Monday, August 29, 2011

Q & A

At the hui-a-iwi held last Thursday in Kareponia marae a good cross-section of people from across Te Hiku got their questions answered about Ngāti Kahu’s application to the Waitangi Tribunal. For everyone’s enlightenment, I’ve summarized the kōrero in a question and answer format.

Why have Ngāti Kahu gone back to the Tribunal? Because negotiations reached an impasse, so the claimants told the negotiators to go back for binding recommendations.

Why did negotiations between Ngāti Kahu and the Crown fail? Because of ongoing Crown bad faith.

Will this hold up the other iwi? Potentially. They can settle their own claims where they have exclusive interests any time they and the Crown agree. But if they attempt to settle claims on lands and resources in which Ngāti Kahu hold an interest, this process may hold that up.

Who are we acting for? For all the claims which have already been investigated and reported on by the Waitangi Tribunal. Additionally we act for several claims lodged after the Tribunal report was released in 1997.

What redress comes from binding recommendations? We get a percentage of the lands under the Te Hiku (formerly Aupōuri) and Ōtangaroa forests, a percentage of the forest value, plus a percentage of the annual rentals paid by JNL. Additionally we get Rangiputa and Kohumaru stations, other SoE and education properties, and properties that have 27B Memorials on their titles.

However, we don’t get any pūtea to ransom back our lands from the thief, or the interest on those funds as per the 2008 AiP. Nor do we get our wāhi tapu sites or reserve lands, the social revitalisation funds or the Ngāti Kahu Statutory Board over DoC administered lands. In short we don’t get settlement. But seeing as the Crown uses settlement to extinguish the Treaty rights and status of those settling, that’s not as great a loss as some might make it out to be.

Who holds the redress from binding recommendations? The Tribunal decides, so the options will be part of legal argument presented to the Tribunal.

What happens to negotiations? After the Tribunal makes a binding recommendation, the Crown has 90 days to negotiate an acceptable settlement, otherwise the recommendations become binding. The negotiators will return to Ngāti Kahu during this time for instructions on any Crown offer.

Can hapu negotiate their own claims? They have been able to elsewhere. But for some unknown reason the Crown refuses to negotiate with hapū or individual claimants in Te Hiku o Te Ika.

What happens next? The Crown has to file its response to the Ngāti Kahu application this month. The Tribunal will complete its review of the Muriwhenua record of inquiry and readiness for hearing next month. There may be additional interlocutory steps required before the end of 2011. Appointment of a new presiding officer and panel will then happen, followed by the setting of dates and issues for hearings, hearings themselves-, consideration of arguments from all parties and a Tribunal decision, all hopefully in 2012.

Then, dependent on the outcomes of any negotiations during the 90 day period following binding recommendations, either a negotiated settlement will be processed for ratification by the Crown and Ngāti Kahu, or the recommendations will become final.

Tuesday, August 23, 2011

THE IK FACTOR

As I prepare to vote in the general elections later this year, I’m looking at the environment and carefully measuring every candidate and party for what I call the Ik factor.

I coined the phrase from the late Lewis Thomas who had the knack of writing about all sorts of things in a way I could understand. In one of his best known essays he considered the case of the Iks, an indigenous tribe of Uganda who had two disasters befall them in the 1960s. First they were displaced from their land to create a national park and consequently suffered extreme famine. Second they had a British-American anthropologist come live with and study them for two years, by the end of which he seems to have thoroughly despised them.

He recorded that they lived solitary and unloved lives, snatched food from their weakest members. defecated on each other’s doorsteps, and shouted derision at each other’s misfortunes. Even worse, they treated him as one of the family, meaning they showed him no love at all.

As a result he concluded that not only were they the grabbiest bunch of misery-guts imaginable, they were also proof that at heart humans are naturally inclined to be brutish and anti-social.

When I read that I felt sick because, although my experience said it wasn’t true, it reminded me of something. What? I go with Lewis who suggested that the Iks, in their despair, had gone mad and devolved into singular municipalities, even nation states of one, with no sense of familiness or social bonding to each other or their environment.

Yes, that was it. To illustrate, while such nastiness is still relatively rare between neighbouring whānau, we see Ikness between district and regional authorities every time there’s another spill of raw tiko into our waterways. It’s even worse between sovereign nations where warfare is widespread and whole oceans are polluted. Iks the most of them.

In this, as in every election year, the current government has made sure that any issue that might anger voters is either out of sight, or sopped into silence. Asset sales? Not this year. Protesting Māori? Leave them to mainstream media. Shoddy health and safety standards in our mines? Reinstate mine inspectors. Deepsea oil exploration? Off the table.

Will any of these silencers and sops last? Unlikely while parliament is full of Iks who see people as labour units and Papatūānuku as an impersonal resource that can be exposed to risk of pollution and sold to the highest bidder.

Back to Lewis. "Once you have become permanently startled, as I am by the realization that we are a social species,” he wrote in 1976, “you tend to keep an eye out for the pieces of evidence that this is, by and large, good for us." Ever since then, I’ve been keeping my eye out and it’s clear. Being a ‘social species’ is not only good for us it’s good for the environment. But only when we bring the Ik factor way down and treat Earth and each other as known and loved members of the whānau.

