Resources, Rights and recognition: Negotiating History in New Zealand

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On May 22nd, 1995, the Minister in charge of Treaty Negotiations, Mr. Doug Graham, issued a statement from his office outlining the "Deed of Settlement" that had been agreed upon between the Crown and the Waikato-Tainui people of the central North Island in the resolution of their historical land claims. This agreement confirmed the "Heads of Agreement" signed in September of the previous year, and subsequently was ratified by a postal ballot of the Tainui people.

The Tainui settlement is widely - but not universally - regarded as one of the successes in the ongoing process of negotiations between the Crown and Maori on the rectification of historical wrongs and the restoration of confiscated lands. The announcement of this agreement came, however, at the same time as the government's proposals for a full and final negotiated settlement of all outstanding claims-the "Crown Proposals for the Settlement of the Treaty of Waitangi Claims" - was roundly rejected by all Treaty of Waitangi Claims" - was roundly rejected by all Maori tribes. As a result, the Crown has been forced back to a position where it is bound to reevaluate the process of settlement of claims and, especially, the processes of negotiation that are supposed to shape the settlements.

In particular, both the success of the Tainui settlement and the failure of the proposals for the full settlement of all outstanding claims should compel the government to reassess those key assumptions which shape the dialogue between the Crown and Maori. At the very least, two key issues stand out: one is the recognition that the Crown is now directly to be involved in a process of negotiations which may be an unfamiliar position for an otherwise sovereign government; the other is that, in becoming engaged in this negotiation, the central task will be to develop a bicultural process of negotiation, which, again, is not typically the familiar experience of governments.

All of this-the recognition of historical wrongs, the emergence of a political climate of restoration, the desire to settle the claims-takes place in the shadow of the Treaty of Waitangi, signed in 1840 by representatives of Queen Victoria in New Zealand and a number of Maori chiefs. That Treaty has recently emerged, after a significant period of neglect or outright rejection, as the key source of the principles that shape both the substantive rights of the Maori and the political relationship between them-as tangata whenua, the indigenous peoples of the land - and the Crown.

The Tainui and Sealords Settlements

The terms of the Tainui settlement are, in part, that three is to be financial redress of $NZ170 million, including cash and land; the return over the next five years of approximately 39,000 acres of Crown land; the establishment of a land acquisition trust to enable the Tainui to acquire more land; and, significantly, an apology from the Crown to the Maori for the historical injustice of the land confiscations.

The settlement itself reflects a recognition that the confiscation of land and resources in the late 19th century was unjust and a breach of the Treaty of Waitangi. The apology acknowledges that the Crown and its agents acted unjustly in dealing with the Maori and especially with members of the Kiingitanga movement. What is significant is that the apology recognizes that the Kiingitanga movement, following Potatau te Wherewhero as the Maori King in the 1850s, sought to preserve the Maori cultural heritage and no preserve the Maori position as Kaitiaki, or guardians, of the natural resources of the land. In the context of the ongoing political debate and faltering negotiations over land, resources and sovereignty, it is also significant that the statement accompanying the apology acknowledges that the confiscation of land and the actions of the Crown in the late 19th century were breaches of the second article of the Treaty which preserves to the Maori their tino rangatiratanga, interpreted variously as the possession of lands (in the Crown's interpretation) or sovereignty over their lands (in the Maori interpretation).

This settlement is important for a variety of reasons: first, because it provides a practical settlement of substantial land claims; second, because it is the product of a long process of negotiations between the Crown and one of the Maori tribes to be negotiated); third, because it links the issue of te tino rangatiratanga with those of financial and land settlements, thus shaping the agenda of ongoing negotiations; and fourth, because it is an exercise not simply in the settlement of formal claims but also part of the process of healing of grievances, in the provision of a formal apology from the Crown.

What this suggests is that the "successful" negotiations over land and resources between the Crown and Maori need to reflect this degree of linkage, of the material, the political and the spiritual or affective parts of the process.

What this settlement also confirms, together with a shift in the political and legal climate over the last couple of decades, is that the Treaty of Waitangi is the constant backdrop to both the negotiations and the legal action through which Maori seek not only the rectification of historical land claims but also a stake in the economic future of the country.

That economic stake was given some form in an earlier settlement between Crown and Maori in respect of historical and economic claims over fisheries resources. In September 1992, a deed was signed between the Crown and Maori in full and final settlement of all claims in respect of fisheries resources. This deed was known as the "Sealords" deal as it involved government assistance to the Maori in the purchase of a fishing company of that name. It was not without difficulties and immediately produced legal action in the New Zealand courts, claims before the Waitangi Tribunal (the statutory body charged principally with hearing Maori claims and making recommendations for settlement to the Government), and before human rights bodies in international fora.

