Fisheries, Mandating and Internationalism

The first ‘closure’ of an historically-based grievance was a pan-tribal one, the 1992 settlement of claims over the loss of commercial fisheries, the follow-up to Labour’s interim settlement. Negotiations were held with Maori leaders endorsed by a hui convened by the Maori Fisheries Commission and deemed to be representing all Maori. The Crown offered to put up some $150 million to acquire for Maori a 50% share of Sealord Products Ltd. In addition, the commission was to receive 20% of the quota on new species entering into the quota management system. The Maori negotiators, and many others, believed that this offer, totalling around $170 million, was a one-off opportunity (given that the company had been put up for sale) that should not be passed by. The ‘Sealord deal’ was signed on 23 September 1992, and led on to the Treaty of Waitangi (Fisheries Claims) Settlement Act.

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The settlement was, however, heavily contested, with critics (including the National Maori Congress) feeling that too much had been conceded for too little. By statute, Maori were to relinquish customary rights over commercial fisheries and to lose the ability to make further claims or pursue litigation with regard to commercial fishing. It was argued that this, and other facets of the system, eroded rather than enhanced tribal rangatiratanga. While traditional fishing areas could become mataitai reserves managed by tangata whenua, for example, the management committees and their actions were subject to ministerial approval. It could also be argued that the reserves were little different from those allowed for in the 1945 Maori Social and Economic Advancement Act. In any case, this aspect of the settlement deprived tribes of full authority over ‘their own’ fishing grounds.

While National took over the iwi model for quota distribution purposes (to be operated in the interests of ‘all Maori’), the proceeds were not to go straight to iwi but to the fisheries commission, now reconstituted as the Treaty of Waitangi Fisheries Commission/Te Ohu Kai Moana. This would decide on all relevant matters, including mandating recipient iwi and their institutions and distributing assets secured under both the interim settlement and the new legislation. And the Sealord deal’s signalled intention to subtract the cost of the settlement from ‘any fund which the Crown establishes as part of the Crown’s overall settlement framework’ caused disquiet on broader grounds. It was ever clearer that Treaty settlements were ultimately to be governed not just by the nature of the proven breaches but, more importantly, by what politicians considered affordable. Reparations would need to reflect comparative rather than reparative justice.

The implementation stage of the Sealord deal, too, was to be marred by arguments centring on justice, in this case distributive justice. There were years of very public wrangling over such matters as the appropriate model for allocating quota to iwi – by coastline and/or population, for example. Urban Maori, moreover, considered their rights to have been neglected under the deal, and challenged the official operating definition of ‘iwi’ (an issue which had not been resolved as the century ended). Some groups generally regarded by others as hapu fiercely argued their status as iwi, as did some non-tribal (as well as urban) institutions. Despite all such problems, and however inadequate the final fisheries settlement may have been considered by many Maori, a pioneering transfer of major resources had been conceded. And a compensation precedent of considerable magnitude had been set.⁸

With Treaty negotiations increasingly on the agenda, problems of organisation, representation and mandating intensified. There was often no consensus on the appropriate grouping within a claims area – iwi, hapu,page 256 whanau, trust board, urban authority, incorporation or a host of others – to present and negotiate a Treaty claim. Even such fundamental issues as the number of iwi and how to define them remained contested within both state and Maori circles. There were countless debates and disputes on very many issues: tribal or sub-tribal boundaries, how leadership strata were to be selected to head various claims processes, what kind of organisation should prevail in post-settlement regimes. Apparent paradoxes arose. Some leaders who had warned that government franchising and funding of Maori organisations would (as history had shown) inevitably lead to appropriation and the debasement of rangatiratanga, now sought resources from Treaty settlements in order to help rebuild a tribal base that was free from Crown interference. Their quests were frequently hampered by the Crown’s dilemma, greatly intensified by Parliament’s repeal of the RIA’s ‘legal personality’ mechanism, over what entities and leaderships to negotiate and conclude settlements with. The state now had little choice but to invoke mandating procedures on a case by case basis. What seemed, in claimants’ eyes, to be already slow progress on hearing and negotiating claims was therefore often delayed even further.⁹

