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State Authority, Indigenous Autonomy: Crown-Maori Relations in New Zealand/Aotearoa 1900-1950

Crown negotiations with tribes

page 128

Crown negotiations with tribes

Maori efforts to regain land-based collective rangatiratanga had not proceeded far by the later 1930s, but there had been gains in other ways. The state was involved in some of these. A strengthening commitment to Maori physical well-being, an obvious prerequisite for resurgence, had been manifested in several ways: the establishment of nursing services targeted at Maori from 1911, the reconfiguring of the Maori Councils into health-oriented bodies in 1919-20, and the creation of the Maori Hygiene Division among them.

The latter two developments amounted to much more than a response to the huge Maori death toll in the great influenza pandemic of late 1918, which is the usual sole explanation for them. Government-sponsored Maori health initiatives indicated an increasing official recognition of the emerging demographic reality that Maori were far from a dying race. A more systematised approach to Maoridom and its problems was required. This was partly because such problems could be a drain on state coffers, but also because a 'strong native race' was regarded as useful for a range of reasons, including the performance of seasonal rural labour tasks.

However, government-initiated measures by the 1920s had little Maori involvement in decision making and were generally short of resources. Thus, the Crown's cross-tribal measures could not even partially compensate for the inability of pan-tribal organisation to achieve rangatiratanga. Many tribal groupings had therefore reverted to vocally reasserting their rights and aspirations as tribes. Their point of reference was essentially the Treaty of Waitangi and its promise of Crown page 129acknowledgement of rangatiratanga. In 1922 Ngata noted that the Treaty was 'widely discussed on all maraes' in the country: 'It is on the lips of the humble and the great, of the ignorant and of the thoughtful.' Inadvertently reflecting a reversionary trend towards tribalist means, he labelled as 'wishful thinking' efforts to get 'Absolute Maori Authorities' through pan-tribal methods. Hui after hui around the country resonated with tribally based aspirations and organisation, seeking redress for the worst of the Crown's violations of rangatiratanga and support for its re-establishment. This was particularly the case among iwi and hapu which had suffered the most dramatically or materially: those which had seen their lands conquered and confiscated, for example, or Ngai Tahu, which had been deprived of most of the reserves promised in return for relinquishing much of the South Island.

In the period after Maori were deemed to be satisfactorily pacified, from the mid-1880s, European scholars had been propagating the notion that tangata whenua constituted a 'superior native race' of 'Aryan' origin. The colonial incursion could thus be seen as like a 'family reunion'. This set the scene, when Maori did not physically disappear, for an intended final episode in the process of 'civilising the natives' — cultural extinction, a prelude to full assimilation. This would come about partly through intermarriage with pakeha, legitimated by the 'European' origins of Maori. But one consequence of the 'Aryan Maori' and other such theses was that, if Maori were 'superior natives', the need for full and final assimilation would be less pressing. In such circumstances, one might expect considerable toleration for Maori cultural difference and organisational practices, and some in the Young Maori Party and other Maori milieus 'assisted' in propagating the thesis for this reason.

However, the Crown's general preference remained to deal with Maori as individuals. In its rejection of communalism, this was the most assimilationist of paradigms. Quite apart from the function and results of the Native Land Court, many measures reflected the individualist ethos. The South Island Landless Natives Act, for example, epitomised a perception of Maori as would-be assimilatees to an ethic of individualism (or, at most, western-style nuclear families), rather than as members of tribal, sub-tribal or other collectivities. Maori determination to retain page 130collective social organisational ideals, and tribally based aspirations, frustrated and puzzled officers of state in particular and pakeha in general. Two 'liberal' pakeha historians writing in the 1930s reflected such perplexity in stating that 'sections of the Maoris still consider that they have grievances, and take curious steps to have them righted'. One Solicitor-General was not alone in depicting tribally based claims as 'absurd'.81

By the time of the First World War, some tribes had chosen to use the legal system in fighting for their cause. This could have ramifications for tribal dynamics, particularly as a result of 'modernising' and increasing the normal levels of interaction with the state in order to gain maximum leverage. From 1907, for example, the struggle for mana over the Rotorua lakes 'contributed to the institutionalisation of Te Arawa as a corporate group'. Other groupings, especially those at hapu or whanau level, had continued traditional, locally based protest methods. In the wake of the Maori war effort, the Crown could not entirely ignore collectivities engaged in such processes. In what would be a familiar pattern for decades, the government tended to respond to significant pressure by establishing 'independent' inquiries into the claims, expecting that these would both satisfy Maori that their concerns were being attended to and minimise Crown liability. In 1919 the Native Land Court's Chief Judge, Robert Jones, headed the first post-war inquiry, the Native Land Claims Commission. The Jones Commission told Parliament in 1920 that the Crown should have treated Ngai Tahu in a 'more liberal spirit' over the major South Island purchase, and that it now needed to offer redress.

