Estimates Debate — Vote Treaty Negotiations

I want to speak to Vote Treaty Negotiations, at page 1261 of the estimates. When this vote was being discussed in the Māori Affairs Committee, I really looked forward to having some important questions answered and to gaining a greater appreciation of what the Minister is doing to secure the just, speedy, and durable settlement of Treaty grievances. Well, more fool me, because I should have known better than to have any expectations of this Minister, even low ones. The select committee process raised more questions than it answered. Trying to get this Minister to answer questions is like trying to pin jelly to a wall.

I can recall questioning the Minister about “large natural groupings”, because the Office of Treaty Settlements tells potential claimants that the Crown looks to negotiate with such groupings. But, certainly, one cannot tell what a large natural grouping is by following what the Office of Treaty Settlements does. For example, the Office of Treaty Settlements refused to engage with six claimant groups in Tāmaki, partly on the basis that they did not comprise a single large natural grouping, yet it happily negotiated with one of the four Ngāti Whātua whānui subtribes. It is that kind of behaviour that generates such uncertainty among claimant groups and creates such hurt and disillusion.

As of today, 19 final settlements have been reached. Fourteen settlements have required legislation, and five smaller but no less important settlements have not. Of the 19 settlements, 10 were taken from negotiation to final settlement under National in the 1990s, and negotiations on another eight were initiated by National. But since late 1999, under this useless Government, negotiations have been started and taken through to final settlement in—how many, I wonder?

Chris Auchinvole: How many?

CHRISTOPHER FINLAYSON: In just one, I tell Mr Auchinvole. The Minister told the House less than 4 weeks ago that 21 settlements have been completed, but the Minister has counted two settlements that have yet to have their legislation passed as being completely finished and requiring no further effort by this Government. I will leave other members to draw their own conclusions about the Minister’s arithmetical skills.

But perhaps the Minister’s careful attention to detail explains why the legislative process in this area has lurched forward with all the momentum of a beached whale. Under National, settlement legislation took an average of 9 months to be passed from the date when a deed of settlement was signed, but under Labour it now takes almost 21 months. Let us face it: the record of this Minister is very poor. It is even worse than that of his predecessor, whose main achievement was to put all negotiations on hold until she was ready for them. She will go down in history as the “Minister in Charge of Stopping Treaty Negotiations”.

When Mr Burton appeared before the select committee on 13 June, he assured us there were no problems with regard to the Crown’s negotiating process with Ngāti Whātua, yet 2 days later the Waitangi Tribunal delivered what was probably its most damning indictment of the Crown ever. The tribunal condemned the Crown’s behaviour as “cavalier”, “unfair”, “generally uncooperative”, “providing only partial answers to questions”, and “being less than open” in its dealings with the tribunal. The tribunal referred to the Crown’s behaviour as leaving other tangata whenua groups feeling degraded and insulted. Yet we had the spectacle of this Minister telling the select committee that the Crown’s behaviour was acceptable. The question that really does need to be asked is whether the Minister is even aware of what is happening in his own portfolio.

What is clearly needed in the Treaty settlements area is political leadership and some real enthusiasm for the job. We had political leadership under National, with Jim Bolger and Doug Graham; we have not had it in the 9 dreary years of this Clark-led Labour Government. Just a few minutes ago we had the Minister going on in his pre-prepared speech about the so-called awful 1990s. Labour members love talking about the 1990s. Well, one thing they do not talk about from the 1990s is the record of the National Government in the Treaty settlements area. They know that under Doug Graham and Jim Bolger that record was outstanding, and they also know that under this Government the performance is quite simply lamentable. This Minister is a failure, and his predecessor was a failure. I am sure that all Māori look forward to the day when National can take the Treasury benches and finish the job.

There we have heard from the member who came to this House pompously, telling members that they should play the issue, not the man. But, ever since, he has been incapable of getting to his feet without giving personal abuse. In every single speech the member has had the gall to stand up and read that vitriolic drivel, then accuse others of giving pre-prepared speeches. I say to Mr Finlayson that in the last speech he delivered in this House on a matter of a particular bill, he commented on the further delay for the delivery—[Interruption] Well, if that member would be quiet for once, he would hear that I am talking quite specifically about the Treaty settlement process.

One of the reasons the settlement process requires time is that increasingly in this House there are those who will sacrifice principle for cheap political point-scoring. Let me give members an example. Two reasons were given by the National Opposition recently for its opposition to the progress of Te Roroa Claims Settlement Bill—

Chris Auchinvole: Is this not a Treaty settlement?