The immediate problems with the Sealords deal concerned that part of the deal which stated that this was a final settlement of all claims under the Treaty. While the deal survives and continues to shape Maori participation in the use of fisheries resources, it does reflect the issues that need to be addressed in the negotiation between Maori and Crown of the use, ownership, conservation and management of resources.

The practical issues identified in each of these "successful" cases are: first, that the Crown is placed in an unusual position of having to negotiate rights and resources rather than exercising the more familiar and directive powers of government; second, that such negotiation necessarily includes - for the Maori at least-the consideration of sovereignty or self-determination; third, that while the agenda of the negotiation - for the public, the media, and probably the government - is primarily economic, for the Maori it is also a matter of recognition and identity; and fourth, that the negotiation - for the public, the media, and probably the government - is primarily economic, for the Maori it is also a matter of recognition and identity; and fourth, that the negotiations are tribal and not pan-Maori in their nature, because of the structure of Maori society. The problems that remain with the Sealords deal are that the largely unstructured form that the negotiations took left many Maori feeling excluded from the arrangements and unrepresented in the dialogue. To that extent, the "success" of these two examples indicates the distance still to be traveled in the development of an intercultural process of resource negotiation.

The "Fiscal Envelope"

In late 1994, the Office of Treaty Settlements (part of the Department of Justice) issued the "Crown Proposals for the Settlement of Treaty of Waitangi Claims." The proposals - which came to be known as the "fiscal envelope" - outlined a process for the full and final settlement of all outstanding Maori claims, as a reflection of the Crown's desire to avoid the ongoing litigation and negotiation of settlements on a piecemeal basis, and in recognition of the Crown's financial obligations to other constituents. The documents containing these proposals were, notwithstanding the involvement of the Ministry of Maori Development (Te Puni Kokiri), a government initiative, reflecting the persistence of a unilateral approach to both the process and substance of what are, of necessity, intercultural negotiations.

The core of the proposals consisted of a process of negotiation and a financial ceiling on all claims. The preliminary stage of the process was that these proposals would be taken around the country to a number of hui, or meetings, on tribal marae, or meeting grounds.

Almost immediately the proposals were resoundingly rejected by a major gathering of Maori at a meeting convened by Sir Hepe Te Heu Heu, a highly respected elder. The proposals received a similar reception at all other hui. With that reception, the proposals are now on hold, and the negotiations will need to start again, though the Minister still appears committed to the concept of the "fiscal envelope."

At the same time, New Zealand saw a number of Maori occupations of land, as part of the assertion of title and tino rangatiratanga over disputed lands. The most significant of these was the 11-week occupation of a park in the North Island city of Wanganui, called Moutoa Gardens, renamed Pakaitore Marae. That occupation ended only after the High Court determined that the city council had legal title to the land and the occupiers, facing eviction, walked off the land. While the High Court has determined, for the time being, the formal issue of title, what is clearly not settled is the Maori assertion of, in this case, wanganuitanga, or the exercise of the sovereignty of the tribal peoples of Wanganui over that land. Nor, for many, is the resolution of the issue of title under the common law a final resolution of the issues of ownership and title under Maori law.

What went wrong with this process? What can be learned from the "fiscal envelope" and the land occupations for the ongoing negotiations between the Crown and Maori over land, resources, and recognition."

Paths to Rights and Reconciliation

There are four main means by which claims to the return of land and resources can be exercised in New Zealand. The first is the legal process, the assertion of claims through the regular courts. What this process has produced is a growing body of Treaty jurisprudence and the recognition of categories of indigenous claims under the Treaty. Second, claims may be brought before the Waitangi Tribunal, established under the Treaty of Waitangi Act 1975, to hear all claims arising since the signing of the Treaty in 1840. This process has the advantage of being meticulously researched, culturally appropriate (hearings are typically held on the marae where the claim arises), and more accessible than the court process. It has the major disadvantages of being significantly underfunded, thus facing major delays in hearings, and being a process which can only produce non-binding recommendations to the government. The mediation provisions of the Tribunal's empowering legislation also appear to have failed, not because mediation is an inappropriate process but rather because the Crown's agent in these negotiations, the Crown Law Office, has refused to become involved in the bargaining process. Third, there is the process of negotiation which can result in significant settlements (as in the Tainui and Sealords cases) or can fail resoundingly (as in the Office of Treaty Settlements proposals). Fourth, there is the more direct and confrontational process of land occupations and assertion of te tino rangatiratanga.

