KEY POINTS:
The Government should take careful note of criticism of its Office of Treaty Settlements from a judge of the Waitangi Tribunal. Judge Carrie Wainwright has been hearing a case brought this week by six iwi and hapu with treaty claims to parts of Auckland who say they have been sidelined by the Crown's settlement last year with Ngati Whatua o Orakei.
On the final day of their hearing this week, Judge Wainwright sympathised with them. Their treatment by the Office of Treaty Settlements had left them "disregarded and insulted", she said. Earlier she told the office's policy and negotiations manager that its procedures gave all the advantages to Ngati Whatua and caused tension with other iwi and hapu that had strong cultural, historical and whanau connections to the favoured claimant.
"You are not talking to them as claimants, you are talking to them as a people who are going to be affected by a proposed settlement with another group, a group with whom they have a relationship and a group with whom, in this case, they are related," she said.
This case is deeply disturbing. The small subtribe of Ngati Whatua that has been acknowledged as tangata whenua of the Auckland isthmus, North Shore, most of Waitakere and a slice of Manukau rejects and resents any challenge to its status and holds its history of migrations, tribal absorptions and occupations of the region to be beyond question.
The hapu was represented impressively by Sir Hugh Kawharu, who lived just long enough to see the treaty claim to fruition last year. Sir Hugh was a scholar of impeccable credentials and an assured leader who impressed all who met him. It is hard to believe that related people would receive anything less than fair and reasonable consideration in any negotiations he could oversee.
Judge Wainwright has made no criticism of Ngati Whatua. She directs her concerns entirely at the Crown's office and her comments are in accord with other criticisms sometimes made of the office's procedures. The office itself is a product of the impatience of politicians, and probably most people, with the time it takes to resolve historical problems. The office was set up to allow claimants to bypass the Waitangi Tribunal. The office made it known it was less interested in historical arguments and the detail of every grievance than in categorising claims and moving quickly to settlements.
The process seems to have become arbitrary and formulaic. On the Auckland claim, Judge Wainwright says more effort should have been made to include all interested groups in negotiations and not limit the focus to the "Crown's and Ngati Whatua agenda". The office had held not a single hui, she said, to let other groups express their interests.
In response, the office said the number of claimants, 29 individuals or groups, made comprehensive negotiations impossible.
If that was so, the office ought to have declined to get involved. Claims of such complexity are probably best resolved by a comprehensive inquiry such as the Waitangi Tribunal can make. The tribunal is notoriously overburdened, slow, cumbersome and ultimately powerless. But its findings do carry authority. Its interpretation of history may be too judicial for academic reliability but at least it can give competing ancestral accounts due recognition.
New Zealand's pre-colonial history relies on unwritten accounts of invasions, migrations, wars, intermarriage and occupations of land loosely defined. Overlapping claims can always be expected. They must be resolved by the claimants before the Crown becomes involved, and impatience is pointless. Reconciliation of all interests needs to take as long as it takes.