Hon MARK BURTON: Yes, it is a Treaty settlement, sir! The member should listen. The first reason was the failure to return kōiwi. I have to say that the member has been informed repeatedly that they have been returned. They were returned years ago, yet the member cited that as one reason. He did that on public radio—I have the transcripts. It was one of two reasons he gave for National’s opposing both the settlement and the will of the people who were the mandated representatives.

The second reason for National’s opposition to the bill was the failure to return the taonga of the burial chests, which were moved from the caves in 1902. Again, that matter has been resolved with the people from Te Rōroa. In their view, because the matters of the taonga are disputed in terms of the various tribal interests, they should be left where they are for the time being until tangata whenua can sort it out among themselves in a manner appropriate to them. I accept that others in the House perhaps do not support the settlement, for their particular reasons—fair enough. We may agree or disagree. But for the National Opposition to give two reasons that are factually incorrect, and for one of its members to get up and make fatuous speeches in this Chamber, simply beggars belief.

This process, I tell Mr Finlayson, requires honesty and integrity of engagement. That member sits, stands up, and makes silly speeches that are absolutely factually incorrect. I ask the member to consider carefully the fact that he has brought his party, an entire party, into opposition against the will of a group of mandated negotiators for two reasons that have no basis in fact. Therein lies the problem with the Treaty negotiation process: it is the easiest of areas in which to score cheap political points.

I will acknowledge that Doug Graham did some good work in this area. But I also say to the member—as Doug Graham would himself—that it was not all done well. It was not all done correctly. Mistakes were made, and we learn from those experiences. Certain settlements were in disarray at the time of the change of Government; they fell apart within weeks, actually. Two settlements that people attempted to rush through fell apart within weeks. The point is, I tell Mr Finlayson, that to make progress with the settlement process requires honest engagement and integrity—something that clearly is lacking in the sort of presentation we have seen from that member. And that will not do.

Tēnā koe, Madam Assistant Speaker. Kia ora tātou e tēnei pō. Six months ago, not far from here down at Pipitea Marae, there was a gathering of some 45 lawyers, a number that by all accounts appears to be unprecedented in the history of the Waitangi Tribunal. They were brought together by the call from Judge Carrie Wainwright to attend a judicial conference in response to the complaints from more than 50 Māori groups concerning unfair and prejudicial treatment by the Crown’s Treaty settlement process.

The report of the Māori Affairs Committee on Vote Treaty Negotiations gives little hope that there has been any change to this dire situation. The report describes the Minister assuring the committee “that officials acted in good faith but that the document discovery process was inadequate at the time”, that an “exercise of judgement is required”, and that further advice on the process is required “to ensure that such oversights in the supply of evidence to claimant groups will not be repeated.” The key words are: “inadequate”, “exercise of judgment”, and “oversights”. What the Minister could have said comes straight from the report of the tribunal into the Tāmaki-makau-rau settlement process—namely: “The Crown’s policy and practice have been unfair, both as to process and outcome.” In reviewing the 2007-08 appropriations, we cannot ignore the conclusions of claimants and the tribunal that fair and equitable settlements are being thwarted by inequities in the terms of settlement, the fact that proposed redress has been set aside, and a process too flawed to achieve progress.

Indeed, so desperate is the situation that the Waitangi Tribunal report on the Tāmaki-makau-rau settlement process urged that Crown negotiations with Ngāti Whātua o Orākei must be halted immediately. This crisis seems to have fallen on deaf ears, although the select committee cuts to the chase. In relation to concerns that the Crown had not consulted with other tangata whenua throughout Tāmaki-makau-rau, the Minister assured the committee that “… Ngāti Whātua o Orākei has engaged extensively with other claimants,”. Who will take responsibility for the Crown’s failure to interact with cross-claimants, as it promised, and failure to provide accurate information about their status in negotiations, evidence the tribunal described as being provided “late, reluctantly, and piecemeal”. This is not just a one-off, isolated crisis. Less than a week after the Tāmaki-makau-rau report was issued, the tribunal released another damning report, this time stating that during the Crown’s process in Te Arawa: “OTS failed to act as an honest broker in the negotiation process … failed to discharge its Treaty and fiduciary duties to all Māori … OTS did not act honourably and with the utmost good faith.”