Perhaps because of its complete failure, the Office of Treaty Settlements proposal is the most instructive on where negotiations go wrong, where the assumptions about the nature of negotiations are flawed, and what the agenda of these kinds of negotiations needs to include. The key features of those proposals for our purposes are: [i] the Crown excluded from the negotiation any claims to ownership by Maori of natural resources (the "conservation estate"); [ii] the Crown established and controlled the proposed process of negotiation by setting out in detail what claimants would need to do in order to have a claim "on the table" for the purposes of negotiation and by stating in a advance that the Crown's position on the extent of the claimed breach of the Treaty would determine the Crown's offer of redress; [iii] the Crown in the Minister's public statements, rather than in this document, clearly excluded from the negotiation agenda any discussion of issues of sovereignty or self-determination, thus denying a linkage which, for Maori, is inescapably part of their relation to the land; [iv] participation in this process of negotiation would require waiving of all other channels of redress, such as the Courts or the Tribunal; [v] settlements under this process would provide compensation drawn from a capped pool of $NZ1 billion (from which the settlements under the Tainui and Sealords deals would already be subtracted, thus reducing the available pool of compensation for remaining Maori tribal claimants). The features of this negotiation agenda which effectively assured its rejection are the state's unilateral control of the conditions of entry to and the process of negotiation, and the exclusion of at least two main elements which, for the Maori, are inseparable from the immediate issues of land: Maori participation in the management of the "conservation" estate, and the linking of sovereignty and self-management to the return of land.

The importance of the conservation issue to the Maori is evident in an argument that was being taken to the Court of Appeal by the Ngai Tahu people of the South Island even as the Crown's proposals were being rejected throughout the country. The Ngai Tahu claim rests on an argument that the Crown, under the Treaty of Waitangi, did not have exclusive ownership of conservation resources, and that the Maori, under the second article of the Treaty, retained both te tino rangatiratanga (sovereignty) and kaitiaki (stewardship) over natural resources within the boundaries of tribal claims to lands, and over taonga, or the treasures which are not merely material but also spiritual and ecological. The specific claim here involves the Department of Conservation's claim to exclusive powers over the allocation of licenses in respect of whale watching activities off the Kaikoura coast of the South Island, which claim is consistent with the government's position in the settlement proposals: that the ownership of natural resources by Maori is not an issue either for negotiation or the reallocation of rights.

An Intercultural Process of Resource Negotiations?

Given this recent history of court action, negotiations, and confrontations, what works and what doesn't? The lesson from the Tainui and Sealords deals appears to be that a process of bargaining which ties the restoration of land and economic resources to a degree of autonomy and control is essential; that such material restitution needs to be linked with a genuine recognition of Maori identity; that the process of negotiation cannot be a monocultural one; and that the exercise of restitution is also one of assuring the Maori of an economic stake in the future. What remains contentious are the two main issues mentioned before: the linking of sovereignty with the restoration of land and resources; and the inclusion of conservation lands and resources within the package of what is claimed.

As the title of this article suggests, what is at issue is the linking of the issues is the linking of the issues of rights (as the formal, legal bases for settlement), resources (as the material and spiritual foundations for a people's future) and recognition (of identity and mana or status). Bargaining typically involves the narrowing of the agenda of what is at stake and the identification of what can be bargained about and what cannot. Where there is a narrowing of what is at issue either too soon or unilaterally (as in the negotiation of resources between the Maori and the State), this will create the sense that there is not a genuine process of negotiation, but something more akin to consultation. And where those issues that, for one party, are inseparable from the material concerns of land and economics, are specifically excluded from the bargaining, the grievances behind the claims are unlikely to be healed.

The recent experience outlined in these examples suggests that there are two main elements that are central to the negotiation of resources in Aotearoa/New Zealand - and elsewhere, where there is bargaining between the indigenous nations and the central state. Those elements are: first, the joint and intercultural development of the agenda of the negotiation to include those values and meanings that, for the Maori, are central to the conversation about land and economic survival, namely recognition and self-determination; and second, the similarly joint development of a process of negotiation that genuinely reflects the voice and stories of the participants. The first, for all its political unpalatability, will involve the linking of sovereignty and the management of the conservation estate with the substantive issues of the return of land. The second may facilitate the emergence of the State which is responsive not only to formal demands for rights but also to the manner in which those rights are articulated. Together they challenge the expectations that the formal state is the unique arbiter of right and remedies in a multicultural setting, and that the assumptions of political sovereignty and legalism require a single voice in the management of rights and resources. Together, too, they contain the possibility of an enriched model for the resolution of social conflict which weaves together-in ways we have not yet tried-the possibility of intercultural processes of negotiation, the healing of historical wrongs and the recognition of rights.

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