The clear thrust of the evidence, such as it was, had put into perspective the state's belief that the 'landless natives' legislation had settled the South Island grievances. Jones' predecessor in the Native Land Court had recommended monetary reparation. The commission followed this up by declaring that the sizeable lump sum of £354,000 would be suitable compensation for Ngai Tahu. The government did not appreciate this recommendation, but neither was the tribe happy, wanting (in particular) return of land. Its fall-back position was cash payments in perpetuity, which would, among other things, be an ongoing reminder to the Crown of its past behaviour. The recommendation, however, gave Ngai Tahu a page 131bargaining platform, although the government 'did not hasten' on the matter and the negotiations would take almost a quarter of a century to conclude.

Meanwhile, other tribes achieved success on specific issues. These reflected not only tribal pressure, but also the powerful political influence that Ngata could marshal, even from the back benches. This in turn both reflected and contributed to a gradual alteration of attitudes towards Maori. In the political field such changes were personified in Gordon Coates. The first pakeha politician to become a leader on Maori issues, he had devolved many of his duties to Ngata; the Liberal back-bencher was widely seen as the 'unofficial Native Minister'. When Coates became Prime Minister (as well as Native Minister) in 1925, Ngata penetrated the world of parliamentary committeedom even further, becoming chair of the Select Committee on Native Affairs in 1926. By this time, he had achieved several results which were to provide a precedent for Maori aspirations. He was instrumental, for example, in ending the legal struggles of two tribal confederations with regard to ownership and control of lakes, achieving compensation for the Crown's assumption of ownership of the lake beds and use of the waters. Such reparatory settlements bolstered the chances of tribes like Ngai Tahu attaining at least similar methods of compensation.82

Such compensation regimes fell far short of meaningful rangatiratanga, with its implication of ownership, or at least unfettered management, of key resources. But the first to sign, Te Arawa, had seen little other choice, given sustained Crown opposition to their claims of full ownership of the Rotorua lakes. Officials and politicians did fear defeat on the issue in the courts, but a judicial victory for Te Arawa could be negated by legislation: the iwi knew that in the end a political settlement was required. On the Crown's side, a negotiated political settlement was preferable to both legislative action or any settlement that was a response to a judicial decision. For one thing, the judiciary tended to be less frugal than the government when ordering or recommending transfers of 'public good' resources. Far more important, legislative overturning of a judgment would have put the spotlight on myths about the role of courts in a capitalist democracy.

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In 1920, therefore, the Crown suggested an out-of-court, cash-based settlement, and on Ngata's advice Te Arawa decided to negotiate. After protracted negotiations, it agreed to relinquish claims to ownership of the Rotorua lakes. In return, from 1922 it would receive a perpetual annual payment of £6000, together with other concessions such as ownership of islands, management relationships and the right to catch indigenous fish. The income was not insignificant, and held out prospects of considerable future benefit for the tribal confederation. Indeed, many pakeha were surprised at its 'generosity'. It was perhaps relevant that Arawa, as Ngata noted, had been 'friendly' in the nineteenth century. But the state did not have a good track record in rewarding 'loyalty', as indicated by its rejection of Maori Parliament submissions or its treatment of Maori returned servicemen. Clearly, it saw advantages for the 'public good' in the deal; in particular, removal (or alleviation) of discontent among the iwi of the most strategically important tourist region of the Dominion.