Under the Treaty of Waitangi Act 1975, section 8I, “Annual report on implementation of recommendations”, the Minister of Māori Affairs, apparently, is required to report on progress each year. Well, the Minister has not tabled a report at all since 1995, but apparently will do so in the next couple of weeks, in order to catch up for 12 years. Well, he may as well not do it now, because the Waitangi Tribunal has done the job. Twelve years of no monitoring by the Minister is not good enough, and our people expect more.

There are longstanding concerns of claimants. The select committee report makes it quite clear that despite the unanimous and ferocious opposition to the 1992 fiscal cap, the Government is working to a fiscal cap—a cap that has continued to be applied to the Treaty settlement process since day one. The report spells it out as a general assumption of three $19 million settlements per year. We believe that it is essential that claimant funding needs to be reviewed and increased so that all parties are on a level playing field. As part of this, the fiscal cap on Treaty settlements must go. The Māori Party will not minimise the actions of the Office of Treaty Settlements as being mere oversights—oversights that the tribunal views as “cavalier, unfair, and generally uncooperative”. Something needs to change today.

The tribunal has concluded that in many cases the process of settling is damaging more relationships than it is improving. It is in light of this that we in the Māori Party are calling for an independent settlements authority to achieve greater resolution to settlements, so that settlements can be settled earlier, fairly, and with a broad consensus for the process. The Māori Party will not ignore the urgency of an underfunded and oversubscribed tribunal. We know that the tribunal needs to be resourced sufficiently so that it can deal with claims more speedily.

In closing, I want to return to the Minister’s words in response to the 2007-08 estimates in Vote Treaty Negotiations: “inadequate”, “exercise of judgment”, and “oversights”. What we in this House, and, indeed, others outside, want to hear is a commitment to ensure impartiality, fairness, greater transparency, faster processing, and better access to mediation. The time for oversights is well and truly over. What we in this House want to hear is a commitment to justice—Treaty justice. Kia ora tātou.

It is a privilege to take a 5-minute call in what we consider to be an important debate. I congratulate the current Minister and the previous Minister, in their role as Minister in charge of Treaty of Waitangi Negotiations, on the incredible work they have achieved over the last 9 years. Certainly, it is a track record that no one in this Chamber can criticise when he or she considers the difficulties that any Minister, or any Government, faces in dealing with historical claims. It is interesting that in the Committee today we have heard more about the recent findings of the Waitangi Tribunal in relation to the processes of two particular claims than about the position in which those tribes, those iwi, who have settled over more than 9 years are now in, in terms of building a future for the generations that come after them. That, without a doubt, is the biggest issue we need to talk about.

We talk a lot about the acceleration of Māori economic development and the opportunities that have emerged for Māori entrepreneurs. Those opportunities have been capitalised on, and the settlements that specific iwi have received have grown as a result of the support from this Government and the entrepreneurial skills of iwi. It is easy to criticise, but it is very, very difficult for anyone in this Chamber—although I have heard it here today and on many previous occasions—to get up and congratulate those who are responsible for accelerating Māori development, particularly where Treaty settlements are concerned.

I heard the previous speaker from the National Party, Chris Finlayson, boast about the record of the National Party when in Government. Certainly, he cannot take any credit for that. Those in the National Government in the early 1990s who pioneered what we call the historical claims have all left this House. They have all left. There are no longer any of those types of people in this House. So if that member thinks he is going to fill the big shoes of Doug Graham, Doug Kidd, and all those who supported the Treaty settlements in the 1990s, he is kidding himself. I heard his contributions the other day at the Māori Affairs Committee. They were not progressive or productive; they were actually driven from a negative base, and I think that that is what we will see from that member during the rest of his time in this House, short as it may be.

I want to go back to the issue regarding Māori development. The Minister in charge of Treaty of Waitangi Negotiations, the Minister of Māori Affairs, and myself last week attended a hui in Turakina to sign off the deed of settlement for the Ngāti Apa claim and to acknowledge the important work that has been done by the local member, Tariana Turia, to encourage her people to the negotiating table. Her son, and her nephews and nieces, also contributed to bringing this settlement to this stage. We spoke to her people and heard the excitement, the positive attitude, the determination, and the kōrero that came from them on that particular day when they looked to the future and said: “We are going to do something. We are going to build a future for our mokopuna.” That is something that no one in this Chamber has a right to trample over, and that can be said about many of the claims that have been settled today.

