Treaty settlements teeter at make-or-break stage

By PHIL TAYLOR, CATHERINE MASTERS and EUGENE BINGHAM

In 1995 Doug Graham wept joyful tears when the Crown settled with Tainui. As the first of the big deals it was the founding stone for Treaty of Waitangi resolutions.

En route to that moment in history, he'd become intimately acquainted with what iwi had lost and its impact. He was aware, too, that the agreement was a cornerstone in New Zealand history and a rarity worldwide.

Any tears Sir Douglas is likely to shed now would be of sorrow should the work done to date unravel, something he believes is a real risk.

His worry is that the central North Island claims will upset the apple cart and put the country back at square one. This is because it has the potential to cast a shadow over other settlements, prompting demands to renegotiate.

The benchmark settlements are the $170 million Tainui and Ngai Tahu each received. "If the benchmarks are breached I'll wipe my hands of it," Sir Douglas says.

Retaining the benchmarks was vital to the finality of these settlements. You could pass legislation with clauses that they couldn't come back, get the signature of the iwi member with most mana - the Maori Queen at Tainui - but, says the former Treaty Negotiations Minister, "the real thing which will hold the finality is the relativities".

"The discipline is holding your benchmarks and holding firm ... that was the discipline of the fiscal envelope, which no one could understand." It didn't mean one billion was the absolute limit - Sir Douglas expected the final total to be about $1.2 billion - but it gave a framework for keeping payments in kilter.

Tainui and Ngai Tahu have relativity clauses in their agreements, enabling them to come back if future settlements alter parity.

If in the future the Government agreed to give an iwi more, there would be a rush by other iwi wanting top ups, "and away we go again".

The risk for a blowout with the central North Island deal is partly due to the vast sum (about $250 million) held by the Crown Forestry Rental Trust for rentals for seven forests - including the giant Kaingaroa - which grow on land under claim.

Compensation for the land brings the total sought under this claim to $500 million.

The stakes are high in other respects. If successful, other claims are likely to adopt the fast-track method, which would make Treaty Negotiations Minister Margaret Wilson's 2015 deadline for completion of all claims realistic.

Joe Williams, Waitangi Tribunal acting chairman and chief judge of the Maori Land Court, says the deal will be difficult but can be done because the parties want it done.

There's greater co-operation between those involved - the tribunal and Government departments, the Government and claimants - and a desire to pick up the pace.

The tribunal is adapting. It's still a truth and reconciliation body, says Williams, "but in the past I think we have emphasised truth and forgotten about reconciliation."

But parties have to come together or the settlement could go wrong. It will require trust, which is why the Government is nervous about the foreshore and seabed claim which the Court of Appeal has sent to the Maori Land Court.

Sir Douglas believes the Government should pass a law confirming Crown ownership of the foreshore and seabed despite the risk of its being seen as an act of bad faith and derailing the central North Island settlement.

Otherwise he sees cases from various iwi claiming customary rights to their particular bay going on for decades. "In the meantime aquaculture development will come to a grinding halt. No one is going to invest if they think the seabed may be owned by someone else."

Having declared the Crown's ownership, ways should then be found to recognise customary rights, to fish and manage those coastal areas. These wouldn't be exclusive. Sir Douglas expects that, like Australia, New Zealand would recognise co-existing rights.

In a 2001 test case Australia's High Court rejected a claim for exclusive possession of 3300sq km of sea and seabed by Queensland aborigines but recognised they had an interest.

Sir Douglas sees no reason for public panic in the foreshore claims. "There's no question customary rights are there somewhere. Whether they go out 12 miles or to the continental shelf is a bit fanciful. But if they're non-exclusive ... [compensation wouldn't be great].

"From a practical point of view, I'm not certain it's in the interests of the country to spend 50 years horsing about trying to find something which at the end of the day turns out to be much less than Maori think."

Settlements are about re-establishing the honour of the Crown and there would be suspicion of such a unilateral action. It would, therefore, need to be clearly explained.

Intolerance to the settlement process generally arose from a lack of understanding.

Sir Douglas offers radio as an example. How could Maori who didn't know what a radiowave was, claim frequencies? "Put like that you wonder yourself. It was nothing to do with that, it was to do with Te Reo. How do you protect the language? By broadcasting. How do you do that? With a radio frequency. So without the language there wouldn't be any claim for the radio frequency. I had some difficulty in the Rotary clubs trying to explain that one."

He believes the settlement process is the reason we have few protests, little political vandalism or violence.

"I have no doubt at all we would be in some difficulties had we not tried to address these issues."

Grant Powell, a lawyer representing numerous iwi, says he used to be "a terrified Pakeha too" but recognises it as a global issue produced by colonialism. "These are standard issues around the world and yet we have a process ... that doesn't involve people running around shooting each other, or suicide bombers."



THE PARTY POLICIES

Labour

Treaty Negotiations Minister Margaret Wilson hopes 90 per cent of claims will be completed by 2015.

National

End historical treaty claims within a year of becoming government and deal with them within another five years.

New Zealand First

End right to make historical grievance claims, and deal with them expeditiously.

Act

Hear and determine all historical claims within five years and reject claims to rights not imagined in 1840, such as radio spectrum.

United Future

Set a $200 million-a-year limit to meet grievances, and settle historic grievances by 2010.

Greens

Increase resources for the Waitangi Tribunal and give claimants adequate resources to prepare and present cases.