Whatever the Crown's motivations, the 'Arawa Lakes' settlement embodied important precedents. First, the tribes viewed the payments as more than an annual reckoning for the Crown's past violations of the Treaty, seeing them as, in fact, a statement about their ongoing mana over the lakes. While the Crown took ownership, it was acknowledging a special tribally based nexus with the lakes and their associated resources. The deal thus gave multi-faceted benefits to the iwi. It provided a monetary resource base, it acknowledged some tribal involvement in control of waters and foreshores, and its conceptualisation of the lakes embodied Te Arawa's kaitiakitanga/guardianship. The tribes saw the settlement, then, as an assertion of rangatiratanga — not an ideal one, but an assertion nevertheless.

Second, the principle underlying the settlement was an important breakthrough in Crown concessions. The iwi as a collectivity was to be resourced, rather than the Native Trustee (for use on behalf of individuals) or Maori individuals. The tribal federation would be enfranchised to set up its own trust board. It was no accident that Treasury officials had opposed this model. Ostensibly, they claimed that the Native Trustee was quite capable of representing Maori interests, but their real reason page 133was ideological: the state should relate to Maori as individuals rather than as people aggregated into a tribal or other collective grouping. The trust board solution was not acceptable to all Maori involved, with some seeing a state-imposed recognition of collectivism as a negation of autonomist aspirations. Since hapu remained 'the powerhouse of Maori society', some leaders sought hapu-level or other sub-tribal settlements. But the majority of Arawa decision makers accepted that, at least at the time, the iwi base was the only viable option. Because the proposal embodied the communal principle, its value as a precedent was enormous.

Third, the type of collective organisation created a precedent that would survive for the rest of the century. The state had sought a method whereby the iwi could receive and spend public monies in an accountable fashion. A trusteeship model which provided appropriate guarantees was selected. However, against the wishes of many assimilation-oriented pakeha involved in the negotiations, a tribal trust board comprising Maori representatives from the dominant descent groups was finally agreed on after hard bargaining.83

With the creation of the Arawa District Trust Board (later Te Arawa Maori Trust Board), other tribes now had a precedent for a state-sanctioned means of receiving compensation payments. The trust board model suited the Crown, for it legally constrained methods and outcomes for distributing compensation. Moreover, the state saw the Arawa precedent as providing for welfare resourcing which it would have needed to outlay in any case — on health, housing and the like. Ngata, in defending the annual payments against political opposition, declared that they were to be applied for education, health, farming and other public purposes. Although the board concept was not tied to managing welfare and similar issues, the Crown was reasonably confident that a significant portion of its monies would go towards social services, precisely because a need to do so existed. More broadly, officials and politicians believed that, at the very least, any state-accountable mobilisation of tribal energies would promote social and economic development, which would be good for the country in general as well as for iwi. In the event, the Arawa board did encourage farming and other enterprises, and took up housing, health, educational and other matters normally the province of the state.

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In view of such developments, it was soon being argued that tribal authority was not being recognised in its own right through the new system. People began to emphasise that the trust board, far from being an organ of self-determination, had no more status in law than any corporate charitable trust, and that it was often, in its disbursement activities, acting in effect as a Crown agency. Yet Arawa confederation groupings, while aware of the limitations, sought to maximise their collective position through the board. In essence, they reappropriated what was a government appropriation of tribal organisational energies. At its initial meeting, the board appointed sub-committees, headed by 'ministers', to cover the portfolios of 'Marae and Pensions', land, education and special projects. The board 'saw itself as the parliament and government of Te Arawa' and 'fixed Te Arawa as the primary political unit of the inland Bay of Plenty and Maketu'. The various descent-group configurations saw the board, operating at a federal tribal level, as 'an alternative or accretion to their existing institutional resources'.

Despite the Crown's ultimate motives, through the board concept it had, in fact, acknowledged collective tribally based control of, and responsibility for, compensation monies and management functions. The board model was therefore seen by some tribes as a significant step towards state recognition and facilitation of tribal autonomy. There was great interest, for example, when the Arawa board decided, after discussions with Ngata, to establish a school of Maori arts and crafts in Rotorua. Under the trust board model, official recognition, in a legal sense, amounted in the eyes of some to a meaningful measure of self-determination. Not only was acknowledgement of the justice of compensation a breakthrough, but its administration system could, it was envisaged, be used to spearhead greater rangatiratanga. There was pressure on the Crown from within Maoridom to treat the Arawa case as a precedent.

