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Maori and the State: Crown-Māori relations in New Zealand/Aotearoa, 1950-2000
Treaty Negotiations
Treaty Negotiations
Yet contracting and mainstreaming remained the desired Crown modes of interacting with Maoridom, and it was hard to see how this could result in either adequate recognition of rangatiratanga or in ‘closing the socio-economic gaps’. But in one area of Crown–Maori relations there was highly significant progress: the settlement of historical grievances under the Treaty of Waitangi. Settlements would provide, many Maori believed, both a form of Crown recognition of rangatiratanga and a cultural and resource base from which autonomist developments could be enhanced. Movement towards systematised negotiations had been established under Labour’s Prime Minister Palmer, with TOWPU taking the leading role among officials, but the Crown’s tentative offerings in ‘scoping’ negotiations with Waikato–Tainui had been rejected as far too inadequate. ‘It is better to have nothing than to be nothing’, one kaumatua had said.
Under the incoming government, Treaty negotiations initially fell primarily on Peters’ shoulders, with TOWPU and other officials attempting to keep up the momentum as the government collected its thoughts on the issue. At first, there was considerable scepticism within Cabinet as to the need for Treaty settlements, reflecting an ongoing backlash from sectors of the pakeha public. Throughout the 1990s, in fact, media coverage of Waitangi Tribunal hearings and Treaty negotiations led to considerable anti-Treaty publicity, and a corpus of racist literature by authors such as Stuart C Scott became hugely popular in some quarters. But Douglas Graham and some ministerial colleagues, and many officials and advisers, saw that Treaty-based application of healing processes was a key prerequisite for socio-cultural harmony. With Peters’ fall, Minister of Justice Graham gained full ministerial control of the task of negotiating (eventually adding a separate Treaty negotiations portfolio to his ministerial positions in 1993), and the pace quickened remarkably. Under Graham’s drive and commitment, and with the growing support of Bolger, together with the goodwill of the Labour opposition, negotiated settlements appeared viable.6
National had inherited some pioneering Treaty discussions and negotiations from Labour. It was as a by-product of Tainui’s legal case over Coalcorp that the Crown had opened exploratory negotiations with the tribe in 1989. Encouraged by initial progress in these, late that year the government decided to offer the possibility of ‘direct negotiations’ with claimant groupings who wished to bypass the long and expensive Tribunal hearings processes. This innovation allowed ministers and officials considerable manoeuvrability. There were ‘compelling reasons’ of state for progressing Treaty settlements, Graham later recalled. The government could not ignore the Tribunal’s moral standing, nor the embeddedness in public life of such matters as ‘thepage 254 principles of the Treaty’, social justice impulses and international guidelines. More prosaically, the Tribunal’s compulsory powers put the government in the ‘perilous position [of having] unacceptable financial risk’ hanging over it unless it addressed claimant grievances. On a general level, social harmony would always be impaired if a significant sector of society remained aggrieved; in the early 1990s, public order might well be threatened if Maori hopes of progressing settlements were dashed.
The lead role for developing negotiations policy had been assigned to a ‘Crown Task Force’ comprised of ministers and officials from TOWPU and elsewhere. This was authorised to negotiate draft settlements with tribes which could prove Crown breaches of the Treaty, whether or not they had Tribunal reports – subject to ultimate ratification by Cabinet and (for large settlements) Parliament. By the time negotiations began to escalate under Graham’s leadership, however, a major problem was becoming apparent. The 1991 repeal of the Runanga Iwi Act had jettisoned, along with devolved powers to iwi authorities, systematised legal and bureaucratic mechanisms for setting up and/or mandating state-recognised tribal entities. The new government was expressing serious intentions of addressing historical grievances, and had set in place ambitious targets for doing so, but the tribal and other fragmentation accompanying colonisation and post-colonisation meant that it faced a confused and contested socio-organisational landscape (and while there were some pre-existing mandated entities such as trust boards, even their mandates were often contested within tribes). The Crown had now to grapple with the question of which Maori groupings and representatives it was to consult and negotiate with, a problem that was often to plague reparational negotiations.7
6 Graham, Trick or Treaty?? p 45; Graham, Douglas Sir, ‘The Treaty and Treaty Negotiations’, in Clark, Margaret (ed), The Bolger Years, 1990–1997, Wellington, 2008, p 172 (for ‘be nothing’ quote). The ‘popular’ hostile writing on the Treaty remains unexplored by scholars. For samples, see Mitchell, Robin, The Treaty and the Act: The Treaty of Waitangi, 1840 and the Treaty of Waitangi Act, 1975, Christchurch, 1990; Scott, Stuart C, The Travesty of Waitangi: Towards Anarchy, Dunedin, 1995 and Travesty After Travesty, Christchurch, 1996; Christie, Walter, Treaty Issues, Christchurch, 1997, A Race Apart: Parliament and Race Separatism, the Story, Auckland, 1998 and New Zealand Education and Treatyism, Auckland, 1999; and for more sophisticated anti-Treaty critiques, see Minogue, Kenneth R, Waitangi: Morality and Reality, Wellington, 1998; Round, David, Truth or Treaty? Commonsense Questions about the Treaty of Waitangi, Christchurch, 1998; and Epstein, Richard A, The Treaty of Waitangi: A Plain Meaning Interpretation, Wellington, 1999. For an analysis of the anti-Treaty writers, see Hill, Richard S, Anti-Treatyism and Anti-Scholarship: An Analysis of Anti-Treatyist Writings, Treaty of Waitangi Research Unit, Wellington, 2002.
7 McCan, David, Whatiwhatihoe: The Waikato Raupatu Claim, Wellington, 2001, p 264 (‘scoping’ negotiations); Graham, ‘The Treaty and Treaty Negotiations’, p 166 (for ‘perilous position’ quote); Mahuta, ‘Tainui’, p 29; McKinnon, Malcolm, Treasury: The New Zealand Treasury, 1840–2000, Auckland, 2003, p 410; Walker, Ranginui J, ‘The Genesis of Direct Negotiation, the Fiscal Envelope, and their Impact on Tribal land Claim Settlements’, He Pukenga Korero, 3(1), 1997, pp 12–5; Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims: Summary, Wellington, nd [1994], pp 15–6; Office of Treaty Settlements, Healing the past, building a future: a guide to Treaty of Waitangi claims and negotiations with the Crown, Wellington, 2002; Orange, An Illustrated History, pp 185, 196–8; Price, Richard T, ‘New Zealand’s Interim Treaty Settlements and Arrangements – Building Blocks of Certainty’, Presentation to the Forum on Treaty Negotiation, ‘Speaking Truth to Power’, 3 March 2000 (revised 26 April 2000), British Columbia Treaty Commission and Law Commission of Canada, p 8; Hazlehurst, Political Expression, p 177.