Monday, August 15, 2011

REVIEW

As they prepare to return to the Waitangi Tribunal, it is timely to review the Tribunal and its work, as well as that of the Crown, with regard to Ngāti Kahu.

The Waitangi Tribunal is a Crown appointed Commission of Inquiry established in 1975 to inquire into and make recommendations on breaches of the Treaty of Waitangi by the Crown. It is made up of people who have specialist knowledge and expertise in British culture and law as well as in aspects of tikanga Māori. It relies on claimants appearing before it to advise on the tikanga of each hapū and iwi making claims. From 1990 to 1994 Ngāti Kahu, led by McCully Matiu, sent many kaumātua to explain their tikanga to the Tribunal.

The Tribunal inquired into the actions of the British Crown, settlers and settler governments to find out whether they had complied with British law when they made claims to or took over control of Ngāti Kahu lands. The Tribunal found that they had not. Instead they had deliberately ignored and violated Ngāti Kahu tikanga in respect of their lands, repeatedly breached the Treaty of Waitangi, and stolen most of that land. As a result, the Tribunal recommended the Crown transfer substantial property back to Ngāti Kahu.

The fact that the Tribunal made the findings it did is extremely important. This is one part of the Crown telling another part of the Crown that it has acted illegally and that it now has very large and serious liabilities as a result. In terms of both Te Tiriti o Waitangi and the United Nations Declaration of the Rights of Indigenous Peoples, and in terms of its own laws, the Crown has little choice but to return what it stole.

All of Ngāti Kahu’s rohe has historical and cultural significance. Many of those places and their associated wāhi tapu have suffered severe degradation physically and/or spiritually when the Crown and its supporters have falsely claimed them, and when Ngāti Kahu have been unable to maintain full association as mana whenua.

Before European contact, Ngāti Kahu exercised its own laws and customs based on values rather than a rigid set of rules. Despite superficial changes after contact with Europeans, the essential nature of Ngāti Kahu social organisation, authority, leadership, tikanga, law, and protocols, has remained unchanged.

In 1840, Te Tiriti o Waitangi set out the conditions under which the Queen of England could exercise authority over her own British people and guaranteed that the rangatira of Ngāti Kahu would continue to exercise the same rangatiratanga that they had always exercised and that had been previously acknowledged in the 1835 Te Hakaputanga o te Rangatiratanga o Nu Tireni. It also guaranteed that Ngāti Kahu would enjoy all the rights, privileges and responsibilities of British citizens.

As the Tribunal has already found, the Crown has failed to honour these guarantees to Ngāti Kahu.

Monday, August 08, 2011

GHOSTBUSTERS

Last month, Te Runanga-a-Iwi o Ngāti Kahu lodged an application formally asking the Waitangi Tribunal to order the Crown to return all Crown forest and State-owned Enterprise lands in the Ngāti Kahu rohe. A mere four days after the application had been lodged, the Tribunal issued a memorandum in which it directed the Crown to respond by 5th August.

When the application was lodged I had fully expected a two-pronged attack from the Crown. First, it would claim Ngāti Kahu was holding up other iwi in the region from settling their claims. Second, it would try to delay any hearing so it could sort out the details of settlement with the other iwi this month, before parliament shuts for the general elections.

Sure enough, media reports quickly appeared saying that the other iwi’s settlements would be jeopardised if the Tribunal agreed to hear Ngāti Kahu’s application. These reports are total kaka. There is nothing stopping other iwi settling their claims. What they cannot settle are claims over lands in which Ngāti Kahu has an interest.

But it gets better. By the end of the month the Crown had sent a memo to the Tribunal saying it couldn’t respond to the application until Ngāti Kahu had provided further information. Quite apart from the fact that it is not for the Crown to dictate the Tribunal’s direction, it actually already has all the information it claims it needs.

Then, just four days after that delaying gambit, the New Zealand Herald ran a story saying that, so rarely is the power of binding recommendations used by the Tribunal, ‘that some have likened it to a “kehua" or ghost.’

Such a claim is astonishing. I have been intimately involved with land claims for almost three decades now, and I have never, ever heard anyone refer to the Tribunal’s power to make binding recommendations as a ‘ghost.’ Who are these nameless ‘some’ quoted by the Herald? They can only be Crown stooges. Certainly no self-respecting Māori would ever say such a thing.

However in the same report the Herald does quote another iwi’s leader saying he believed [Ngāti Kahu] was on a "hiding to nothing" with its application, because ‘the Haronga decision applied to land which originally belonged to a Māori incorporation.’

That is such utter gobbledegook that I must assume he has been misquoted. Anyone who has actually read the Haronga decision knows it applies solely to the duty of the Waitangi Tribunal to hold a hearing and make a decision on an application.

What next? Well, I expect the Crown to carry on trying to delay the hearing, to continue painting Ngāti Kahu as ‘bad’ and the other iwi as ‘good’, and to persist in urging those other iwi to settle fully and finally on Ngāti Kahu lands. I also expect the Tribunal to hear Ngāti Kahu’s application and make a decision based on law, not on politics.

Now that the kehua has been well and truly busted, the Crown should just get on with preparing itself for the hearing.

Kei a rātou.