28 July 2020
Opinion: “What is pragmatic and what might be principled does change from one era to another.” David Williams on private land, grievances, and Ihumātao.
Sooner or later, whether by this government or the next one, a resolution will have to be found to settle the grievances highlighted by the SOUL occupation of land at Ihumātao.
It will also need to consider the competing interests of Fletcher Building and others interested in building residential dwellings on land in, and adjacent to, one of the oldest visible sites of tangata whenua occupation in Aotearoa.
One of the perceived political difficulties to arriving at a settlement that will attract broad public support is that “private land” is involved. But this is a red herring that misleads and distracts us from the relevant and important questions.
For a start, under legislation enacted by the Fourth Labour Government in 1988, any land owned by a private person or company that was once State-Owned Enterprise land, and has since been privatised, may be compulsorily returned to Māori claimants. That’s if the Waitangi Tribunal exercises its power to issue a binding recommendation in relation to that land.
Secondly, there are instances of private land being returned voluntarily to Māori in the wake of Waitangi Tribunal inquiries.
For example, following Planning Tribunal hearings and the Waitangi Tribunal’s inquiries into the claims of Te Puaha ki Manuka to the Manukau harbour and its environs, Turner & Growers became aware that land they owned near the airport included an ancestral urupā.
Of their own volition, Turners & Growers gifted that land and it was returned to the mana whenua, Te Ākitai Waiohua. New marae buildings now stand next to the land at Pūkaki.
Those Waitangi Tribunal hearings, incidentally, were held at Ihumātao marae.
An instance of a Treaty settlement involving a voluntary deal with private land that I’m aware of concerns the site of Whakahuranga Pā on Tāpora peninsula, looking over one of the arms of the Kaipara harbour.
This important ancient pā site had been partly owned by the Department of Conservation and partly owned by the adjacent farmer. After a boundary adjustment to grant some equivalent area of DOC estate outside the pā to the farmer, the whole pā site became cultural redress provided to Te Uri o Hau.
There is nothing in principle wrong about such voluntary arrangements, in my view, even though private land was an element in attending to justified Māori grievances.
The fuss about perceptions that private landowners might be coerced into ceding land to the Crown for return to Māori goes back to a vigorous campaign by some Aranga farmers, led by Alan Titford, at the time of Waitangi Tribunal inquiries into the claims of Te Roroa, which were held at Kaihū and Waipoua in Northland.
Allegedly, it was local Māori who burned down the Titford home to intimidate those farmers. The local MP, Ross Meurant, persuaded the government of the day to amend the Treaty of Waitangi Act in 1993 so that the Waitangi Tribunal may not make any recommendations for the acquisition by the Crown of any private land.
That restriction on the Tribunal remains to this day, even though Titford himself has served time in prison following his conviction for a number of criminal offences — including the arson of his own home.
Nevertheless, of course, nothing in the 1993 Act prevents the government itself deciding to engage in the acquisition of land or to set money aside to settle grievances — whether of Māori or anyone else.
The Waitangi Tribunal is a permanent commission of inquiry and its ordinary recommendations may be accepted, delayed, or rejected by governments for whatever good, bad, or pragmatic reasons appeal to ministers of the Crown.
The same applies to the recommendations and findings of royal commissions.
In 1927, the Sim Royal Commission reported on the raupatu confiscations of Waikato lands under the New Zealand Settlements Act 1863, including south Auckland blocks designated as covering “Mangare, Pukaki, Ihumata and Kerikeri”.
It found the confiscations to have been “excessive” and recommended the payment of an annuity to a tribal trust board. That wasn’t implemented until the Waikato-Maniapoto Maori Claims Settlement Act 1946 provided for £5,000 per year to the Tainui Maori Trust Board for future education, health and suchlike purposes.
It’s obvious enough now that that settlement did not address the fundamental injustices of confiscating land from those who did not wish to sell it and some of whom fought in self-defence to try to retain it.
Since 1995, there have been Treaty settlements with various Waikato iwi beginning with the Waikato Claims Settlement Act 1995 signed into law by Queen Elizabeth II herself.
None of these settlements have provided anything approaching full and fair compensation for the lands wrongly taken. They provide extremely modest “redress” devised by pragmatic politicians and Treasury calculations and then offered by the Office of Treaty Settlements — now Te Kāhui Whakatau (Treaty Settlements) — to “large natural groups” of Māori claimants.
What is pragmatic and what might be principled does change from one era to another.
The miserly annuity payments to tribal trust boards agreed to by the First Labour Government in the 1940s did not bring finality. The grievance settlements agreed to by the Muldoon-led National government in the Orakei Block (Vesting and Empowering) Act 1978 and the Tauranga Moana Maori Trust Board Act 1981 did not prevent later Bolger-led and Key-led National governments enacting more generous settlements in the Orakei Act 1991 and in recent Tauranga settlements.
Under the present Westminster-style constitution in this country, giving weight to the guarantees of rangatiratanga in the Treaty of Waitangi is merely a factor that may or may not be taken seriously by successive governments.
Cabinet, the head of the executive branch of government, has the discretionary power to decide how to settle grievances raised by citizens. It may decide on a Treaty settlement policy, as it did in 1995, with a $1 billion fiscal cap for the settlement of the historic Treaty claims of all iwi within 10 years.
It may, as it has, revise that sum. And it may develop new mechanisms (not offered to iwi who settled earlier) to achieve agreed Treaty settlements.
It may — and did, in May 2000 — agree to pay $120 million in compensation to assist the West Coast economy when government policy ended native timber logging. It may, and did, agree to make very substantial funds available to re-open the Pike River mine.
In the case of the land at Ihumātao, the government has to balance and take into account the viewpoints and interests of SOUL, Fletcher Building, Kīngitanga, Te Kawerau a Maki, Ihumātao residents, other south Auckland iwi, the Auckland Council, the Historic Places Trust, and citizen representations.
There are various moral, legal, political, or other considerations that may predominate in cabinet ministers’ thinking when working out how to resolve this long-standing grievance.
One factor that need not — and in my view, should not — weigh in the balance is the mere fact that private land is part of the factual matrix.
Professor David V Williams FRSNZ is Professor Emeritus at the Law School.
This article reflects the opinion of the author and not necessarily the views of the University of Auckland.
Used with permission from E-Tangata Settling Ihumātao
A shorter version of this article was published by Newsroom Cabinet has every right to settle Ihumātao 28 July 2020.
Alison Sims | Research Communications Editor
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