In respect of the Kaihautū Executive Council for Te Arawa, in terms of Te Pūmau-tanga o Te Arawa and their settlement, although the tribunal has made some scathing remarks about the process towards the settlement of that claim, it did not say that the claim should not proceed. I am sure that most members on this side of the Chamber are determined that we will proceed with settling this outstanding claim. There are 27,000 Te Arawa people who are looking forward to an opportunity to put the grievances of the past behind them and build a future for themselves. Come what may, at least their future, their self-determination, is in their own hands. Who in this Chamber would deny them that?

There are issues around the process. We encountered a number of flaws in the process when we came into Government in 1999, and we have worked diligently to overcome those flaws. Of course, there is an attitude that one size fits all, in terms of claimant groups. Well, that is not the case. Different issues and new issues arise every time we deal with a different group. I can say on behalf of those of us on this side of the Chamber, to compliment the Minister and previous Ministers, that those issues are taken on board and dealt with at the time. Kia ora, Madam Chair.

I rise to take a call on this particular debate in the first instance to rebut some of the issues that were raised by Mr Finlayson. The Treaty settlement process in and of itself is a very difficult process. In fact, it would take a very brave person across this Chamber to take on this portfolio, because by its very nature the whole process of reconciling historical grievances—and we know how disparate our past has been throughout this country—is a very difficult process. So any suggestion that this Minister in charge of Treaty of Waitangi Negotiations is not interested in trying to get a genuine outcome is flawed, should not be tolerated, and is not accepted by this Government. In the second instance, in respect of the nature of how the Treaty settlement process began, far be it from me, who knows probably on both sides of the table how difficult it is to get an outcome, to stand here defending in and of itself the Office of Treaty Settlements. However, the office plays an important role in order to achieve an outcome.

Let us look at where Treaty settlements started with National. By definition of the process that National started, by and large the whole assumption was that a large natural grouping would be the basis upon which it would enter into negotiations. Both Tainui and Ngāi Tahu are evidence of that in itself. At not one point through this process has National ever said that it would ever go to Treaty settlements on a hapū by hapū basis. National has never said that, and it should come clean, because it is clearly raising expectations that it does not intend to deliver on, and that it is criticising the Government for. However, National started a process, and we are really trying to work forward and learn over time from a range of Treaty settlements that have been resolved.

The other issue that I want to address very briefly is the issue of quantum. Everybody could say, hand on heart, that a certain dollar figure should be ascribed to various Treaty settlements, and I am sure that Māori members would be the first to try to get the best opportunities for their region, but we have to ensure that the genuine ability to ensure an outcome that is not just about quantum but that is about returning resources and taonga to iwi is a genuine part of this Treaty settlement process. This is where I think the Government has made some advance to the benefit of iwi—not merely on a dollar-value quantum but also on cultural redress. We have seen here the ability to include, in quite innovative ways, aspects of cultural redress that restore confidence that this is an attempt to try to get an outcome that meets the needs of local iwi in trying to get a settlement. The other issue—and this is one that I think people look at all too scantly—is the role of the Waitangi Tribunal. If it was the role of the Waitangi Tribunal to give out binding recommendations, you bet your bottom dollar that the tribunal would be considering very carefully exactly what it said, because of the implications.

But let us not stop there. By and large, iwi should have the right to go towards direct negotiations. Some may not choose to go to the tribunal; that is their choice. I will not sit here in judgment and say which is the right way or the wrong way. However, should iwi across the land decide to go into a direct negotiation process with the Crown, boots and all and accepting, warts and all, that this is a head-to-head opportunity to get the best outcome with people talking to people, then we should preserve that ability. It takes courage, it takes leadership, and it is a difficult choice to make. But none of us in this House can make it. We have to leave the ability for direct negotiation from iwi to occur unfettered by everybody’s opinions. So I think that really is an important point that is always overlooked in terms of the voice of the tribunal and the types of recommendations it makes. We need to take into account that iwi continue to want to preserve their ability to have direct negotiations with the Crown.

Whether an independent panel will actually achieve the type of outcome that was being proposed by the previous speaker for the Māori Party, I think remains to be seen. I think, at the end of the day, that any genuine attempt to get an outcome that is durable in the eyes of those negotiating the outcome must be upheld by this House of Parliament. It is woeful that National has adopted the tactic of not supporting various Treaty settlements that have gone through this House since the time we have been in Government. It is woeful, because it signals that there is no confidence at all to go down a path of reconciliation. We just cannot, as members of Parliament, be sending that kind of message to New Zealanders, who really want to move on. They want everybody to try to resolve these grievances and move on. Thank you.

Vote agreed to.

Vote ACC