Divisions between and within Maori groupings opened or intensified as a result of vying for official recognition to effect settlements of historical grievances. Considerable tensions developed as leaders of various claimant groups felt their mana – both personal and tribal – was being impugned by the Crown’s refusal to accept their rangatiratanga unquestioningly and/or by its decision to deal with (or consider dealing with) others. There were suspicions in many quarters that government officials selected individuals and groupings that they found amenable to deal with; that the nineteenth century strategy of divide and rule had either been revived or had never gone away. Critics accused the Crown of listening too closely to pre-existing franchised bodies, such as the trust boards or the NZMC. Ministers and officials were allegedly attempting to seduce selected tribal groups into considering low-level Treaty settlements, which would create an unfortunate precedent for the rest of Maoridom. Delays meant many claimant groups became frustrated at being unable to access Crown resources to help rebuild their economies and enhance their communities. Instead of advancing, they were having to pour scant resources into researching, preparing and presenting their claims. Even when they received a favourable Tribunal report, they then had to begin another long process, that of negotiating, which had its own very costly implications.

Despite the various difficulties, however, progress was rapid by past national, and present international, standards, and the Crown’s adoption of a Canadian negotiating model expedited matters. There were interesting negotiating experiments, too, some of which had ramifications for rangatiratanga. When large amounts of railway lands were declared surplus during privatisingpage 257 processes, for example, the Crown participated in a ‘partnership’ experiment with the National Maori Congress in an attempt to balance Maori interests and government intentions. The resulting ‘Crown–Congress Joint Working Party’ was generously funded, although the effort produced few tangible results and differences within and between Maori components contributed to the eventual withering away of the congress itself. In other developments, aspects of local government reform, and 1991’s Resource Management Act, also incorporated responses to pressure for greater partnership with Maori. Towards the mid-1990s, iwi–local government relationships were being pioneered, such as a tribal confederation’s agreement in 1994 with its district authority: Te Whakaminenga o Kapiti partnership.¹⁰

Crown–Maori relations accompanied, reflected and were tempered by changes in the international environment, which many Maori followed keenly. In 1986, the ILO’s governing body had finally agreed to revise Convention 107, following ‘developments in the situation of indigenous and tribal peoples in all regions of the world’. This led to 1989’s Convention 169 on Indigenous and Tribal Peoples in Independent Countries, from which many of the assimilationist and paternalist elements of the previous convention had been removed. The new declaration, operative from 1991, gave fresh hope to indigenous groupings worldwide, although many remained unsatisfied both with the sub-state category it assigned them and the reluctance of states to ratify it. In 1993, the Draft Declaration on the Rights of Indigenous Peoples, initiated by the United Nations’ Working Group on Indigenous Populations, further raised expectations.

While many governments – including New Zealand’s – continued (and continues) to find difficulties with terms such as ‘self-determination’, the establishing of ‘new international standards’ seemed to reinforce the feasibility of finally ‘removing the assimilationist orientation’ still embedded in a number of governmental policies. International legal developments had provided part of the reasoning for the Australian High Court’s famous 1992 Mabo decision, which rejected the doctrine of terra nullius (upon which, essentially, Crown–Aborigine relations had previously rested) and recognised the existence of native title to land. The judgment also focused attention on the relatively advantaged position of Maori vis a vis the indigenous tribes across the Tasman. All such developments reinforced Maori determination to continue the struggle against remaining manifestations of previous official policies of integration/assimilation.¹¹

The increasing mix of international and autochthonous developments could be seen in the New Zealand Anglican Church’s adoption in 1992 of a new mode of governance. This incorporated a three-way partnership between pakeha, Maori and Pacific Islanders, and respected the tikanga of each. Supporters of the model, which had been influenced by developments in Ngati Raukawapage 258 and other tribes, would increasingly push for its adaptation and application to the governance of New Zealand. Some argued for separate Maori and pakeha debating chambers in Parliament, while others envisaged a third chamber, comprised of equal numbers of Maori and pakeha, to review all legislation to ensure that it reflected ‘real partnership’. Although some private organisations adopted something akin to the Anglican model, however, the New Zealand government declined to debate such issues.