David Williams: Be bold and talk about benefits of settlements

It is for the Crown and iwi negotiators to find ways to maintain public rights to land such as Te Urewera National Park. Photo / Alan Gibson

Tuhoe and Ngapuhi have different Waitangi Treaty claims but similar redress issues.

Some commentators have described as "horribly divisive" the possibility that Te Urewera National Park might be returned to Ngai Tuhoe, even with guarantees of continuing full public access and prohibitions on the sale of the land.

Just why this might be thought so divisive needs closer examination. Auckland citizens enjoy public access to Bastion Point and Okahu Bay.

Does it matter to ordinary New Zealanders that since 1991 the land is whenua rangatira legally vested in Ngati Whatua o Orakei, rather than Crown land - except perhaps that the tribe and the Auckland City Council manage it rather better than the Crown used to do?

People need to know that full public access to a national park is guaranteed, that tracks and huts are maintained, and that fish stocks in the lakes are conserved.

They need to be assured the land will be cared for and protected for future generations. The meanings of "ownership" are debatable in jurisprudential writings.

Concepts like ownership, co-governance, co-management, kaitiakitanga, mana motuhake are for Treaty settlement negotiators to haggle over. For ordinary citizens contacted by a polling agency, why should one legal concept or another really matter?

Why should the technicalities of ownership matter to trampers, hunters, fishers and campers who like to go to Te Urewera - or matter to public opinion commentators?

A Urewera tribal reserve was guaranteed to Tuhoe on many occasions by Ministers, Premiers, and Governors in the past, yet later Crown actions acquired the land in breach of those promises.

Privately owned land cannot be used in Treaty settlements. Somehow or other the Crown has to find a way to transfer Crown land in Te Urewera to Tuhoe if the Government is to meet its self-imposed target of providing redress to resolve historical Treaty claims by 2014.

Tuhoe did not sign the Treaty of Waitangi. The cession of sovereignty in the English version of the Treaty was imposed on Tuhoe without their consent. Compensation for the loss of independence and the consequent loss of lands have to feature in any redress package to Tuhoe on offer from the Government.

Meanwhile, Ngapuhi rangatira certainly did sign Te Tiriti o Waitangi in 1840. Their descendants at last have the opportunity to explain the meaning of that Treaty relationship in the light of the preceding Declaration of Independence in 1835.

The Waitangi Tribunal was established 35 years ago, but this year is the first time that the tribunal has ever met at Waitangi.

It is now hearing Ngapuhi evidence that despite the guarantees to their ancestors, Crown policies and laws unfairly and in breach of the Treaty and the declaration dispossessed Ngapuhi hapu of their ancestral lands.

If and when Ngapuhi negotiators sit down with the Crown to reach a settlement under the Treaty settlement policies in place under successive governments since 1995, some of the same issues that have arisen with Tuhoe will arise again.

What Crown-owned land is available as redress for the claimants? Earlier Treaty settlements laid down benchmarks governments are keen to abide by.

However, the apparent refusal to countenance land return arrangements to iwi that includes Crown title lands administered by the Department of Conservation is a severe threat to the chances of durable Treaty settlements by 2014, or 2020, or ever.

It is a cultural imperative for Maori claimants that, to the greatest extent possible, if land has been unfairly taken then land must be returned: riro whenua atu, hoki whenua mai.

In many parts of the country where Treaty settlements have yet to be concluded a large proportion of the Crown-owned land is DoC land. It is the conservation values and public access opportunities to those lands that are of genuine interest to all citizens.

It is for the Crown and iwi negotiators to find ways to maintain the public rights but yet also meet the political imperative of returning land to claimants if settlements really are to be durable.

This requires more flexibility in negotiations than has been displayed by the government in the last couple of months.

The Orakei model of Maori title to reserve lands that remain open to the public has worked successfully in the centre of New Zealand's largest metropolitan area for 19 years.

It is a model that might, with suitable accommodations to the needs of particular claimant groups and public interest groups, be applied in Te Urewera, in the territory of Ngapuhi, and indeed in relation to the various tribes with interests in the volcanic cones of the Auckland isthmus and islands.

Instead of pulling back from imaginative Treaty settlement proposals, the Government needs to find the political courage and will to talk up the benefits of durable Treaty settlements.

If Maori deserve, after exhaustive Waitangi Tribunal inquiries, to have certain lands "returned" to them in some way, then Crown negotiators must seek for ways to do so.

It is possible to maintain conservation values on land that is now Crown-owned even if future forms of legal ownership vest certain rights, governance and management powers in Maori.

* Dr David Williams is an independent researcher and professor in law at the University of Auckland.