Week in Review

After Ihumātao, Māori Party calls for Treaty overhaul

The Māori Party says all stolen land should be up for negotiation, even if it's now privately owned. National and New Zealand First reject the growing talk of re-opening Treaty deals or revisiting the ownership of stolen land. Marc Daalder delves into the potential fallout of any Ihumātao deal in this election year.

Māori Party President Che Wilson says the reported deal on Ihumātao should galvanise a total overhaul of the Treaty settlement process and that the millions of hectares of Māori land confiscated during the New Zealand Wars and under the Public Works Act that are now privately owned should be up for negotiation.

"This is now the time for the Government to do an overhaul on Treaty settlement policy," Wilson said. One of the features the Party would introduce would be "that any land is available for negotiation."

The call for wide-ranging reforms to a system that has largely been upheld, unchanged, by successive governments since the 1990s comes as the Māori Party itself is seen as being on the rebound. At the annual gathering of politicians at Rātana Pā last week, former Te Tai Hauāuru candidate for the Greens Jack McDonald endorsed the Māori Party candidate running for the seat. Former Labour MP and Auckland mayoral candidate John Tamihere also floated the possibility of running for the party.

Māori Party President Che Wilson walks at the front of the "Hands off our Tamariki" hikoi to Parliament last year. Photo: Lynn Grieveson

The seeming revival of the Māori Party's fortunes, after it lost its place in Parliament in 2017, has led to speculation about whether potential Māori Party MPs would bolster a National or Labour government. If the party continued to agitate for widespread change to the Treaty settlement process, it would be difficult to imagine a constructive relationship with National.

"Reopening full and final Treaty settlements and private property rights will never fly in a National-led Government," Simon Bridges told Newsroom.

Report of Ihumātao deal met with condemnation and praise

The report from Newshub's Duncan Garner that the Government would pay $45 million to Fletcher Building via Auckland Council provoked immediate reaction from all sides of the political spectrum.

On Twitter, Bridges labelled the potential spend a "waste" and said it would be "a slap in the face to everyday New Zealanders who are working harder & paying too much tax under Labour. It’s also a disastrous precedent, rewarding protestors & unwinding full & final treaty settlements."

Wilson hit back, saying Bridges was "incorrect. The Government does it for non-Māori all the time but there's double standards when it comes to treating the wrongs against Māori."

"The cultural sunflowers that comprise the SOUL movement and the Māori Party have no mandate, no authority and, quite frankly, no competence to change the settled architecture of the Treaty of Waitangi claims process."

The Taxpayers' Union condemned the reported settlement, saying it "looks dirtier by the day". Spokesperson Louis Houlbrooke said it would be "a brazen attempt to distance the Government from a deal it knows will be unpopular with taxpayers. The value of the grant is only the beginning of the cost. The real expense arrives when other activist groups across the country decide to relitigate old grievances in the knowledge that ‘full and final’ Treaty settlements are no longer full and final."

Green Party co-leader Marama Davidson weighed in in support of the deal. "The protectors at Ihumātao have created a huge opportunity for this country to have an enduring and hopeful conversation about true Tiriti justice," she said.

"I congratulate the Kingitanga and the kaitiaki led by cousins Pania, Qiane, Waimarie, Bobbi-Jo, Haki and Moana – for forcing a halt to the development so that this historical land can be protected and mana whenua rights affirmed."

Wilson also congratulated Pania Newton, who led the occupation of Ihumātao. "I want to acknowledge the amazing leadership of Pania Newton and the whānau at Ihumātao. They have been courageous throughout this whole time and if things get over the line, then they deserve public recognition as well as the recognition they're already getting," he said.

Deal could have far-reaching implications

Bridges said the deal could affect longstanding Government policy that Treaty settlements are not subject to further alteration.

"I can tell you categorically I have talked with senior iwi leaders who have been telling me since last year that if this is reopened and there's any kind of financial recompense, it will reopen their settlements because they will be duty-bound to push for more," Bridges told Newsroom.

"The cultural sunflowers that comprise the SOUL movement and the Māori Party have no mandate, no authority and, quite frankly, no competence to change the settled architecture of the Treaty of Waitangi claims process," New Zealand First MP Shane Jones told Newsroom. "The New Zealand First Party wants to see an end to the Treaty gravy train. Any suggestion that we should turbocharge it is farcical."

While one of the iwi that lays claim to Ihumātao has completed the settlement process, the land in question has never been part of any Treaty settlement.

That said, activists on the left have similarly endorsed the deal as paving the way for a change in this 25-year-old policy. "The Green Party position has always been Treaty Settlements should never be full and final anyway," Davidson said.

"The Greens do not support the default ‘large natural grouping’ of iwi that the Crown settle with because Te Tiriti upholds the mana of hapū. The Crown imposed a settlement process over hapū and this has created further harm and division among our people, and has allowed for ongoing breaches of Te Tiriti."