The problem here was that the Crown, too, could see the autonomist potential. This cut across its desire to use the trust board concept to mobilise tribes for its own goals, rather than to empower them to effect theirs. From the beginning, in fact, the pioneering trust board was set up by the government in such a way that the state retained the upper hand — in details of administration and expenditure as well as in the broader page 135sense of treating the board as a virtual agency of government. The Native Minister presided over the first board meeting so that its members could better grasp what would fall within their jurisdiction. Ngata warned that the board, while encouraging farming and similar activities among its people, should not engage in business activities for entrepreneurial profit. Such restrictions were intended partly to minimise the chances of inefficiency or peculation, since this was a radical experiment that would be closely scrutinised by hostile observers. The Crown also feared that an independent economic base might enable a trust board to gain leverage against it.

In 1926 the powerful Tuwharetoa tribe settled its grievances over the Crown's alienation of Lake Taupo in a similar way to the Arawa Lakes. The government had controlled the negotiations firmly, initially insisting, for example, on dealing only with paramount chief Hoani Te Heuheu Tukino and his nominees. But there had been some tribal resistance, and hapu-based protest led to a widening of the Maori representation. After negotiation, too, the resources potentially available for tribal use were enhanced. Not only was a grant made to establish a trust board, but also income could increase in the future. The guaranteed annual payment was only half that of Arawa's, but Tuwharetoa's trust board would also receive, once a £3000 threshold had been reached, half of all annual licence fees for fishing Taupo and its surrounding waters. Such sums were not insignificant at the time.

Two years later, the trust board concept was extended to Ngai Tahu. The purpose of this board was not to receive monies, but to enable the tribe to facilitate negotiations with the Crown over the Jones Commission's recommendations, preparatory to compensation. As with the previous boards, the Crown had such great influence that its founding members were people the Crown could 'trust'. But already the existing boards were resisting Crown control. The government had been rebuffed in attempts to intervene in internal Tuwharetoa matters, such as the distribution of funding to marae. The Ngai Tahu trust board relationship with the Crown took on a similar trajectory.84

The trust board structure, along with the broad thrust of the settlements with historically 'friendly' or 'neutral' tribes, was eventually to become page 136the key precedent for other tribes. Those which had fought against the Crown, and had nurtured land-based grievances as a result of their punishment for doing so, sought to boost their case for reparations by pointing to these tribal settlements and ways of administering them. Their prospects improved after a new development. Following pressure over land-centred grievances, especially from the tribes whose land had been confiscated, the Coates ministry (prompted by Ngata and others) in 1926 appointed a Royal Commission of Inquiry headed by Sir William Sim. Its terms of reference were narrow: in particular, it was to examine whether the confiscations were excessive (rather than wrong), although it was to gently subvert this brief in the light of damaging evidence against the Crown.

As with the Jones and later commissions, the government intended that the claims would not be substantially upheld. When the Sim Commission reported on 26 June 1927, however, the report's ramifications were so great that it was suppressed from the public. After pressure for its release, it was published in 1928, to considerable impact. A commentator sympathetic to Maori causes recalled, a quarter of a century later, that the 'Maoris were vindicated and the last black cloud removed from their sky. Sixty years' brooding and introspection must leave their marks, but for the new generation the road to economic and social equality with the Pakeha was open.'

The commission found that the Crown had been remiss with the major raupatu tribes, and recommended reparations which followed the 'lakes precedent' of cash in perpetuity. It recommended redress of £5000 a year to Taranaki for 'land unjustly confiscated' and £3000 a year to Tainui for 'excessive' confiscation. In response, during negotiations with the Crown in the late 1920s and 1930s, the tribes sought retrieval of a land base on which they could rebuild rangatiratanga. The Crown was not inclined to sponsor any resurgence in tribal life in this way. Indeed, under Treasury influence, it was even resiling from payment-in-perpetuity settlements, being more interested in discussing lump sums.

This concerned iwi, for whom land or annual payments embodied, respectively, a fundamental or continual acknowledgement of past wrong. Ngataists who remained influential in state circles advised that the page 137aggrieved tribes would not make 'progress' until the 'mote in their eyes' was removed. The admission of wrong implicit in compensation, particularly in land or ongoing remuneration, was a prerequisite for this. The Crown was prepared, in name of a 'public good' emanating from the removal of deeply felt socio-racial grievances, to remain in discussions. But the possibilities it kept suggesting were rejected as inadequate in both kind and amount. Ngai Tahu, for example, was offered various lump sums (including one as low as £50,000), all of them falling far short of the Jones recommendation. However, the fact that royal commission recommendations for compensation had been made, and followed up, was seen by many tribes as a breakthrough in the long campaign for reassertion of rangatiratanga. Whatever the Crown resistance to the Jones and Sim findings and recommendations, then, these proved to be a significant weapon through the years.

