peoples.

“I think what’s different in New Zealand is not that we were much better or much worse in the 19th century – I think our claims to be much better have largely fallen apart under closer historical analysis – I think what we can say is we have developed much better processes in the last quarter century or so for resolving the consequences of that period of colonisation.”

©Adam Gifford 2008

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