Hone Harawira: Ngapuhi's settlement role critical to future of Treaty

Protest banners during the Waitangi celebrations held at Waitangi. Photo / Dean Purcell

In the 1877 case of Wi Parata versus the Bishop of Wellington, Chief Justice Prendergast said that because the Treaty of Waitangi had been signed "between a civilised nation and a group of savages" and had no formal status in domestic law, it was essentially "null and void".

Outrageous though that may sound, the reality is that Treaty settlements are being signed off for less than 3 per cent of their value, and the phrase "null and void" is simply being replaced by another ... "full and final".

And as fate would have it, Ngapuhi's place in the whole Treaty saga is about to come full circle for, just as Ngapuhi was the birthplace of Te Tiriti o Waitangi, so too does Ngapuhi provide the basis for our future understanding of Te Tiriti.

The Government already has "full and final" deals with most other iwi, and in particular the big players like Tainui, Ngai Tahu and Ngati Porou, but they can't effectively claim to have settled the Treaty until they can bring the biggest tribe in the country to the table.

Once Ngapuhi's signature is on the Deed of Settlement, the Crown will have achieved "full and final" settlement of all major iwi claims, at which point the Treaty will have finally achieved the status conferred upon it by Chief Justice Prendergast in 1877 ... it will to all intents and purposes finally be "null and void".

And I doubt that any of our tupuna who signed Te Tiriti o Waitangi back in 1840 would have even contemplated let alone agreed to either scenario.

That's not to deny hapu and iwi the right to seek justice for the wrongs committed, seek redress for those wrongs, seek compensation for their losses, or settle their historical grievances with the Crown. Too much loss has been suffered, too much pain inflicted, and too much poverty created for Maori not to seek redress.

But, even in the best of times, any honest Maori would admit that the Treaty settlement process allows for only one real winner - the Crown.

Government alone laid down the parameters of the debate, set up the Waitangi Tribunal to hear claims, defined the powers of the tribunal, decides who can sit on the tribunal, specified the terms of the hearings process, says which lands are available for claim and which ones aren't, set a 3 per cent ceiling on all claims, outlined the requirements claimants must meet before negotiations start, included a "full and final" clause in all settlements with no right of appeal, and established a process that pitted hapu and iwi against one another, creating disputes that may take generations to resolve.

The desire of hapu and iwi to seek resolution so settlement resources can be used for development is understandable. Even though they know the offer doesn't match what was taken, they also know it's the only offer they've had in the past 170 years and it'll be the only offer their mokopuna will see in the next 170 years.

You can't help but be impressed by their determination to engage in a process that is so ruthlessly engineered against them, and you have to admire the perseverance, humility, courage and determination of those who brought their settlements to a conclusion (even when you know the deal stinks).

But, importantly, I don't think our tupuna signed Te Tiriti in 1840 so "full and final" settlement would be reached in 2014 or that Te Tiriti becomes "null and void" when the settlement process is over, or that the promise of partnership raised is ended at the signing of a settlement.

And that's why Ngapuhi's role is so critical to the future of Te Tiriti o Waitangi.

Ngapuhi are close to having their mandate settled. Pundits predict it will go to the runanga's chosen entity Tuhoronuku, who will then have authority to enter into direct negotiations with the Crown leading to a settlement.

Meanwhile, Ngapuhi have also been engaging in one of the greatest ventures of their modern history - the claims hearings being driven by Kotahitanga, the hapu-based collective opposed to the mandate going to Tuhoronuku.

These hearings have drawn in thousands of Ngapuhi, and created a deep historical record that never existed before.

I firmly believe Ngapuhi's success needs both the runanga to nurture, protect and build on the symbolical authority of the Ngapuhi ethos and Kotahitanga because it gives life to the saying Ngapuhi Kowhao Rau (Ngapuhi of a hundred homes).

I pray that the leadership of Ngapuhi is bold enough to step away from the mandate, to defer negotiations until the hearings are over, to create space for Tuhoronuku and Kotahitanga to settle the terms of a structure that can act in the best interests of all descendants of Ngapuhi, and to lead the national debate about the proper future of Te Tiriti o Waitangi.

For all its chequered past, Te Tiriti o Waitangi is rightfully regarded as the founding document of this nation.

The timing is right for Ngapuhi to step up to the challenge of ensuring Te Tiriti becomes a central plank in the constitutional transformation of Aotearoa, and the opportunity that it presents to redefine the future for its own descendants.