'South Canterbury Finance a precedent too'

Wilson echoed this idea. "Even though the Government always talks about 'full and final', the Government also talks about not setting a precedent. You have to find innovative ways [to solve these disputes], as they do for non-Māori issues all the time. The classic example is the South Canterbury Finance fiasco down south," he said.

"If we want a fair and just New Zealand where there is one law for all, then the way the South Canterbury Finance company and the people that lost were treated, Māori should be treated the same way."

'A rule until it's not'

Carwyn Jones, an associate professor at the Victoria University of Wellington Law School who specialises in Māori customary law and Treaty settlements, also takes issue with the existing process, but says that an Ihumātao settlement won't provide legal precedent for altering it.

"The Crown has these policies which it says it sticks to rigidly in order to maintain fairness across these different groups but actually, any time it's convenient for the Crown to make exceptions, it does that."

"That full and final rhetoric has always been a bit misleading and unhelpful. The Government's always had this policy of wanting to settle all the historical claims with particular communities at once in one settlement. In fact, when the policy parameters that they put on mean, for example in this case, that private land is excluded, it means there's never really been any discussion about how this particular land might be dealt with because it was not part of the negotiations at all."

Victoria's Jones doesn't think that the Government's potential action in Ihumātao will itself overturn precedent, however. "Often the issue is that some of the sites that are of most significance to [iwi] have been in private hands and so have not been part of the settlement, but those groups who settle will look to pursue the purchase of that land and it's usually just through a normal property transaction," he said.

"To some extent, that's partly what's happened here. Of course, you've got the Government intervention in terms of providing some of the funding for that. I don't see that it will disrupt the settlement process at all. I don't see that there's any reason to overturn previous settlements."

An opportunity for systemic change

While the deal might not provide a legal basis for a rehaul of the settlement process, Jones said it demonstrated how the Government's policy was often motivated by politics. "One of the frustrating things about the whole process is that the Crown has these policies which it says it sticks to rigidly in order to maintain fairness across these different groups but actually, any time it's convenient for the Crown to make exceptions, it does that," the associate professor said.

Wilson is banking on the Ihumātao settlement opening the door for further change. If the political pressure can be brought to bear, then the Māori Party has a veritable platform of reforms for the settlement process. "There would need to be more consideration for those that have already settled," he said, particularly if the process is able to look at privately-owned land.

"Treaty settlement policy hasn't been reviewed at all. Now, I'm not talking about just a review - we've got to change it. It's not justice, it never has been justice. You only ever get the maximum of two percent of what you lost."

Historian Vincent O'Malley has estimated that "Treaty settlements typically return 1 to 2 percent of what was lost so these groups are signing away 98 percent of value of the lands confiscated from them", according to Waatea News.

"What was taken was selected more for its fertility and strategic importance than for the owners' part in the so-called rebellion: some tribes in northern Waikato who had remained loyal to the Government lost land along with those who had not."

"This is our chance to re-look. When they established the Local Government Act, that meant that all local government land couldn't be part of Treaty settlements, for anyone after the change of the Local Government Act in 2004. Those who settled prior to that were able to access council land," Wilson said.

"I've been a Treaty negotiator myself. There are examples similar to Ihumātao all around the country, including in my own area and affecting my own immediate family."

Carwyn Jones agrees that Ihumātao could lead to changes due to political pressure. "The Crown might be more willing to be a bit more flexible about some of their settlement policy parameters," he said.

Millions of hectares of land could be at stake

Millions of hectares of land were confiscated from Māori during the New Zealand Wars between 1845 and 1872, as well as via the Public Works Act and through conversion after 1953.

After the invasion of the Waikato on false pretenses in 1863, the Government took 1.2 million hectares of land from iwi in the Waikato and Taranaki. In The Penguin History of New Zealand, historian Michael King wrote that "Waikato Māori were punished by the confiscation of 1.3 million hectares of land, which further crippled and embittered the vanquished tribes. This action also secured for the New Zealand Government, as it was intended to do, the land with which to reward the militia troops and settle new colonists."

"What was taken was selected more for its fertility and strategic importance than for the owners' part in the so-called rebellion: some tribes in northern Waikato who had remained loyal to the Government lost land along with those who had not; and the group that had been perhaps most bellicose in both the Waikato and the Taranaki wars, Ngati Maniapoto, lost nothing (the Government showed little interest in the precipitous hills and valleys of their rohe until it wanted to push the main trunk railway line through there in the 1880s)."

Land was also confiscated under the Public Works Act, which mandated that land should be offered back to original owners when no longer needed. Instead, the Government frequently onsold the land without any negotiation with iwi. The Public Works Act was involved in the dispute over Bastion Point, which saw Māori occupy confiscated land for 507 days over 1977 and 1978 until the occupiers' camp was destroyed by Police and Army personnel.

Under the Māori Party's stated policy all of this land would be up for negotiation, in order to, if not return to iwi, at least formally acknowledge the Treaty violations that saw it end up in private hands.