The raupatu tribes, in fact, had been given sufficient ammunition by the commissioners' historical findings (crude as they appear, in retrospect) to argue that monetary settlements unjustly avoided the most pressing of their tribal aspirations, a return of at least some of the 'stolen' land. Non-raupatu tribes also took heart that independent inquiries had vindicated at least some Maori claims. Moreover, raupatu tribes which had not been treated sympathetically by the Sim Commission had begun to exert such pressure that their cause was taken up by the Maori MPs. Claimant tribes saw possibilities in Ngata's elevation to ministerial rank in a minority government that provided some potential influence for Labour.

By the beginning of the Second World War, the Crown's considerations of claims involved many tribes that lay outside the South Island and raupatu purview of most of the commissions' findings. In many eyes, the fact that the Crown now realised that tribally based claims could not be wished away constituted a considerable stride towards rangatiratanga. The state's willingness to negotiate owed much more to its desire to remove a Maori roadblock en route to 'national progress' than (as it would claim with Tainui) to 'enthron[e] justice above might'. But its perception of a significant roadblock reflected an intensifying of the Maori struggle in the period following the establishment of commissions and trust boards. Moreover, while the preferred destination page 138of the 'Dominion journey' included an assimilated indigenous population, the fact remained that, meanwhile, tribes were the entities the state had to negotiate with. For many Maori, such a holding operation gave hope for an ultimate change in government strategy.

Moreover, increasing legal recognition was being given to tribal governance systems. The 1928 Native Land Amendment and Native Land Claims Adjustment Act established machinery to tackle the claims considered by the Jones and Sim Commissions, and Ngai Tahu's trust board (established in 1929) pioneered procedures for that model. Other parliamentary recognition of Maori followed. The 1931 Native Purposes Act, for example, explicitly authorised the government to settle the raupatu grievances. In the event, negotiations were intermittent and prolonged, partly because an economic depression was hardly a propitious time. But that same year the Taranaki federation of iwi, considered the most 'recalcitrant' in their pursuit of compensation for raupatu, accepted an interim settlement based on an annuity to be administered by a Taranaki Maori Trust Boad. By the time the Depression-era government went out of office in 1935, the Tainui federation, too, had accepted in principle an interim settlement offer which would have led to its own board and suspended its wish for return of land.

The trust boards, for all their inherent and operational problems, were seen as a compromise that both sets of signatories to the Treaty, Crown and Maori, could live with. They made life easier for the state by establishing legal entities to which it could hand settlement monies in an accountable way, and with which it could deal. There were less tangible benefits too. During the Second World War, for example, Ngata noted that official recognition of, and payments to, the Taranaki and lakes tribes had created a spirit that added value to their contribution to the war effort. It seems that, in general, Maori leaders regarded the trust board concept as a meaningful, if inadequate, step towards Crown recognition of rangatiratanga.

While the existence of a funded board was seen as assisting the pursuit of tribal self-determination, which was increasingly important even to Ngataism from the later 1920s, the fact remained that the boards existed because they served to contain tribal ambitions within state-imposed page 139parameters. In the broader picture government policy remained unchanged: although tribal lifestyles and world-views could be tolerated temporarily in the interests of 'the nation', they should be kept firmly in check. Tribalism was destined ultimately to disappear, and its interim containment should preferably assist the Crown in its various aims.

This happened with some of the short-to medium-term goals, such as relieving the state of some of what would later be called its 'Article Three' Treaty obligations, those involving equality of various types for Maori. Given that the trust boards' very existence encouraged tribal autonomist ambitions, however, the state began to feel that it had been somewhat out-manoeuvred by Maori (even though this form of settlement had been a fall-back position for the tribes). But there seemed to be no better alternative, and the Crown's long-term strategy remained intact: removing the collectivity-based roadblock to assimilationist 'peace and good order'. The trust board system survived because, at the very least, it was not incompatible with eventual progress towards assimilation.85